Over the past seven years, the practice of enforced disappearances has become a small but routine part of law enforcement in Bangladesh. State bodies, for a variety of reasons – political, law and order, and financial – pick up people and, instead of bringing them to court within 24 hours, keep them in secret detention. They deny having ever taken them, and after holding them illegally for days, weeks or even months, either kill them or formally arrest them after pretending to have just detained them.

A few men are also released without arrest, though they are then usually pushed over the border into India, where they are arrested by Indian officials for illegal entry. This, though, is a relatively new practice.

When the Bangladesh Nationalist Party came to power in 2001, extra-judicial killings were the main concern at the time. However, since the Awami League took over after the elections in 2009, disappearances have become part of the country’s criminal justice system, with at least 320 people secretly detained for various periods of time. In this year alone, human rights and media organisations report over 75 people were secretly detained, of whom 13 were subsequently killed, 18 remain missing and the remaining are shown to have been arrested.

On Tuesday, newspapers, citing eyewitnesses, reported that the paramilitary Rapid Action Batallion had picked up three activists of the Bangladesh Nationalist Party’s youth league in Natore district on Saturday, and that their bodies, bearing wounds from gun shots fired at close range, were found on Monday.

The obvious question is, how do the Bangladesh government and law enforcement authorities get away with flouting the most basic principles of due process and law?

More specifically, why is the High Court not stepping in and using its constitutional powers to ensure the enforcement of law and the immediate release of those detained?

No use moving court?

One answer to this is that the families of the disappeared very rarely approach the courts – and this is not just because many of them do not have the resources to hire lawyers or are unaware of their legal rights.

It is because these families are often advised against taking legal recourse. Lawyers tell them two things: The first is that doing so could jeopardise the safety of their relative by triggering the state into killing the unlawfully detained person. And second, the court will not, in any case, pass orders that will force the state to release the person.

There is no evidence to support the fear that a court process will trigger state murder. Arguably, it does the opposite and is protective of the detained person. Nonetheless, there is a strong perception among many lawyers that the safety of those in detention depends on their families not publicly campaigning for their release – a view that is given credence by the threats such families receive from people associated with the government or law enforcement agencies.

There is more support for the second reason the lawyers offer families about why they should not go to court.

One of the very few habeas corpus applications – a recourse in law under which a person can report an unlawful detention – to be filed in a case of enforced disappearance involves Salauddin Ahmed, a joint secretary general of the Bangladesh Nationalist Party who was picked up in March 2015. Ahmed’s wife filed the application shortly afterwards and the court passed a preliminary order requiring various state bodies to explain why they should not be ordered to bring him to court. However, when the law enforcement bodies denied having picked up the Opposition leader or ever having had him in their custody, the court simply passed an order seeking a report from the Home Ministry every six months on the results of their investigation into the disappearance.

Because of cases like this, lawyers are of the view that courts in Bangladesh are not strong enough – or, in some cases, too politicised – to stand up to the state authorities.

This is the impression one gets when looking back at two cases where human rights organisations challenged mass extra-judicial killings in the country – one case dates back to 2006, when the Bangladesh Nationalist Party was in power, and the other to 2009, at the beginning of the Awami League period. After passing initial orders asking law enforcement bodies to respond to the claims, the courts held no further hearings and gave no orders, interim or final. The cases just died.

Activists silent

In such as scenario, one may understand why the families of the disappeared do not take the judicial route to find their loved ones. But it is difficult to appreciate why no human rights organisation has filed a public interest writ in any (or all) of the cases, seeking the release of the illegally-detained men, independent investigations and other orders from the court.

Clearly, their lack of success in the past in getting the courts to pass substantive orders to stop extra-judicial killings may well have had some impact. However, their current reluctance to approach the courts over the enforced disappearances seems to have more to do with partisanship and fear.

Many of the disappeared are Opposition activists, and the human rights organisations do not want to be seen as supporting them. They also fear that doing so would make them vulnerable to harassment at the hands of the government. Odhikar, one of the country’s two main human rights bodies, has already had its funding blocked, its members arrested and is being investigated for money laundering.

Judicial apathy

While cases may not be coming to the courts, nothing is stopping the High Court benches from passing suo moto orders. These are not uncommon and judges in Bangladesh have acted on their own after reading media reports about rights violations that they feel require judicial scrutiny.

Seven years ago, in November 2009, the High Court took up the matter of two disappearances on the basis of news reports. One newspaper article was about a press briefing by one Bablu Khalashi, who claimed his father and uncle, Lutfor and Khairul Khalashi, had been arrested by the Rapid Action Battalion but had not been handed over to the police. He feared the two may have become victims “of an encounter killing”. The second article reported that the two men had indeed been killed in “crossfire”.

On November 17 that year, the court passed a suo moto order calling on the paramilitary force’s director general and the home secretary to show cause within 48 hours “as to why appropriate action shall not be taken against [two Rapid Action Battalion officers] and their companion for the liability of killing” the two men. It also sought “an explanation by the director general of RAB as to such heinous activity now continuing in his battalion”.

The force dismissed the media reports as “baseless, false and motivated” and said no “operation whatsoever was conducted by the RAB 3 and RAB 8 at the alleged place of occurrence”. In an affidavit, it also stated that one of the officers mentioned did not exist. Pointing out that the police were investigating the two deaths, it added that ‘if this Hon’ble Court passes any order in this instant rule, the investigation process of the case will be frustrated”.

On November 23, the court asked the force for more details of the officers involved in the detention of the two men. At the next hearing on December 14, the government sought more time and the court scheduled the next hearing for January 11, 2010, even as it told the attorney general to inform the authorities not to kill any more people in the name of crossfire, encounter or gunfight till then.
However, on January 7, five days before the hearing, the chief justice reconstituted some of the High Court benches, which resulted in the two judges who had given the suo moto rule being assigned to different benches.

It is the responsibility of the office of the chief justice to assign cases such as this one to other courts. But the chief justice of that time, Justice Md Tafazzel Islam, retired a month later without re-assigning the case. Neither did the three others who came after him. No further hearing was conducted and now, the case file has gone missing.

There have also been no other suo moto orders by the High Court over disappearances since then.

Needed: A proactive High Court

There is only one institution that has the power to control the executive in its unlawful use of detention powers, and that is the High Court and its appellate division.

The court is clearly concerned that law enforcement agencies follow the law while detaining people. This was evident when its appellate division set out a series of principles for the police and magistrates to follow during detentions.

But in the meantime, the High Court has clearly not responded to the human rights crisis playing out with enforced disappearances continuing unabated. If the families of the disappeared and human rights organisations are unwilling to bring cases to court, it surely must be up to the court to take up the challenge itself.