When a man disappears: Miraj Sheikh, state custody and the test of constitutional accountability

Miraj Sheikh, 30, was allegedly picked up by a team of Bangladesh Coast Guard personnel on the night of 10 April, which has, however, been denied by the force. The case has become particularly significant in the post-Hasina period. It raises a question that goes beyond the disappearance of one individual: what happens when a person is allegedly taken into the custody of state forces, the authorities deny custody, and the ordinary criminal justice process fails to provide an effective answer?

Following the alleged disappearance, a writ petition was filed before the High Court Division. On 12 July, the court directed the Government to locate Miraj Sheikh and produce him before the court within 15 days. At present, there may be no criminal evidence capable of establishing, beyond reasonable doubt, that Miraj Sheikh was abducted or forcibly disappeared by members of the Coast Guard. But this does not bring the legal inquiry to an end. It may, in fact, require the matter to be examined through a different legal framework: constitutional and human rights law rather than criminal law alone. The central question is this: Can the constitutional duty to protect life, liberty and personal security be rendered ineffective simply because the criminal justice system has not yet produced evidence sufficient to establish individual guilt? If the answer is yes, then the constitutional guarantees of liberty and protection from unlawful deprivation of life would become dependent upon the success or failure of a criminal investigation. That would significantly diminish the independent value of constitutional protection.

The Supreme Courts of Bangladesh and India have recognised, in different contexts, that serious breaches of public duty resulting in violations of fundamental rights may give rise to constitutional remedies independently of criminal prosecution or statutory liability. The prior constitutional question is whether there is sufficient material before the High Court to establish, at least prima facie, that Miraj Sheikh was taken into the custody of state agents and subsequently disappeared.

Several pieces of evidence reportedly exist that may require careful examination by the High Court. First, there is reportedly a General Diary entry made by Miraj Sheikh's wife, recording her allegation that he had been taken into Coast Guard custody. Second, telephone communications between Miraj Sheikh's wife and relevant Coast Guard personnel may constitute potentially important prima facie evidence, depending on their content and authenticity. Third, Miraj's wife has reportedly stated that she saw her husband being held near or at a Coast Guard pontoon. Fourth, the High Court may, where legally appropriate, seek relevant call-detail records and other telecommunications information in order to establish the movements and communications of Miraj Sheikh and other relevant persons. Fifth, there is also an allegation concerning Miraj's motorcycle. It is claimed that he left the motorcycle with a shopkeeper and that a Coast Guard member subsequently collected it. If supported by credible evidence, this too may form part of the factual matrix requiring investigation.

None of these pieces of evidence, standing alone, necessarily proves criminal guilt. Nor is it necessary, at the present constitutional stage, for each allegation to meet the criminal standard of proof. Taken together, however, they may be sufficient to require a serious judicial inquiry into whether Miraj Sheikh was "last seen" in the custody of state agents and what subsequently happened to him.

Another development may also deserve careful judicial consideration. Following the incident, Bangladesh Coast Guard reportedly filed a case against more than 300 people in connection with an attack on its Harbaria station in Mongla. According to the allegations reported in connection with the case, the missing fisherman's wife, Mukta Khatun, his sister Liza Islam and his mother Taslima Begum were among those accused. The case reportedly named 44 individuals and included between 250 and 300 unnamed persons on allegations including obstruction of government duties and rioting. The filing of such a counter-case does not, by itself, establish wrongdoing by the Coast Guard. But in the context of an alleged enforced disappearance, it may constitute a relevant part of the broader factual background for public law.

This is particularly important because, in judicial review and constitutional proceedings, the High Court is not determining criminal guilt. The question is whether the available evidence establishes a prima facie case of a serious violation of fundamental rights or public duties requiring constitutional intervention. Comparable judicial approaches can be found in India. In Union of India v Luithukla (Smt.) and Others, (1999) 9 SCC 273, armed personnel allegedly took the victim's husband into custody on 6 November 1983. His brother visited the army camp the following day but received no information about his whereabouts. A police complaint was lodged, and repeated attempts to locate him proved unsuccessful. A habeas corpus petition was eventually filed. The Supreme Court upheld the finding that the missing person had been "last seen" in the custody of security forces and had not been seen thereafter. The security forces were consequently held responsible, and compensation was awarded to the victim's wife along with a cost order. The significance of this approach lies in its recognition that state responsibility may arise even where an ordinary criminal prosecution has not yet established the individual guilt of a particular officer.

Thus, the question for a constitutional court is different: If a person was "last seen" in the custody of state agents and subsequently disappears, what explanation does the state have for his disappearance? This approach may be particularly relevant in the case of Miraj Sheikh. If the available evidence establishes, even prima facie, that he was taken into state custody and has not been seen since, the burden of explanation cannot simply disappear with the state's denial of custody. The state has a constitutional obligation to account for the liberty and security of persons who may have come under the control of its agents. The constitutional duty of the state does not end merely because one agency denies involvement. The state remains responsible for ensuring an effective investigation and for taking all reasonable measures to establish the whereabouts of a missing person where credible allegations of state involvement exist.

There is also an instructive quasi-judicial precedent in the practice of the National Human Rights Commission of India. In the Tayab Ali case, it was alleged that Tayab Ali had been picked up by armed personnel and taken to their headquarters. The armed forces denied the allegation. The Indian NHRC sought reports from both the Ministry of Defence and the Ministry of Home Affairs. Having identified inconsistencies between the accounts provided by the two ministries, the Commission examined the available material alongside witness testimony. It found that the evidence did not adequately rebut the allegation that Tayab Ali had been taken by armed personnel. On that basis, the Commission treated the matter as establishing sufficient grounds for state responsibility and recommended INR 3,00,000 as interim monetary relief to the victim's wife.

The disappearance of Miraj Sheikh is ultimately a test of whether constitutional and human rights protections can operate independently when the criminal justice system is unable or unwilling to provide an immediate answer. The High Court therefore has an opportunity to clarify an important constitutional principle: the protection of life and liberty cannot be suspended simply because criminal liability has not yet been established beyond reasonable doubt. The real test of the rule of law is not how it deals with an ordinary allegation of crime. It is how it responds when there is credible evidence that a citizen may have disappeared after coming into contact with the power of the state.

Md Abdul Halim is an Advocate of the Appellate Division of the Supreme Court of Bangladesh. He may be reached at halim_md@yahoo.co.uk.