Why is deporting Bangabandhu's killer from Canada proving so difficult?

Major (retired) Noor Chowdhury, one of the convicts in the Bangabandhu murder case who has been sentenced to death, has been residing in Canada since 1996. 

Although Canada denied him political asylum and ordered his deportation in 2006, it is now unwilling to follow through with its decision. So, the Bangladesh government cannot execute the judgment against him. 

The issue of Chowdhury's deportation has created legal confusion in Canada and strained her diplomatic relations with Bangladesh. Last year, the CBC, a reputed public broadcasting organisation, conducted a months-long investigation to update Canadians about the current state of Chowdhury's residential status. The report of this journalistic inquiry was aired on 17 November 2023 on its popular documentary show The Fifth Estate. 

So what did the CBC unearth? 

Chowdhury entered Canada in June 1996 with a visitor's visa. The following year, he applied for refugee status, pleading that his life would be endangered if he returned to Bangladesh. He claimed that he had been "vindictively implicated in the murder case of Bangladeshi President Sheik Mujibur Rahman. This was a political murder case in which he had no involvement. It was a setup to take a vendetta against him because he was an outspoken critic of the erstwhile President". 

The Immigration and Refugee Board (IRB) Canada, which looks after all refugee claims, processed Chowdhury's application. But after a long investigation, it concluded that Chowdhury's story was untrue. 

He had no factual evidence to prove the authenticity of his claim. Chowdhury was a fugitive from justice because his trial in Bangladesh was fair. IRB then rejected Chowdhury's appeal in 2002. After completing all legal procedures, Immigration, Refugee and Citizenship Canada (IRCC) issued a deportation order in 2006 and informed the Bangladesh High Commission in Ottawa accordingly.

However, the Bangladesh Nationalist Party (BNP) was in power at the time and so the mission in Canada did nothing. When the Awami League, led by now Prime Minister Sheikh Hasina, returned to power through a landslide victory in parliamentary elections held in December 2008, the government completed all legal procedures in 2009 concerning the 1975 massacre case. 

Following the judgement, the Bangladesh government intensified its diplomatic efforts to bring back all convicted fugitives, including Noor Chowdhury, living in foreign countries. Unfortunately, the Canadian government declined to cooperate by sealing all Chowdhury's residential status information. A frustrated Bangladesh High Commission then sued the Canadian government in a federal court to get them to reveal Chowdhury's residential status.

The court ruled in the High Commission's favour and directed the Canadian government to 'revisit' its policy. This ruling, therefore, was not mandatory for the government. In a letter, dated 29 January 2021, the Canadian Justice Ministry communicated its decision to the Bangladesh High Commission. The message of this letter is critically important to understand the nature of legal and political factors that are preventing Chowdhury's deportation. 

"While there may be benefits in disclosing the information [about Chowdhury's status], such as supporting that Canada is not a safe haven for criminals and enhancing diplomatic relations, these benefits must be weighed against Canada's position and Canada's obligations, as affirmed by the Supreme Court of Canada, regarding the removal of a person to face the death penalty … These benefits do not take precedence over Canada's stance regarding the death penalty," the letter read. 

The Canadian government's ultimate argument against Chowdhury's deportation is the Supreme Court of Canada's ruling regarding the removal of a person to face the death penalty abroad. 

The ruling referred to here concerns the United States vs. Burns (2001) leave-to-appeal case. The appellants in this case were two 18-year-old Canadian teenagers Atif Rafay and Sebastian Burns.  On 13 July 1994, they mercilessly murdered three members of a Canadian family in Bellevue, Washington, US. These murdered people happened to Rafay's parents and sister. Washington police suspected them of committing this brutal crime but did not have enough evidence to detain them. Rafay and Burns took advantage of this opportunity and bolted to their home in Western Vancouver, BC.  

When the Washington police gathered enough evidence to charge them with three counts of first-degree murder, it sought help from Canada's federal police force, the Royal Canadian Mounted Police, to capture them under the Canada-US extradition treaty. 

Article 6 of the treaty describes the condition under which this extradition must take place when the extradited accused or convict might face the death penalty. In this case, the Canadian authority must obtain assurances not to impose the death penalty. However, if the US law prescribes this capital punishment, the US authority must ensure that this sentence will not be executed. 

Since Rafay and Burns were Canadian citizens, they used the The Canadian Charter of Rights and Freedoms to argue that their fundamental rights under Section 7 would be violated if the government extradited them without any assurance of not executing the death penalty, because capital punishment for capital crime is the law in the state of Washington. 

According Section 7 of The Canadian Charter of Rights and Freedoms, which concerns the citizens' legal rights, "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." According to this article, Rafay and Burns' legal rights would be violated if the government did not follow the treaty conditions. The Supreme Court unanimously agreed with the defence and ordered the government to obtain necessary assurances before surrendering the fugitives to the US authority.

All Bangladeshis, particularly those living in Canada permanently, must investigate if the soundness of the Canadian justification for sheltering Noor Chowdhury is violating international law specifically agreed under Interpol law. 

This world inter-governmental agency has been created to facilitate crime-controlling activities in all member countries by exchanging fugitives who cross international borders. The reason is that each sovereign state formulates laws and regulations to maintain order in its defined territory. Thus, these laws and regulations are not applicable in other countries. 

Naturally, all offenders must be tried by the judicial authority under whose jurisdiction offences occur. The Canadian authorities could not try Rafay and Burns in a Canadian court, for which they first appealed. However, the two young Canadians were granted protection for two reasons. Firstly, they were Canadian citizens, which qualified them to seek the Charter's protection. Second, Article 6 of the Canada-US Extradition Treaty made Section 7 relevant in their case. We would not know what would have been the Supreme Court's verdict if Article 6 was not incorporated in the treaty.  

Second, Noor Chowdhury is not a Canadian citizen or a permanent resident. Therefore, he does not qualify for the Charter's protection because his crime did not occur on Canadian soil. Then, the Canadian government deprived Chowdhury of all kinds of legal protection by rejecting his refugee application. A foreigner who does not qualify to be a refugee cannot expect sympathy from anyone. The argument of the Canadian government is too weak to appeal to our common sense from both national and international perspectives.

Sketch: TBS

Dr Elahi, a former faculty of the Bangladesh Agricultural University, currently resides in Guelph, Ontario, Canada.