Bangladesh: IBAHRI condemns imprisonment of human rights defenders and calls for their immediate release

The International Bar Association’s Human Rights Institute (IBAHRI) condemns the imprisonment of rights defenders, Adilur Rahman Khan and ASM Nasiruddin Elan, and calls on the Bangladesh authorities to release them immediately and quash their convictions. On 14 September 2023, Khan and Elan were remanded to Dhaka Central Jail for two years and ordered to pay a fine of BDT 10,000 (equivalent to €85) each.

Khan, a human rights lawyer who has served as an Advocate before the Supreme Court of Bangladesh as well as the former Deputy Attorney General of Bangladesh, is the founder (now secretary) of Odhikar – a prominent rights organisation. In 2014, he was awarded the IBA Award for Outstanding Contribution by a Legal Practitioner to Human Rights for his tireless work against torture, extrajudicial killings, enforced disappearances, and violence against women and minority communities in Bangladesh. Elan is the organisation’s director. It is reported that both individuals have endured severe persecution by the government of Bangladesh, via public smear campaigns at the organisational and personal level, because of their fight against human rights abuses and repression.

IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, commented: ‘We are appalled to see the conviction of human rights defenders, Adilur Rahman Khan and ASM Nasiruddin Elan. It is deeply concerning to witness state tactics to silence dissent, discredit the work of human rights lawyers and defenders and distract attention from serious human rights violations. We call for the immediate release of our esteemed colleagues and urge the authorities to cease reprisals against them and other human rights defenders in Bangladesh. The United Nations Declaration on Human Rights Defenders makes clear that states must create an enabling environment for human rights defenders and take all necessary measures to protect them from harassment, intimidation, and retaliations.’

The Cyber Tribunal of Dhaka convicted Khan and Elan over a fact-finding report by Odhikar that documented at least 61 extrajudicial killings by security forces during a protest in May 2013. The government has denied that there were any casualties. The decade-long case against Khan and Elan was brought under Section 57 of the Information and Communication Technology Act 2006 ‘for publishing fake, obscene or defaming information in electronic form’. These charges are incompatible with Article 19 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Bangladesh on 6 September 2000.

The Information and Communication Technology Act (ICT) 2006, and specifically Section 57 of the Act, has long been criticised as draconian and vague law that is used by Bangladeshi authorities to crack down on the right to freedom of expression. Section 57 criminalises the publishing of material in electronic form that is ‘fake or obscene’, ‘defamatory’, ‘tends to deprave or corrupt’, cause or may cause ‘deterioration in law and order’, prejudices the image of the state or a person, or cause or may cause ‘hurt to religious belief’. An amendment to this law in 2013 further removed judicial safeguards by eliminating the need for warrants, authorisation to prosecute and restrict bail, and establishing a new Cyber Tribunal.

It has been reported that police filed 1,271 charge sheets in five years under the ICT Act. In an interview, the Special Public Prosecutor of the Cyber Tribunal admitted that 65–70 per cent of Section 57 cases cannot be proven in court, and while he said that police incompetence is partly to blame, he noted how ‘some cases are totally fabricated and are filed to harass people. Most of these cases are settled out of court’.

The Digital Security Act (DSA) 2018 replaced the ICT Act of 2006 but retains the former law’s draconian aspects. Between 2018 and 2023, over 7,000 cases were filed under the DSA, with more than 50 per cent of the defendants being journalists, politicians and students. A draft Cyber Security Act is currently being discussed to replace the DSA, but rights groups continue to warn about its repressive features.

During trial proceedings, fair trial due process violations had been noted in contravention of Article 14 of the ICCPR. In 2013, Khan was not allowed to speak with his family or gain initial access to his lawyers. Since the case was transferred to the Dhaka Cyber Tribunal in 2017, other violations include how the prosecution was allowed to conduct further investigations after the examination of witnesses closed and the defence only received the investigation report a day before trial. At the May 2023 hearings, the judge did not permit international observers in the courtroom and failed to provide clarity about the basis of this decision.

On 11 July 2023, independent experts, appointed by the UN commented that the case set a ‘dangerous precedent for the observance of due process and the right to a fair trial’. Mary Lawlor, Special Rapporteur on the situation of human rights defenders, Irene Khan, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and Clément Nyaletsossi Voule, Special Rapporteur on the rights to freedom of peaceful assembly and of association, noted specifically how attacks against Odhikar ‘reflects the ongoing harassment and targeting of human rights defenders and organisations in Bangladesh’.

The UN experts called on Bangladesh to ‘end harassment of human rights defenders’ and ‘urged the Government of Bangladesh to immediately cease the reprisals, judicial harassment and smear campaigns against Odhikar, including its leaders and human rights defenders Adilur Rahman Khan and ASM Nasiruddin Elan’.

In 2014 Odhikar’s bank accounts were frozen, and in June 2022, the Bangladeshi NGO Affairs Bureau – a government office in Bangladesh that regulates non-governmental agencies – deregistered Odhikar for ‘tarnishing the image of the State’.

IBAHRI Co-Chair Mark Stephens CBE stated: ‘The treatment of Adilur Rahman Khan and ASM Nasiruddin Elan is a despicable example of how the Bangladesh authorities are punishing, and attempting to silence, those speaking truth to power. The UN Basic Principles on the Role of Lawyers provide that lawyers must be allowed to carry out their work “without intimidation, hindrance, harassment or improper interference” and shall have the right to take part in public discussions of matters concerning the law, administration of justice and the promotion and protection of human rights. Furthermore, the IBAHRI respectfully reminds the authorities that as a State Party to the ICCPR, Bangladesh is obliged to guarantee the right to a fair trial (Article 14) and is prohibited from infringing on an individual’s freedom of expression (Article 19) and right to peaceful assembly (Article 21). We call for the immediate release of Khan, Elan and all other human rights defenders unjustly imprisoned.’

Lawyers for Khan and Elan have said that they plan to appeal the ruling once the court issues the written judgement.