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Eminent scholar Farhad Mazhar Abducted this Morning

EDITORIAL
Laudable rescue of Farhad Mazhar

Much to our relief mixed with a sense of joy and repose, distinguished intellectual, litterateur, social activist, author, newspaper columnist and eloquent orator Farhad Mazhar was rescued by the RAB, police, BGB and other law enforcement agencies on 4 July 2017 returned unscathed to his family members after an 18-hour long traumatic anguish. Mazhar is an iconic figure; his admirers were great philosopher Jacques Derrida, Nobel Laureate Nadine Gordimer, eminent Indian novelist Mahasweta Devi and so on.

Indeed the competence of the law enforcers in this particular case is laudable; nevertheless questions are extant and hang in the air regarding the terrible occurrence that began in Dhaka and ended over 200km off Khulna. Hence disquiet and confusion persist as on the fairly long route the alleged “white microbus” of the three abductors evaporated and could not be traced after long 10 days.

Almost nothing could be divulged by the victim, Mazhar, 69, hospitalised at the BIRDEM in Dhaka, all these days after the incident. However, London based daily Guardian obtained his interview from his hospital bed in Dhaka. It is the first time an alleged abductee in Bangladesh has spoken publicly to domestic or foreign media. A critic of the government, Mazhar alleges he was the latest in a wave of activists and opposition figures to be abducted says he will not be silenced by the ordeal and will continue to campaign against human rights abuses. [Vide Michael Safi, South Asia correspondent, 12 July 2017: https:/ /www. theguardian.com/ world/2017/ jul/12/ bangladeshs- disappeared-rights-activist- found-on-bus -speaks-out]

Mazhar said he was unsure who had allegedly abducted him from a street near his home last week. “I made several phone calls to my wife while I was captive. Police could locate my position from my calls after the microbus left Dhaka, I found out later. I am surprised why police could not intercept the microbus well before it reached Khulna.” Mazhar said, “I am not afraid to reveal what happened to me,” he said. “People become mysteriously silent after they emerge alive from enforced disappearances. When I return to work I will begin working on this issue. We have to end this culture of enforced disappearances.” [Ibid]

Odhikar, a Dhaka-based human rights group, estimates about 223 people have been forcibly disappeared in Bangladesh in the past three years. About 18 have been released, but none have spoken on the record about their ordeal. The silence often extends to the families of the disappeared, including the 31 who have been found dead since July 2014. “Families are scared to talk about it because other members of the family may suffer the consequences,” said Adilur Rahman Khan, a Supreme Court advocate and the secretary of Odhikar. [Ibid]

According to the police, his movement was being constantly tracked; now it is a cogent argument as to why Mazhar could not be halted and rescued in any one of the six locations that he was tracked in. It is worth asking: why the victim could not be recovered when he was in the custody of the “abductors” or soon after he was set free. Media reports say, Mazhar, after being released from captivity, went to a restaurant where he had his meal and then boarded a Dhaka bound bus which was carrying only 3 (three) passengers aboard—-though it is common knowledge that it is most uneconomical to start a trip with only three passengers. It would have been wise if rescue operation could be launched when Mazhar was still in the captivity of his “abductors”—- and that could help obtain answers to various relevant questions.

Then remains the enigma of Mazhar “carrying a bag” and clothes, which his family members have cancelled out, and the CCTV clip too shows he did not carry it when he left the house. What is disquieting as well as alarming is: The home minister has expressed his relief that “Mazhar was not sent across the border”. How would the abductors benefit from that? Hopefully, the police detectives will leave no stone unturned to find answers to these vital questions.

Public health activist and founder of rural healthcare organisation Gonoshasthaya Kendra, Dr Zafrullah Chowdhury unambiguously stated that “Indian RAW was behind the abduction of Farhad Mazhar,” and added that the RAB played an active role and police acted fast to rescue Mazhar. Moreover, the BGB sealed the borders, said Dr Chowdhury who metioned his extraordinary calibre and admirable talent as a pharmacist I addition to being a poet, patriot and thinker. [Vide Tritiyo Matra 5083; 05 July 2017 www. Youtube .com/ watch?v =9DYZXg CsDDA ]

Incidentally, expressing deep concern over rising incidents of abduction and killing in the country at a roundtable at the Jatiya Press Club, Farhad Mazhar on April 18, 2014 said it was surprising that people of a foreign intelligence agency could pick up a man from our soil – an oblique reference to the capture of an operative of ‘Indian Mujaheedin’ in Dhaka by RAW and his being taken to India. [Vide ://archive .newage bd.net /3736/raw-behind- abu-bakar- abduction- says- farhad -mazhar/]

Meanwhile, twenty-one eminent citizens of the country expressed concern over what they said was a vested quarter trying to distract from the incident of abduction of poet and writer Farhad Mazhar through a smear campaign. “Everyone expected that administration and members of law enforcement agencies would identify and arrest the real abductors. But it is a matter of concern and frustration that a vested quarter is spreading hate speech and propaganda to divert attention from the crime of abduction,” they said in a press statement. It added “Such propaganda will create scope to divert attention from the Farhad Mazhar abduction case to another direction, which will provide a cover up for the criminals.”
http://www.weeklyholiday.net/Homepage/Pages/UserHome.aspx?ID=4&date=0#Tid=14371
 
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12:00 AM, July 21, 2017 / LAST MODIFIED: 12:13 AM, July 21, 2017
Enforced disappearance - The burden of proof
enforced_disappearance.jpg

Source: Gazettereview.com
Md. Saimum Reza Talukder

According to several past reports published by Human Rights Watch, Privacy International, and Swedish Media, there has been a rise in incidences of enforced disappearances and extra-judicial killings in Bangladesh in the last couple of years. Several reports by Ain o Salish Kendra seem to support this allegation. As a sovereign state how does Bangladesh perceive such allegations? According to the UN Charter, a State has responsibilities to "protect", "promote" and "implement" human rights norms and principles enshrined in international treaties, conventions and covenants. Therefore, it is important to revisit how Bangladeshi laws deal with cases of forced disappearances.

The whole criminal justice system of Bangladesh is mainly covered by the three archaic laws — the Code of Criminal Procedure (CrPC), the Penal Code, and the Evidence Act. Although "enforced disappearance" is considered a systematic, serious and grave crime, we still do not have any specific law regarding this. Regarding allegations of enforced disappearances, the only law to deal with evidence is the Evidence Act. But, according to this Act, whoever claims any special circumstance (e.g. enforced disappearance), s/he has to prove it. There is no provision that says the burden of proof lies on the State, or at least the State has a greater burden of proof; nor is there any law that deals with victim protection regarding enforced disappearances. In this sense, this is a major loophole of this Act. Thus it is important to shift the burden of proof on the State.

The "uncertainty" created in the absence of the body of the victim is one of the prime difficulties for any human rights court to determine the admissibility of evidence, burden of proof, and requisite of standard of proof, which are all important components of disappearance cases.

On the other hand, the term "enforced disappearance" is a heavily contested concept and state involvement in enforced disappearances worldwide causes more complex and multiple human rights violations. The adaptation of the International Convention for the Protection of All persons from Enforced Disappearance and the formation of special mechanisms under the United Nations, brought a certain "normative equivalence" within different international and regional legal systems. At least three important cross-jurisdictional human rights bodies, namely, Human Rights Committee (HRC), the Inter-American Court of Human Rights (IACHR) and the European Court of Human Rights (ECHR) deal with cases of enforced disappearances and are constantly creating and adopting human rights jurisprudence in a global scale. However, it is indisputable that under modern international human rights law, the notion of enforced disappearance is comparatively a new phenomenon.

Already there have been some developments in the IACHR, and ECHR in dealing with the issue of burden of proof. The two-step approach developed by IACHR in Velásquez Rodríguez v. Honduras case says that if someone claims that there is a case of disappearance, s/he should prove: 1. that there is a pattern and phenomenon of government practice of disappearances; and 2. the person who disappeared was subject to that particular pattern. In addition, the Court observed that government tolerance to the practice suffices to prove the governmental practices, therefore, there is no need to prove direct conduct. The Court's subsequent decisions also brought similar reasoning in Godínez Cruz v. Honduras; Caballero Delgado v. Colombia; and United States v. Santana cases. Moreover, the State's lack of cooperation or State control of evidence might have a negative effect on the burden of proof in certain circumstances.


Interestingly enough, the ECHR does not recognise the phenomenon or pattern or governmental practice of disappearances into their Court reasoning, rather their system adopts different approaches. For the first time, in the Akkim v Turkey case ECHR opined that “when a person is taken into custody before he disappeared and the State provides no reasonable explanation for his disappearances, he must be presumed dead”. A similar view was taken in the case of Tongcu v Turkey in addition with shifting the burden of proof on the government. According to the Court, “to shift the burden of proof onto the government in such circumstances requires, by implication that the applicant has already made out a prima facie case”. The flexibility approach by ECHR developed in finding prima facie death in disappearance cases led to the development of a number of guidelines in the Bazorkina v. Russia case, where an application by victim's family member(s) will constitute a prima facie case. Both IACHR, and ECHR adopted "flexible approach and free evolution" of admission of evidence and requisite standard of proof.

Hence, as Article 25 of our Constitution promotes international peace, security and solidarity, the above legal principles developed by HRC, IACHR, and ECHR are also related and important for legal reforms in Bangladesh. Because, in a true democracy, it is the State that bears the higher threshold of accountability towards the citizen, not the other way around. So if there is any allegation from people (including the media, civil society, minority or ethnic groups etc.), then the burden of proof should lie on the State. Therefore, it is crucial that the lawmakers of Bangladesh initiate the necessary legal reforms as soon as possible. Our courts should also come up with a judicial activism approach by considering the above mentioned precedents from IACHR and ECHR, if there is absence of proper legislation.

Md. Saimum Reza Talukder is an Advocate in Judge Court, Dhaka and currently studying Law & Digital Technologies at Leiden University

email: piash2003@gmail.com

http://www.thedailystar.net/opinion/human-rights/enforced-disappearance-the-burden-proof-1436233
 
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যে অনুষ্ঠানটির কারণে গুম হলেন ফরহাদ মজহার..হতে পারেন মাহমুদুর রহমান ও !!

Published on Jul 4, 2017
 
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