MARCH 2021 The 2016-2020 Ashulia Strike Cases: Garment Worker Union Leaders in the Bangladeshi Criminal Justice System
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
The 2016–2020 Ashulia Strike Cases: Garment Worker Union Leaders in the Bangladeshi Criminal Justice System MARCH 2021
The 2016–2020 Ashulia Strike Cases: Garment Worker Union Leaders in the Bangladeshi Criminal Justice System MARCH 2021 American Bar Association Center for Human Rights
ABOUT AMERICAN BAR ASSOCIATION
CENTER FOR HUMAN RIGHTS
The Center for Human Rights promotes and protects human rights worldwide by mobilizing lawyers
to help threatened advocates, protect vulnerable communities, and hold governments accountable
under law.
ACKNOWLEDGMENTS
This report was prepared by staff and consultants of the American Bar Association Center for Human
Rights and reflects their views. It has not been approved by the House of Delegates or the Board of
Governors of the American Bar Association and therefore should not be construed as representing
the policy of the American Bar Association as a whole. Further, nothing in this report should be
considered as legal advice in a specific case. The ABA Center for Human Rights would like to thank
Chris Han of Steptoe & Johnson, with oversight by William L. Drake and Eric Emerson of Steptoe, in
conducting interviews and drafting this report. Finally, it would like to thank Waris Husain, Marissa
Jaime Priceman, and Sonali Dhawan for managing the review of the report.
Front Cover: Female garment workers participate in Dhaka protest.
All photos are modified and credited accordingly via Adobe Creative Commons.
Copyright © 2020 by the American Bar Association. All rights reserved.
1050 Connecticut Ave. N.W., Suite 450, Washington, D.C. 20036
ivTABLE OF CONTENTS
I. EXECUTIVE SUMMARY......................................................................................................................1
II. INTRODUCTION..................................................................................................................................4
A. SCOPE AND LIMITATIONS OF THE REPORT...................................................................................9
III. A BASIC OVERVIEW OF BANGLADESHI CRIMINAL PROCEDURE AND
BANGLADESH’S OBLIGATIONS UNDER INTERNATIONAL LAW........................................10
A. POLICE INVESTIGATION: FIRST INFORMATION REPORT, FINAL REPORT,
AND CHARGE SHEET....................................................................................................................10
B. ARREST.........................................................................................................................................11
C. RIGHT TO A LAWYER.....................................................................................................................14
D. INITIAL CUSTODY HEARING.........................................................................................................15
E. REMAND......................................................................................................................................17
1. CONSIDERING REQUESTS FOR REMAND AND BAIL..........................................................18
2. POLICE INTERROGATION: THE RIGHT TO BE SILENT AND
THE PROHIBITION ON TORTURE............................................................................................19
F. FINAL REPORT OR CHARGE SHEET..............................................................................................20
G. DISCHARGE.................................................................................................................................21
H. RIGHT TO A SPEEDY TRIAL............................................................................................................21
IV. BANGLADESHI CRIMINAL PROCEDURE AS APPLIED TO UNION ORGANIZERS.........23
A. FIRST INFORMATION REPORTS.....................................................................................................23
B. ARREST.........................................................................................................................................26
C. POLICE CUSTODY PRIOR TO COURT APPEARANCE...................................................................27
D. DEATH THREATS AND THREATS OF TORTURE WHILE IN POLICE CUSTODY................................28
E. INITIAL CUSTODY HEARING AND ACCESS TO LEGAL REPRESENTATION..................................30
F. REMAND......................................................................................................................................31
1. CONSIDERING REQUESTS FOR REMAND............................................................................32
2. POLICE INTERROGATION.....................................................................................................34
G. DETENTION...................................................................................................................................35
H. BAIL APPEALS...............................................................................................................................36
I. FINAL REPORTS AND CHARGE SHEET..........................................................................................37
J. RIGHT TO A SPEEDY TRIAL............................................................................................................38
V. CONCLUSIONS AND RECOMMENDATIONS..........................................................................39
vI. EXECUTIVE
SUMMARY1
Bangladesh’s garment industry is the second- Although a provision of the Special Powers Act
largest in the world, comprising approximately 84% barring the commission of “prejudicial acts” had
of Bangladesh’s export revenue and establishing been repealed by the government of Bangladesh
the backbone of its economy.2 Yet, garment in the 1990s, many of those arrested were
workers represent a particularly vulnerable charged under this provision.9 The union leaders,
population in Bangladesh. Approximately four organizers and garment workers were detained
out of five garment workers are women, 3 often and harassed by police, allegedly to discourage
working in “unsafe, unhealthy, and unsanitary” them and others from exercising their right to
environments without job security.4 freedom of association.10
On December 11, 2016, workers in about 20 Beginning in December 2018, thousands of garment
garment factories in Ashulia, the majority of workers from global brand factories in the Ashulia
which were non-union factories, went on strike industrial area retook to the streets in protest
and protested for several days.5 The minimum and went on strike following the implementation
wage for garment workers in Bangladesh was of a monthly minimum wage of 8,000 taka
then a mere $67 per month. Workers were (approximately $96 USD), approximately half of
demanding $200 per month in order to cover what trade union leaders had demanded during
their basic necessities.6 In response to the strike, prior negotiations with the government.11 Labor
over 1,500 workers were either suspended, rights groups reported that the wage revision
dismissed or forced to resign following the strike.7 fell short of any credible calculation of a living
Police also allegedly arrested at least 34 union wage.12 Following a January 2019 demonstration,
leaders and organizers, many of whom were factory bosses reportedly fired at least 5,000
not even in Ashulia during the demonstrations.8 low-paid garment workers for global brands,13
1 This report was prepared by staff and consultants of the American Bar Association Center for Human Rights and
reflects their views. It has not been approved by the House of Delegates or the Board of Governors of the American Bar
Association and therefore should not be construed as representing the policy of the American Bar Association as a whole.
Further, nothing in this report should be considered as legal advice in a specific case. The ABA Center for Human Rights
would like to thank Chris Han of Steptoe & Johnson, with oversight by William L. Drake and Eric Emerson of Steptoe, in
conducting interviews and drafting this report. Finally, it would like to thank Waris Husain, Marissa Jaime Priceman, and
Sonali Dhawan for managing the review of the report.
2 2019 in review: Bangladesh textile and apparel industry, Textile Today (Jan. 5, 2020), https://www.textiletoday.com.
bd/2019-garment-sector-experiences-peaceful-environment-export-slows/.
3 Filippo Sebastio, Female empowerment in the Bangladesh garment industry, International Growth Centre (Nov. 14,
2014), https://www.theigc.org/blog/female-empowerment-in-the-bangladeshi-garment-industry/.
4 Shuvro Sen, Neel Antara, Shusmita Sen, & Sunny Chowdhury, The apparel workers are in the highest vulnerability due to
COVID-19: a study on the Bangladesh Apparel Industry, Asia Pac. J. Of Multidisciplinary Rsch., Aug. 2020, at 1, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3669298.
5 Bangladesh: Stop Persecuting Unions, Garment Workers, Human Rights Watch (Feb. 15, 2017), https://www.hrw.org/
news/2017/02/15/bangladesh-stop-persecuting-unions-garment-workers.
6 Id.
7 Id; Michael Safi, Bangladesh garment factories sack hundreds after pay protests, The Guardian (Dec. 27, 2016), https://www.
theguardian.com/world/2016/dec/27/bangladesh-garment-factories-sack-hundreds-after-pay-protests.
8 Id.
9 Id.
10 Supra note 5.
11 Bangladesh police and garment workers clash over wage rise, Al Jazeera (Jan. 13 2019),
https://www.aljazeera.com/news/2019/1/13/bangladesh-police-and-garment-workers-clash-over-wage-rise.
12 Bangladesh Crackdown, Clean Clothes Campaign , https://cleanclothes.org/campaigns/crackdown-bangladesh (last
visited Mar. 1, 2021).
13 Almost 5,000 Bangladeshi garment workers sacked over strikes, Al Jazeera (Jan. 29, 2019), https://www.aljazeera.com/
news/2019/1/29/almost-5000-bangladeshi-garment-workers-sacked-over-strikes.
1and authorities allegedly used the strikes as the loans from the International Monetary Fund, most
basis to arrest national union federation leaders of Bangladesh’s garment factories have now re-
and labor activists, and charged them for crimes opened.21 However, garment workers that have
like vandalism.14 returned to work risk exposure to the coronavirus
and continue to face the threat of layoffs and
The COVID-19 crisis has exacerbated the wage cuts.22
vulnerability of Bangladeshi garment workers,
leaving them in an even more precarious situation: In response to the increased vulnerability
45.8% of suppliers reported that “a lot” to “most” of Bangladeshi garment workers and the
of their nearly completed or entirely completed criminalization of union leaders, the American
orders had been cancelled by their buyers.15 Despite Bar Association Center for Human Rights (Center)
the contractual obligations of buyers to pay for undertook an analysis of how the Bangladeshi
these orders, U.S. and European fashion companies criminal justice system has processed the criminal
have refused to pay overseas suppliers for at least cases of seven full-time union or federation
$16 billion worth of goods since the outbreak organizers and one garment factory worker
of COVID-19.16 As a result, at least one million allegedly involved in the Ashulia protests. The
garment workers in Bangladesh have been fired or report focuses on the 2016 Ashulia strike cases
furloughed, and 72.4% of furloughed workers were since they have direct relevance for current events.
sent home without pay.17 A report by the Center The government and factory owners continue to
for Global Workers’ Rights found that 98.1% of crack down on garment worker protests.23 Union
buyers refused to contribute to the cost of paying leaders play an essential role in collectively
partial wages to furloughed workers as required advocating for the rights of workers, including fair
by Bangladesh’s labor law, and 97.3% of buyers wages, safe working conditions, protection from
refused to contribute to severance pay expenses of harassment, and more. The collective advocacy
dismissed workers.18 In December 2020, hundreds and assertion of union leaders’ fundamental rights
of garment workers were reported to be sleeping to association and assembly are more important
under makeshift shelters and in sleeping bags on than ever to protect workers from further abuse
the streets of Dhaka.19 Police have allegedly used and maltreatment amid the COVID-19 crisis.
excessive force through the use of water cannons
and batons against peaceful protesters calling The report’s Introduction (Part II) details the
for their unpaid wages.20 Following a government 2016 Ashulia strike events, the government of
stimulus package and disbursement of emergency Bangladesh’s crackdown against garment workers
14 Bangladesh: Investigate Dismissals of Protesting Workers, HUMAN RIGHTS WATCH (Mar. 5, 2019), https://www.hrw.org/
news/2019/03/05/bangladesh-investigate-dismissals-protesting-workers.
15 Mark Anner, Center For Global Workers’ Rights, Abandoned?: The Impact of Covid-19 on Workers and Businesses at
the Bottom of Global Garment Supply Chains 1 (2020), http://www.workersrights.org/wp-content/uploads/2020/03/
Abandoned-Penn-State-WRC-Report-March-27-2020.pdf.
16 Mei-Ling McNamara, World garment workers face ruin as fashion brands refuse to pay $16bn, The Guardian (Oct. 8, 2020),
https://www.theguardian.com/global-development/2020/oct/08/worlds-garment-workers-face-ruin-as-fashion-brands-
refuse-to-pay-16bn.
17 Supra note 15 at 2.
18 Id.
19 Redwan Ahmed, I thought about killing my children: the desperate Bangladesh garment workers fighting for pay, The Guardian
(Dec. 10, 2020), https://www.theguardian.com/global-development/2020/dec/10/i-thought-about-killing-my-children-the-
desperate-bangladesh-garment-workers-fighting-for-pay.
20 Id.
21 See Tk 5,000cr for Workers’ Pay, The Daily Star (Mar. 26, 2020), https://www.thedailystar.net/frontpage/news/tk-5000cr-
workers-pay-1885891; Helping Bangladesh Recover from COVID-19, International Monetary Fund (IMF) (June 12, 2020),
https://www.imf.org/en/News/Articles/2020/06/11/na-06122020-helping-bangladesh-recover-from-covid-19
22 Taslima Akhter, Bangladesh’s Garment Workers Are Being Treated as Disposable, The Nation (June 22, 2020), https://www.
thenation.com/article/world/bangladesh-garment-workers-covid-19/.
23 See Minority Staff of S. Comm. on Foreign Relations, 116th Cong., Seven Years After Rana Plaza, Significant Challenges
Remain 15-16 (Comm. Print 2020), https://www.foreign.senate.gov/imo/media/doc/Final%20Bangladesh%20%20
Report--3.2.2020.pdf [hereinafter Seven Years After Rana Plaza, Significant Challenges Remain] (“The inadequate wage
increase sparked months-long protests and a government and factory owner-led crackdown on Bangladeshi workers in
retaliation to the protests.”).and union leaders allegedly involved in the alleged that, while detained, they were subject to
protests, and the international response to the death threats and threats of torture. As a result,
crackdown. Part III of the report provides a general the Center finds that the defendants’ legal rights,
overview of the Bangladeshi criminal procedure including the right to fair trial, appear to have
and Bangladesh’s obligations under international been substantially violated under both Bangladeshi
law. Part IV of the report focuses on Bangladeshi and international law.
criminal procedure and international human rights
law standards as applied to the cases of the seven Based on evidence-based research, the report
aforementioned defendants. All seven defendants concludes with Part V which lays out the
reported that they were not provided with a following recommendations for the government of
warrant at the time of their arrest, and a number Bangladesh:
of the defendants reported lack of access to legal
counsel. Additionally, several of the defendants
Recommendations
1. Ensure that law enforcement comply with the orders of the Supreme Court issued in the 2003
and 2017 Bangladeshi Legal Aid and Services Trust v. Bangladesh decisions concerning the
arrest and detention of individuals accused of criminal activity;
2. Require courts to inform the accused of their right to apply for legal counsel;
3. Ensure that police do not abuse loopholes to extend detention authorized under Bangladeshi
law by magistrates beyond the maximum of 15 days;
4. Strengthen existing avenues for investigating officers, magistrates, and prosecutors to
withdraw a suspect from a case or dismiss a case in the absence of clear evidence of criminal
conduct, and suspend the prosecution of other cases involving the 2016 Ashulia strike
individuals discussed in this report;
5. Create an independent task force dedicated to investigating allegations of misuse of the
criminal justice system, torture, and death by law enforcement to align with international
recommendations and legal standards, and hold magistrate and prosecutors accountable under
criminal and disciplinary procedures for the misuse of justice system;
6. Abide by and address the concluding observations and guidance advanced by several
international monitoring bodies—namely, the U.N. Human Rights Committee, the U.N.
Committee Against Torture, and the International Labour Organisation (ILO) Committee on
Freedom of Association—, and allow the U.N. Special Rapporteurs to conduct country visits and
subsequently implement recommendations made by the Special Rapporteurs.
3II. INTRODUCTION
In Bangladesh, the government sets a sectoral a largely peaceful protest by thousands of
minimum wage for the garment industry.24 garment workers calling for higher wages.
However, many have noted that the Bangladeshi At least 1,500 workers were dismissed, 38
government’s marginal increases to garment union leaders were arrested on baseless
workers’ minimum wage have not met the criminal charges, and trade union offices
cost of living.25 The insufficient wages have were closed or came under intense
consequently provoked waves of strikes by pressure from government authorities.
garment workers.26 Only after Western brands sourcing from
Bangladesh boycotted a high-profile annual
In December 2016, the minimum wage for summit organized by the BGMEA did the
garment workers was $67 per month.27 On Bangladeshi government start releasing
December 11, 2016, workers “from an estimated detained workers.30
20 factories that supply global brands based in
the Ashulia industrial area,” which were allegedly Immediately after, “the Bangladesh Garment
mostly non-union factories, went on strike.28 The Manufacturers Export Association (BGMEA) and
workers demanded $200 per month to account the government rejected a wage review” and
for the cost of basic necessities.29 The factories BGMEA “closed about 60 Ashulia factories for
and authorities retaliated. As described by the several days, effectively locking out thousands
Minority Staff of the U.S. Senate Committee on of workers and ending the strikes.”31 In the
Foreign Relations: weeks after the strike, “workers, local labor
rights groups, and newspaper reports” alleged
In December 2016, the government of “some Ashulia factories…also retaliated against
Bangladesh and factory owners initiated a an estimated 1,500 workers by indiscriminately
severe crackdown on labor rights following firing or suspending them.”32
24 Emdahul Huq, M. Harunur Rashid, & Dagmara Skupien, Bangladesh, in IEL Labour Law 1, 47 (Frank Hendrickx ed., 2005)
[hereinafter Huq IEL] (citing The Minimum Wages Ordinance, 1961 (Ordinance No. XXXIV of 1962) (Bangl.)).
25 See, e.g., Agence France-Presse, Bangladesh strikes: thousands of garment workers clash with police over poor pay, The
Guardian (Jan. 13, 2019), https://www.theguardian.com/world/2019/jan/14/bangladesh-strikes-thousands-of-garment-
workers-clash-with-police-over-poor-pay (“Minimum wages for the lowest-paid garment workers rose by a little over
50% this month to 8,000 taka ($95) a month. But mid-level tailors said their rise was paltry and failed to reflect the rising
costs of living, especially in housing.”); Bangladesh: Widespread garment worker protests over minimum wage increase;
leads to mass dismissals, Business & Human Rights Resource Centre (Sep. 27, 2018), https://www.business-humanrights.
org/en/latest-news/bangladesh-widespread-garment-worker-protests-over-minimum-wage-increase-leads-to-mass-
dismissals/ (“In September 2018, the Bangladesh government moved to raise the monthly minimum wage for garment
workers - for the first time in five years - to Tk 8,000 (USD 96), up from the previous Tk 5,300 (USD 63). Many garment
workers are dissatisfied with the increase, as workers rights organisations and trade unions had been calling for at least
Tk 16,000. Others were unhappy about a discrepancy in the increase between junior and senior workers. While workers
claim the increase is not enough to cover increased living costs, factory owners say they cannot afford to pay increased
wages.”)
26 Id.
27 Supra note 5.
28 Id.
29 Id.
30 Seven Years After Rana Plaza, Significant Challenges Remain, 15. Human Rights Watch conducted a preliminary
investigation into these criminal charges and reported: [While] allegations specifically detailed property damage, such
as destruction of factory doors, windows, and machinery, there is no corroborating information. None of the workers
Human Rights Watch was able to interview in a few of these factories and who had resumed work inside these factories
said they had seen any freshly replaced machinery or fixtures, or recently damaged machinery or fixtures awaiting
repairs. Local residents said they did not witness any looting or violence. Supra note 5.
31 Id.
32 Id. Accord Safi, supra note 7 (“At least 1,500 workers have been sacked from Bangladesh garment factories after protests
forced a week-long shutdown at dozens of sites supplying top European and American brands.”).
4Human Rights Watch interviewed some of the detailed in this report, Bangladeshi authorities
suspended and terminated workers and reported: violated the due process and fair trial rights of
arrested union leaders.38
Some workers told Human Rights Watch that
their factory managers promised to send The government authorities’ alleged repression
them a show-cause notice back in their homes continued into early 2017. On January 20, 2017,
in the village but had received no further police officers allegedly interrupted “an ILO-
information. Other workers said that factory sponsored health and safety training program”
officials or supervisors told them on the phone organized by the Bangladesh Independent
that they should not come to the factory Garment Union Federation (BIGUF).39 Police
because they would be arrested, without allegedly “gathered all BIGUF staff and program
offering any further explanation. A third participants in the seminar room, noted down their
group said that factory officials gave them a personal details, and warned that they should not
show-cause notice, in standard format, with participate in BIGUF’s activities.”40 Allegedly:
seven days to respond to allegations that
they participated in or instigated violent The sub-inspector demanded that the
strikes. Human Rights Watch has seen some training be cancelled, arguing that it
of these notices. None was tailored to an required prior police permit (which is false,
individual worker, specifying clearly how according to the complainants), threatened
they were implicated in the strikes, but that any workers who continued to associate
included broad, vague allegations addressed with the BIGUF would be in trouble and that
to a group of workers.33 if he caught the union’s Vice-President, he
would kill him by drowning.41
The authorities also retaliated against the
workers. Police arrested 34 people, “most of them In February 2017, a complaint was filed on behalf of
union leaders,” for crimes related to the 2016 the arrested union leaders with the International
strike and older cases;34 and police registered Labour Organization’s Committee on Freedom of
“open-ended [criminal] complaints against over Association. The complaint alleged specific and
1,600 ‘unknown’ people for committing crimes serious allegations of police misconduct, including
during the Ashulia strike,” which police “abused allegations of arbitrary arrest and detention, false
to implicate union leaders.”35 As this ABA Center criminal charges, death threats, physical abuse,
for Human Rights report explains, the authorities surveillance, and intimidation.42
charged many labor activists with committing The Bangladeshi government formally responded
“prejudicial acts” under the Special Powers Act, to the complaint on October 1, 2018. According
even though the Bangladeshi government repealed to the government, no complaints alleging
and decriminalized “prejudicial acts” years ago.36 such acts had been filed against the police and,
Police allegedly beat one detained union leader if a complaint were filed, the police would
and allegedly threatened to shoot another.37 As investigate.43 Furthermore:
33 Supra note 5.
34 Id.
35 Id.
36 See infra notes 208 – 216 and accompanying text.
37 Infra notes 259 – 262 and accompanying text.
38 Infra A Basic Overview of Bangladeshi Criminal Procedure and Bangladesh’s Obligations Under International Law; Bangladeshi
Criminal Procedure as Applied to Union Organizers.
39 Supra note 5.
40 Id.
41 Case No. 3263, Interim Rep. No. 384, ¶ 153 (Int’l Labor Org. [ILO], Comm. on Freedom of Association Mar. 2018), https://www.
ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:50002:0::NO::P50002_COMPLAINT_TEXT_ID:3949817 [hereinafter ILO Case No.
3263, Interim Rep. No. 384].
42 Id. at ¶¶ 149–56.
43 Case No. 3263, Interim Rep. No. 388, ¶ 162 (ILO Comm. on Freedom of Association Mar. 2019), https://www.ilo.org/dyn/
normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:3996604 [hereinafter ILO Case No. 3263, Interim Rep.
No. 388].
5[T]he Government indicate[d] that the cases wage. Hundreds of workers took to the
have all been concluded after investigation streets. At least 50 factories were closed as
and no worker was charged in any of them. a result of worker unrest during December,
It further state[d] that no unionist or worker only reopening after three days…52
was imprisoned after the strike and those
who were in custody were released on bail Government authorities allegedly responded by
immediately after the law and order situation retaliating with threats to union leaders “in public
in the area went back to normal.44 and private settings that they would be arrested or
disappeared if the protests continued ahead of the
However, it is demonstrably false that all cases December 30 general elections.”53 Nonetheless,
were concluded and that no worker was charged.45 the wildcat protests resumed in January 2019.54
As this report discusses, police reports have been An estimated 50,000 workers participated in
filed against multiple individuals and multiple the December 2018 and January 2019 “wildcat
trials have already commenced.46 The Bangladeshi strikes.”55
authorities and factories used similar measures to
retaliate against workers in late 2018 and early When the non-violent protests resumed in January
2019. In 2018, workers and trade unions demanded 2019, Bangladeshi police responded with “water
the Bangladeshi government raise the minimum cannons, tear gas, and rubber bullets,” killing
wage to account for cost of living.47 However, the one worker and injuring fifty others.56 Police
Bangladeshi government only raised the minimum also allegedly “launched a reign of terror in the
wage by half the requested amount,48 which the neighborhoods and buildings occupied largely
Worker Rights Consortium claimed, “represents by garment workers in Savar and Ashulia,” by
less than a quarter of what many experts believe threatening residents and shooting “rubber bullets
to be a living wage in most areas in Bangladesh.”49 indiscriminately into residences.”57 As of March
Moreover, the “new wage structure”50 created 2019, police arrested over 50 workers and denied
“a discrepancy in the [wage] increase between bail to 11 of them; and filed “[a]t least 29 criminal
junior and senior workers.”51 The Worker Rights cases” against 551 named individuals and “over
Consortium explained, 3,000 unidentified people, leaving workers at risk
of being arbitrarily accused in one of these cases at
In the three weeks following the November a later date.”58 According to Human Rights Watch:
25 announcement of the new wage structure,
workers in dozens of factories throughout The use of criminal complaints against large
the industrial areas of Mirpur, Savar, numbers of “unknown” people is a common
Narayanganj, Ashulia, and Gazipur held abusive practice in Bangladesh, allowing the
demonstrations protesting the new minimum police to intimidate and threaten virtually
anyone with arrest, repeatedly re-arrest
44 Id. at ¶ 191.
45 See infra Bangladeshi Criminal Procedure as Applied to Union Organizers..
46 Seeid.
47 Bangladesh: Brands respond to mass dismissals of garment workers following minimum wage protests, Business & Human
Rights Resource Centre (Apr. 8, 2019), https://www.business-humanrights.org/en/latest-news/bangladesh-brands-respond-
to-mass-dismissals-of-garment-workers-following-minimum-wage-protests/.
48 Id.
49 Workers Rights Consortium, Banning Hope: Bangladesh Garment Workers Seeking a Dollar an Hour Face Mass Firings,
Violence, and False Arrests 7 (2019), https://www.workersrights.org/wp-content/uploads/2019/04/Crackdown-on-
Bangladesh.pdf.
50 Id.
51 Business & Human Rights Resource Centre, supra note 27.
52 Workers Rights Consortium, supra note 49 at 8 (citations omitted).
53 Bangladesh: Investigate Dismissals of Protesting Workers, Human Rights Watch (Mar. 5, 2019), https://www.hrw.org/
news/2019/03/05/bangladesh-investigate-dismissals-protesting-workers
54 Id.
55 Id.
56 Id. Accord Workers Rights Consortium, supra note 49 at 10-11 (discussing the killed worker, Sumon Mia).
57 Workers Rights Consortium, supra note 49 at 14.
58 Supra note 53.
6detainees even though they are not the alleging “criminal cases in relation to the 2016
named accused in the cases, and thwart Ashulia strike remain pending and denouncing
bail. Union leaders told Human Rights mass retaliation, criminalization, continued
Watch that many workers were in hiding surveillance and intimidation of workers for trade
out of fear of arbitrary arrest under these union activities, with 19 criminal cases against
unnamed cases. Human Rights Watch has more than 520 workers currently pending in
documented previous use of this technique. relation to the 2018–19 minimum wage protests.”64
That union leaders and workers are in hiding The government of Bangladesh confirmed in its
demonstrates the chilling effect such a September 2020 reply that:
practice has on freedom of association and
other basic rights.59 [E]ight out of ten cases have been dismissed
for lack of evidence and only two remain
Factories also retaliated against workers. Two pending before the courts. The case involving
months after the January 2019 strikes, union five labour leaders is to be heard in court
leaders “reported at least 7,500 garment on 4 October 2020 and the case against 15
workers were dismissed from their jobs,” and labour leaders is to be heard on 13 October
“estimate[d] that over 1,700 of the suspended 2020.65
workers are currently blacklisted from working
at other factories.”60 After crackdowns in both On the allegations of arbitrary arrest and
2016 and 2019, international trade unions and detention in the aftermath of the 2016 Ashulia
NGOs campaigned for brands to re-hire fired strike, the government of Bangladesh replied that
workers, and for the Bangladeshi government law enforcement personnel are “trained in crowd
to drop charges against arrested union leaders control measures and refrain[] from committing
and activists.61 These efforts were somewhat any excesses or aberrations unless for self-defence
successful.62 However, Bangladeshi authorities or for protection of civilian lives and property
still discouraged union activists and others from and that any alleged excess is duly investigated
exercising their right to freedom of association through established legal and administrative
through detention, harassment, blacklisting and procedures by the police or the Ministry of Home
other measures.63 Affairs, resulting in systematic follow-up.”66
In February 2020, the International Trade Union The ILO Committee on Freedom of Association
Confederation submitted a communication to voiced serious concerns regarding the effects of
the ILO Committee on Freedom of Association, the alleged government crackdown,67 and stated,
59 Id.
60 Id.
61 See id.; supra note 5; A year after crackdown on wage protests in Bangladesh, hundreds of workers still face retaliatory charges,
Clean Clothes Campaign (Jan. 14, 2020), https://cleanclothes.org/news/2020/a-year-after-crackdown-on-wage-protests-
in-bangladesh-hundreds-of-workers-still-face-retaliatory-charges; Crackdown on garment workers in Bangladesh must stop,
IndustriALL Global Union (Jan. 5, 2017), http://www.industriall-union.org/crackdown-on-garment-workers-in-bangladesh-
must-stop; Workers Rights Consortium, supra note 49 at 10.
62 In early 2017, some workers were eventually offered reinstatement, though most were offered compensation. See Workers
Rights Consortium, supra note 49 at 4, 27. Likewise, in 2019, some criminal charges related to the 2017-2018 protests were
dropped. See Bangladesh: Brands respond to mass dismissals of garment workers following minimum wage protests, Business
& Human Rights Resource Centre (Apr. 8, 2019), https://www.business-humanrights.org/en/latest-news/bangladesh-brands-
respond-to-mass-dismissals-of-garment-workers-following-minimum-wage-protests/.
63 See, e.g., supra note 53 (“That union leaders and workers are in hiding demonstrates the chilling effect such a practice has
on freedom of association and other basic rights.”); supra note 5 (“The police accused some labor leaders of ‘sabotage’ – an
offense so vaguely defined that it can be abused to criminalize any exercise of workers’ freedom of association.”); Workers
Rights Consortium, supra note 49 at 6 (“Freedom of expression and association have become increasingly stifled by
Bangladesh’s Government in recent years.”).
64 Case No. 3263, Interim Rep. No. 392, ¶ 271 (ILO Comm. on Freedom of Association Oct. 2020), https://www.ilo.org/dyn/
normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:4059196 [hereinafter ILO Case No. 3263, Interim Rep.
No. 392].
65 Id. at ¶ 272.
66 Id. at ¶ 273.
67 Id. at ¶¶ 278-286.
7280. …Considering that the arrest of to the ILO’s 2019 International Labour Conference
trade unionists and leaders of employers’ to file a complaint for the establishment of
organizations may create an atmosphere a Commission of Inquiry—the ILO mechanism
of intimidation and fear prejudicial to the reserved for the most serious of cases.70
normal development of trade union activities
[see Compilation, para. 126], the Committee The Committee on Economic, Social and
encourages the Government to take Cultural Rights (CESCR) similarly noted the
concrete measures to strengthen training continued harassment of trade unionists in its
on this specific aspect of civil liberties and discussion of the government of Bangladesh’s
to increase accountability for any violations initial report. The CESCR expressed concerns
in this regard, with a view to ensuring that about “the continuing discrimination,
trade unionists are not arbitrarily arrested harassment and intimidation of trade
and detained.68 unionists for their activities, including the
arrest of 30 union leaders under the Special
The detailed reports of the International Labour Powers Act, 1974, and the dismissal of over
Organization’s supervisory system over many years 1,500 garment workers during their protests
show that the government of Bangladesh has in Ashulia in December 2016.”71
violated the rights to freedom of association, to
organize, and to bargain collectively.69 Indeed, the
failure of the government to take meaningful steps
to address these violations led several delegates
68 Id. at ¶ 280.
69 The Committee of Experts has issued observations voicing concerns of law and practice relating to Bangladesh’s compliance
with Convention 87, which protects the right to freedom of association and the right to organize, and Convention 98,
which protects the right to organize and the right to collective bargaining. See ILO Comm. of Experts on the Application of
Conventions and Recommendations (CEACR), 2017 Report III (Part 1A) 49-54 (2017), https://www.ilo.org/wcmsp5/groups/
public/---ed_norm/---relconf/documents/meetingdocument/wcms_543646.pdf; ILO Comm. of Experts on the Application
of Conventions and Recommendations (CEACR), 2018 Report III (Part 1A) 45-55 (2018), https://ilo.primo.exlibrisgroup.
com/discovery/delivery/41ILO_INST:41ILO_V2/1251899630002676?lang=en; ILO Comm. of Experts on the Application of
Conventions and Recommendations (CEACR), 2020 Report III (Part 1A) 56-66 (2020), https://ilo.primo.exlibrisgroup.com/
discovery/delivery/41ILO_INST:41ILO_V2/1266929950002676?lang=en. The Committee on Freedom of Association (CFA)
has received several complaints, concerning widespread violations of freedom of association and arbitrary arrests and
detentions in the context of minimum wage demonstrations. See ILO Case No. 3263, Interim Rep. No. 392; Case No. 3203,
Interim Rep. No. 392 (ILO Comm. on Freedom of Association Oct. 2020), https://www.ilo.org/dyn/normlex/en/f?p=1000:50
002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:4059172. The Conference Committee on the Application of Standards (CAS)
reviewed Bangladesh’s failure to comply with Convention 87 in 2013, 2015, 2016 and 2017. ILO Conf. Comm. on Application
of Standards (CAS), Extracts from the Record of Proceedings (ILC 2013) Part II/23 – Part II/30 (2013), https://www.ilo.org/
wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_229263.pdf; CAS, Extracts from the Record
of Proceedings (ILC 2015) Part II/42 – Part II/48 (2015), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/
documents/publication/wcms_412826.pdf; CAS, Extracts from the Record of Proceedings: Geneva 2016, Part II/19 – Part
II/28 (2016), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_526940.
pdf [hereinafter CAS 2016 Report]; CAS, Extracts from the Record of Proceedings (ILC 2017) Part II/50 – Part II/62 (2017),
https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_576287.pdf. In 2016, the
CAS included its conclusions in a “special paragraph,” which CAS used to indicate serious concerns regarding non-compliance
with the convention. CAS 2016 Report, Part II/27 – Part II/28. CAS authorized a high level tripartite mission in 2015 due to
ensure the Bangladeshi government’s compliance with recommendations “relating to freedom of association and collective
bargaining;” the government’s response to “acts of anti-union discrimination;” and expeditious responses to “applications for
union registration” not to be “denied unless they fail to meet clear and objective criteria set forth in the law.” CAS, High–Level
Tripartite Mission to Bangladesh, Report of the High–Level Tripartite Mission to Bangladesh (Dhaka, 17–20 April 2016), ¶ 1 (June
7, 2016), http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_488339.pdf.
The tripartite mission, which visited Bangladesh in April 2016, criticized the Bangladeshi government’s actions. See generally
Id.
70 See Int’l Labor Conference, Complaint concerning non-observance by Bangladesh of ratified Conventions, submitted by
delegates to the 108th Session (2019) of the International Labour Conference under article 26 of the ILO Constitution, at
Part 5C, 20-21 (2019), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/
wcms_726221.pdf.
71 Comm. on Economic, Social and Cultural Rights, Concluding observations on the initial report of Bangladesh, adopted Mar.
29, 2018, U.N. Doc. E/C.12/BGD/CO/1, ¶ 40 [hereinafter CESCR 2018 Concluding Observations on Bangladesh].
8This report takes up the next chapter in the Major limitations of this report include:
garment worker union saga. It examines how the
Bangladeshi criminal justice system has processed • The research team’s inability to use legal
the cases of seven full-time union or federation resources written in Bangla, and the team’s
organizers and one garment factory worker consequent reliance on practitioners of
(“Respondents”) allegedly involved in the Ashulia Bangladeshi law to provide an overview of
protests. This analysis has direct relevance for Bangladeshi law and review the research
current events. The government has since levelled team’s understanding of Bangladeshi law.
new criminal charges against factory workers. • The research team’s inability to interview
The government and factory owners have cracked police or prosecutors. Organizations on the
down on garment worker protests that began in ground strongly advised against interviewing
2018, continued into 2019 and continue to do so police or prosecutors for safety reasons.
as of the writing of this report.72 • The research team’s limited access to court
documents. Organizations on the ground
A. Scope and Limitations of the Report indicated that there were safety issues
The research team has examined the Bangladeshi associated with gathering documents from
criminal justice system in operation as applied courts and particularly from the police.
to the Respondents, including prominent leaders Therefore, partners on the ground gathered
within the Bangladeshi garment worker union the documents available to them, while
community. Specifically, the research team the research team gathered additional
examined whether the criminal procedures that documents from Respondents.
were applied to Respondents complied with • Because of the international scrutiny and
Bangladeshi law. Respondents were formally media attention in these cases, the cases
identified as suspects in the Ashulia protest cases were likely close to a best-case scenario for
in 2016 or 2017, but their cases were ongoing as the defendants once international scrutiny
of 2020. began. That is, the bail appeals and final
reports recommending against formal
The research team’s primary sources of information charges are probably not representative of
were: typical Bangladeshi criminal cases.
• In-person interviews with Respondents, For safety reasons, Respondents’ names and case
who have each been formally charged. The numbers have been redacted to mitigate the risk
number of people who could be interviewed of further retaliation against Respondents.
was limited due to safety concerns and
budgetary issues. Respondents refused to This report begins with a general overview of
participate in interviews via videoconference criminal procedure in Bangladesh, continues
due to fear that the Bangladeshi government with an examination of how the authorities have
would intercept calls. applied these procedures to Respondents, and
• An interview with an attorney belonging to concludes with recommendations.
a legal organization that represents some
of the individuals accused in the Ashulia
protest cases.
• Court documents from Respondents’ cases
and other Ashulia protest cases.
72 See Seven Years After Rana Plaza, Significant Challenges Remain, 15–16 (“The inadequate wage increase sparked months-
long protests and a government and factory owner-led crackdown on Bangladeshi workers in retaliation to the protests.”).
9III. A BASIC OVERVIEW
OF BANGLADESHI CRIMINAL PROCEDURE
AND BANGLADESH’S OBLIGATIONS UNDER
INTERNATIONAL LAW
Due process and fair trial rights are enshrined Police file three key documents during the
in domestic Bangladeshi law, as well as the inquiry stage of a case:
International Covenant on Civil and Political
Rights (ICCPR) and U.N. Convention against • First information report (“FIR”) – A report
Torture and Other Cruel, Inhuman or Degrading of a cognizable offense, which is an
Treatment or Punishment (CAT), both of which offense that does not require police to
Bangladesh is party to.73 have an arrest warrant for an accused
person.76 If a case is deemed “cognizable,”
Under Bangladesh’s criminal justice system and it “starts based on credible information
the ICCPR, individuals are innocent until proven received either from a private person or
guilty.74 In Bangladesh, a criminal case consists from any intelligence source or agency.”77
of two main stages: (1) investigation and inquiry, An FIR initiates criminal proceedings by
during which the police investigates and collects gathering information about an alleged
evidence, and the court inquires into the truth event to identify the accused and bring
or falsity of the allegations; and (2) the trial.75 them before a tribunal.78
• Final report – A document describing
A. Police Investigation: First Information
the outcome of the police investigation
Report, Final Report, and Charge Sheet
that recommends that the accused be
discharged and the case not go to trial.79
73 See Ratification Status for Bangladesh, U.N. Human Rights Treaty Bodies, https://tbinternet.ohchr.org/_layouts/15/
TreatyBodyExternal/Treaty.aspx?CountryID=14&Lang=EN (last visited Feb. 8, 2021) (noting Bangladesh is a party to the
ICCPR and CAT).
74 See The Evidence Act, 1872 (Act No. I of 1872), § 101 (Bangl.) (“Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”); Greg
Moran, Justice Sector Facility, Criminal Justice in Bangladesh: A best practise Handbook for members of the criminal
justice system 55 (2015), https://www.undp.org/content/dam/bangladesh/docs/Projects/jsf/Best%20Practice%20
Handbook%20(Final%20Draft).pdf [hereinafter Criminal Justice in Bangladesh] (“The presumption of innocence … is
included in the law by Section 101 of the Evidence Act, which states that anyone who wants a Court to pass judgment on
any facts must prove those facts”); International Covenant on Civil and Political Rights, art. 14, opened for signature Dec.
16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR] (recognizing “the right to be presumed
innocent until proved guilty).
75 See Siddiqur Rahman Miah, FIR Arrest Search Seizure Recovery and Investigation 20-21 (1st ed., 2002) [hereinafter
Miah] (defining “investigation” as the collection of evidence conducted by a police officer or by any person (other than
a magistrate) who is authorized to do so by a Magistrate; defining inquiry as an attempt by the Court or Magistrate to
determine the truth or falsity of allegations prior to trial; and defining “trial” as a judicial proceeding that begins with the
framing of the charge—or, based on an alternative view, begins with the accused’s refusal to plead guilty—and concludes
in conviction or acquittal).
76 Ershadul Karim, Bangladesh, in IEL Cyber Law 1, 275 (Jos Dumortier ed., 2020) [hereinafter Karim IEL], (citing The Code of
Criminal Procedure, 1898, § 4(1)(b) (Bangl.)).
77 Karim IEL, 277.
78 Id. at 275 (citing Naripokkho v. Bangladesh, 10 SCOB (HCD) 140 (2018) (Bangl.)).
79 “A final report in B. P. Form No. 42 shall be drawn up by the investigating officer in every investigated case which does
not result in charge-sheet. In column 8 a clear statement of the case and of the evidence shall be given together with the
reasons for not sending up any person for trial.” Police Regulations, 1943, § 275(a) (Bangl.), https://www.police.gov.bd/
storage/upload/announcement/kFKWb9mlIyg7exUJIWnR3NYmLykT5ZIOJSt5Geaa.pdf (last accessed Jan. 2, 2020). “The
final report shall contain a specific application for the release of an arrested person from custody or his discharge from
bond. Bail and recognizance bonds shall be attached to the final report.” Id. at Id. at § 275(c).
10• Police report or “charge sheet” – A document court’s reasons for choosing not to release the
describing the outcome of the police suspect on bail.87 The deadline to conclude an
investigation that formally recommends to investigation may vary if a special law applies.88
the court that the case go to trial.80
For non-cognizable offenses, the police must refer
For a cognizable offense, a police investigation the informant to the magistrate after documenting
begins when the police receive information about the relevant details.89 The police cannot begin
an offense that has been committed.81 As noted, investigating until they receive a magistrate’s
the police file an FIR recording the information order.90
received.82 The “officer-in-charge of the police
B. Arrest
station” oversees the investigation and may
appoint a subordinate officer to investigate the International law and domestic Bangladeshi law
case.83 The ranking officer then forwards the police prohibit any deprivation of liberty if the action is
report to the magistrate.84 However, if a superior not otherwise authorized by law.91 More specifically,
investigating officer is appointed to investigate a Bangladeshi law, the ICCPR, and CAT provide
matter pursuant to the Code of Criminal Procedure, certain protections, including requirements for
1898 § 158, said officer must submit the report to warrantless arrests, use of force during an arrest,
the magistrate.85 notice of charges, and criminal procedures.
The Code of Criminal Procedure requires the police The prohibition of arbitrary and unlawful arrests
to complete an investigation within 120 days of is enshrined in article 9 of the ICCPR.92 Any arrest
filing an FIR.86 If the police do not complete their made “as punishment for the legitimate exercise
investigation within 120 days of filing the FIR, the of “the right to freedom of association,” which
court releases the suspect on bail or records the includes the right to unionize, violates article
80 See Miah, 21-22 (explaining that a “police report” or “charge-sheet” is a report the police forwards to a Magistrate and the
officer submits the charge sheet when they consider the evidence collected against the accused sufficient, and is distinct from
the final report, which is filed when the evidence is insufficient to file a charge sheet).
81 Huq IEL, 29; Karim IEL, 277. “Investigation,” for the purposes of the Code of Criminal Procedure, entails certain steps including:
“(1) proceeding to the spot; (2) ascertainment of facts and circumstances of the case; (3) discovery and the arrest of the
suspected offender or offenders, and (4) collection of evidence relating to the commission of the offence alleged which may
consist of: (a) the examination of various persons including the accused and the reduction of their statements into writing/
if the officer thinks fit; (b) the search of places or seizure of things considered necessary for the investigation and to be
produced at the trial; and (5) formation of the opinion as to whether on the materials collected there is a case to place the
accused before a court for trial and if so, taking the necessary steps for the same by the filing of a charge-sheet under section
173 of the Criminal Procedure Code.” Karim IEL, 277 (citing Moshanaf Hossain v. State 30 DLR (SC) 112 (1978) (Bangl.)).
82 Miah, 27–29; Criminal Justice in Bangladesh, 55; Huq IEL, supra note 14; Karim IEL, 277.
83 The Code of Criminal Procedure, 1898, § 157(1) (Bangl.), http://bdlaws.minlaw.gov.bd/act-75.html. If a subordinate officer is
appointed, the subordinate officer must report the results of the investigation “to the officer in charge of the police-station.”
The Code of Criminal Procedure, 1898, § 168 (Bangl.).
84 Id. at § 158.
85 Id. at § 173.
86 Id. at § 167(5).
87 Id.
88 For example, §18(1)(a) of the Nari O Shishu Nirjaton Domon Ain 2000 (Suppression of Violence against Women and Children
Act of 2000) requires the authorities to conclude an investigation within fifteen working days of an arrest if an accused is
caught red-handed. Nari O Shishu Nirjaton Domon (Amendment) Ain 2000, (Act No. VIII of 2000), § 18 (Bangl.). If the accused
is not caught red-handed in the act and an FIR is lodged, § 18(1)(b) requires the authorities to conclude an investigation
within 60 days. Id.
89 Karim IEL, 277 (citing The Code of Criminal Procedure, 1898, § 155 (Bangl.)).
90 The Code of Criminal Procedure, 1898, § 155(2) (Bangl.).
91 See Susan Price, The Legal System of Bangladesh, in Modern Legal Systems Cyclopedia: Asia 9.30.3, 9.30.26 (Linda L. Schlueter
ed., 2001) (discussing domestic Bangladeshi law); ICCPR, art. 9 (prohibiting of arbitrary and unlawful arrests); ICCPR, art. 9.
Under ICCPR jurisprudence, “[a]rrest or detention that lacks any legal basis is also arbitrary.” Human Rights Comm., General
Comment 35, Article 9 (Liberty and security of person), adopted Dec. 16, 2014, U.N. Doc. CCPR/C/GC/35, ¶ 11 (citations
omitted) [hereinafter HRC GC 35].
92 ICCPR, art. 9.
119 of the ICCPR.93 Moreover, the U.N. Human Schedule 2 of the Code of Criminal Procedure95 or
Rights Committee, which monitors State parties’ a special law, such as the Digital Security Act of
implementation of the ICCPR, explained in General 2018.96 The High Court Division of the Bangladesh
Comment 35, Supreme Court has explained that “reasonable
suspicion” exists when the arresting officer
Article 9 requires that procedures for knows of definite facts forming the basis of their
carrying out legally authorized deprivation of reasonable suspicion, and can articulate said
liberty should also be established by law and knowledge.97 This requires a police officer to have
State parties should ensure compliance with a “definite and bona fide belief” that a particular
their legally prescribed procedures. Article person committed a criminal offense and not just
9 further requires compliance with domestic a “vague surmise” that the person committed a
rules that define the procedure for arrest by crime.98 A police officer who arrests or detains
identifying the officials authorized to arrest an individual without “reasonable suspicion” or
or specifying when a warrant is required.94 a “well-founded belief” for doing so is subject
Under Bangladeshi law, a police officer may only to criminal punishment of up to seven years’
make an arrest without a warrant if the officer imprisonment and/or a fine.99 Under domestic
has a “reasonable suspicion” that the suspect Bangladeshi and international law, an officer
committed a “cognizable offense” detailed in making an arrest may use the force needed only
to prevent an escape.100 Bangladeshi law allows an
93 HRC GC 35, ¶ 17.
94 Id. at ¶ 23 (citations omitted).
95 The Code of Criminal Procedure, 1898, §§ 4(f), 54 (Bangl.). See also Criminal Justice in Bangladesh, 58 (listing the
circumstances in which § 54 of The Code of Criminal Procedure permits an officer to make a warrantless arrest). Cognizable
offenses include crimes ranging from theft to murder. The Code of Criminal Procedure, 1898, § 4(f).
96 The Digital Security Act, 2018 (Act No. XLVI of 2018), § 43 (Bangl.).
97 Bangladesh Legal Aid and Services Trust (BLAST) v. Bangladesh, 55 DLR 363 (2003) (Bangl.) [hereinafter BLAST v. Bangladesh
(2003)], https://www.blast.org.bd/content/judgement/55-DLR-363.pdf; see also BLAST v. Bangladesh, 69 DLR (AD) 63 (2017)
(Bangl.) [hereinafter BLAST v. Bangladesh (2017)], http://www.supremecourt.gov.bd/resources/documents/734650_Civil_
Appeal_No_53_of_2004_final_2016.pdf (“[W]e hold the view that a police officer while exercising such power, his satisfaction
must be based upon definite facts and materials placed before him and basing upon which the officer must consider for
himself before he takes any action. It will not be enough for him to arrest a person under this clause that there is likelihood of
cognizable offence being committed. Before arresting a person out of suspicion the police officer must carry out investigation
on the basis of the facts and materials placed before him without unnecessary delay.”). In 2017, the Appellate Division ruled
against the Bangladeshi Attorney General’s appeal, in which he argued that the High Court did not have the authority to
make certain recommendations. BLAST v. Bangladesh (2017). The Appellate Division, citing precedent and prior practice,
rejected this argument, but nonetheless determined that some of the High Court’s orders to modify the Criminal Code of
Procedure were no longer necessary in light of subsequent legislation. Id. The recommendations and directives deemed
“redundant” by the Appellate Division are not cited in this report. Id.
98 Saifuzzaman v. State, 56 DLR (HCD) 324 (2004) (Bangl.) [hereinafter Saifuzzman v. State (2004)], https://srsbharathi.
files.wordpress.com/2011/07/saifuzzaman-v-bangladesh-and-others-56-dlr-_hcd_-_2004_-324.pdf; Criminal Justice in
Bangladesh, 59 (citing Saifuzzman v. State (2004)). See also BLAST v. Bangladesh (2017) (“What is a ‘reasonable’ complaint or
suspicion must depend upon the circumstances of each particular case; but it should be at least founded on some definite
fact tending to throw suspicion on the person arrested, and not on a mere vague surmise.”).
99 See The Penal Code, 1860, § 220 (Bangl.), http://bdlaws.minlaw.gov.bd/act-11.html (making it a crime for an authority
personnel, such as a police officer, to “corruptly or maliciously” confine a person with the knowledge that the confinement
violates the law); Criminal Justice in Bangladesh, 41 (“[T]he [Bangladeshi] Supreme Court has called for police officers to
be charged for committing the offence in Section 220 of the Penal Code when they have no reasonable suspicion or proper
grounds for arresting or detaining someone in at least two cases”) (citing BLAST v. Bangladesh (2003); Alhaj Md. Yousuf Ali v.
State, 22 BLD (HCD) 23 (2002) (Bangl.)).
100 See The Code of Criminal Procedure, 1898, § 50 (Bangl.) (“The person arrested shall not be subjected to more restraint than
is necessary to prevent his escape.”); Zahirul Huq, Law and Practice of Criminal Procedure 61 (3rd ed. 1984) (“In making an
arrest no more force is to be used than is necessary”); G.A. Res. 34/169, Code of Conduct for Law Enforcement Officials, art. 3
(Dec. 17, 2019), https://www.ohchr.org/Documents/ProfessionalInterest/codeofconduct.pdf (“Law enforcement officials may
use force only when strictly necessary and to the extent required for the performance of their duty.”);
Human Rights Comm., General Comment 6, Article 6 (Right to Life), adopted Apr. 3, 1982, U.N. Doc. HRI\GEN\1\Rev.1 at 6, ¶
3 (“The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by
criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the
State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person
may be deprived of his life by such authorities.”).
12You can also read
