Infringement of human rights is a major concern throughout the world today. Bangladesh is not an exception to this human rights violation has become endemic and remedies for breaches are almost non-existent. Member of the law enforcement agencies are often accused of abusing their powers and defying human rights. Allegations of torture and extortion of money are also common against them.Torture is universally condemned, and whatever its actual practice, no country publicly supports torture or opposes its eradication. Therefore, one of the most fundamental aspects of human rights law is the universal proscription of torture.Torture is a serious violation of human rights and is strictly prohibited by international law. As the use of torture strikes at the very heart of civil and political freedoms, it was one of the first issues dealt with by the UN in its development of human rights standards. One of its earliest measures was to abolish corporal punishment in colonial territories in 1949. International law prohibits torture and other forms of inhuman and degrading treatment, which cannot be accept under any circumstances.Despite being stringently outlawed, torture continues to be practiced in a majority of countries round the world. A 2001 report by Amnesty International highlighted the use of torture by 140 states between 1997 and 2001, and found that every thousands of perpetrators beat rape and electrocute other human beings. The picture arising from the opinion provided by the public and the police is not very encouraging and hopeful. There is profound mistrust and scepticism among the activities of police. They have lots of allegation as well. Moreover, people of Bangladesh are commonly ignorant about their rights and legal provisions that can provide redress for the violations of their rights. They also fear to ask police for the protection of their rights. Arbitrary behaviour of police is the prima cause for the negative attitude. Lack of monitoring and accountability and unrestricted power drive them to indulge in reckless behaviour. Absence of cooperation, coordination and presence of malice as well disturbing dynamics hinders the smooth relation between police and the public. So it is a need of time to improve this situation which may be implemented by the state’s cooperation as well as by initiating necessary reforms.
1.1 Definition of Torture
In the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment torture defined as “any act by which sever pain or suffering, whether physical or mental, is intentionally inflicted on a person for which purposes as obtain from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiesance of a public official or other person acting in an official capacity”. (Article 1)
Definitions of torture vary slightly between different international treaties but
generally cover any act which:
– causes severe pain or suffering;
– is intentionally inflicted on a person;
– is done to obtain information or a confession, punishment for an act he or third person has committed or is suspected of having committed, or to intimidate or coerce him or a third person, or for any reason based on discrimination of any kind; and
– is done at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.
The term “torture” encompass a variety of methods including sever beatings, electric shock, sexual abuse and rape, prolonged solitary confinement, hard labor, near drowning, near suffocation, mutilation, and hanging for prolonged periods.
Although there is no exhaustive list of prohibited acts, international law has made it clear that torture is “cruel, inhuman, or degrading treatment.” In addition to the types of sever pain and suffering mentioned above, torture thus also includes being forced to stand spread eagled against the wall for hours; being subjected to bright lights or blindfolding; being subjected to continuous loud noise; being deprived of sleep, food or drink; being subjected to forced constant standing or crouching; or violent shaking.
Moreover, torture is not limited to acts causing physical pain or injury. It includes acts that cause mental suffering, such as through threats against family or loved ones.
And, regarding human scientific experimentation conducted by governments without the knowledge consent of victims, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment does not contain this provision, although the earlier prohibition against torture in article 7 of the International Covenant on Civil and Political Rights stipulates that “no one shall be subject without his free consent to medical or scientific experimentation.” The human experiment conducted by the Nazis during World War II would fall under this category. Whether the definition of torture encompasses judicial corporal punishment (e.g. amputation, branding and various forms of flogging, including whipping and caning) or the death penalty, is a contested issue. Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, often referred to as the UN Convention against Torture, excludes “pain or suffering arising only from, inherent in or incidental to lawful sanction”. Some states have used this provision to argue that legally authorized criminal penalties resulting in physical harm do not constitute torture. Moreover, they claim that this wording by its very existence legitimizes the use of the death penalty or corporal punishment. Opponents disagree saying these provisions are without prejudice to other international treaties which safeguard the right to life and the security of a person. In fact, in some cases, international and regional institutions have found that certain forms of corporal punishment do amount to torture or inhuman and degrading treatment.
1.2 Human Dignity and Torture
Protection of the fundamental rights of individual is the central edifice on which the concept of democracy is based. All instruments and mechanics of a democratic system of government are meant to protect these rights. These rights cannot be curtailed, abridged or compromised except in accordance with law. This unique feature of democracy has made it the most widely accepted system of government in the world. However, the very foundation of a democracy is shattered and frustrated if the basic rights of its people cannot be protected or enforced through legal means. In that case, democracy loses its worth and become a theoretical burden.
The heart of all human rights documents, UDHR recognizes the inherent dignity and of equal and inalienable rights of all members of the human family as is the foundation of freedom, justice and peace in the world. The concept of human dignity is not static but dynamic in the sense that its essential components increase in number and volume with the passage of time. In the case of Bachan Singh vs. State of Punjab, Bhagwati, J. tuning to the Indian constitution found that:
“it is human document which respects the dignity of the individual and the worth of the human person and directs every organ of the state to strive for the fullest development of the personality of every individual undoubtedly …the entire thrust of the Constitution is in the direction of the development of the full potential of every citizen and the right of life along with basic human dignity is highly prized and cherished and torture and cruel or inhuman treatment or punishment which would be degrading and destructive of human dignity are constitutionally forbidden.” The notion of human rights is omnipotent for every human being for upholding his human dignity but all human rights cannot be valued at equal standing. So, priorities can be given which may be varied from country to country. But there are some basic human rights which must obtain precedence among every right no matter in which country it applies for. For example, right to life, prohibition against torture, equality before law etc. Even during an official proclaimed state of emergency, the International Covenant of Civil and Political Rights (ICCPR 1966) permits limitations on some rights to the extent strictly required by the exigencies of the situation. Even then certain basic rights such as right to life and prohibition on torture and other cruel, inhuman or degrading treatment may never be restricted. The first pronouncement of prohibition against torture was made under Article 5 of the UDHR as “no one shall be subject to torture or cruel, inhuman or degrading treatment or punishment”. Later on this single article contributed to create a whole convention namely the Convention against torture and other cruel, inhuman or degrading treatment or punishment. The term torture significantly placed in most of the important international human rights document but it was actually the torture Convention that clearly defined the concept torture. Recognizing human rights as the inherent dignity of all human being, the Torture Convention was adopted in 10 December 1984 that has 145 state parties till April 2008.
INTERNATIONAL LAWS REGARDING TORTURE
The Universal Declaration of Human Rights, 1948 holds that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. This sentiment is similarly expressed in the International Convention on Political and Civil Rights, 1966 and the Geneva Convention, 1949 dealing with the protection of the prisoners of war. Regional human rights instrument like the European Convention for the protection of Human Rights and Fundamental Freedoms, 1950, the American Convention on Human Rights, 1969and the African Charter on Human and People’s Rights, 1981 also carry the same sentiment. The General Assembly of the United Nations adopted in 1975 the Declaration on Protection of all persons from being subjected to Torture and other Cruel, Inhuman or Degrading Punishment and later, in 1977 the General Assembly mandated the UN Commission on Human Rights to draft a convention against Torture. Accordingly, the drafting commenced in 1978. Finally in 1984, the convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (hereinafter referred to as CAT) was adopted. In its final form, the CAT was based substantially, but not exclusively, on the declaration against torture. The CAT entered into force on 26 June 1987. This is the first binding international instrument exclusively dedicated to the struggle against torture. It is one of the most widely ratified human rights conventions with 141 state parties as of 26 January 2006. The CAT itself is supplemented by several other UN General Assembly initiatives promulgated in part as a result of pressure from global civil society. These developments included the drafting of the body of principles for the protection of all persons under any form of detention or imprisonment, the Code of Conduct for Law Enforcement officials, and the Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or degrading Treatment or Punishment. In 1985, the UN Commission on Human Rights established the office of the Special Reporter on Torture. The treaty-making process and the enforcement mechanisms created by the United Nations are in itself an extremely important part of the efforts to universally eradicate torture. Under international law, states parties are required to ensure that their domestic laws are in line with their obligation under the Conventions. By now, many states have enacted specific laws to implement their obligations under the CAT. References, for examples, can be made to the Australian Crimes (Torture) Act of 1988, the Mexican Federal Act to prevent and punish Torture of 1991, the Netherlands Act of 29 September 1988 for the implementation of the Convention against Torture and Other Cruel, inhuman or degrading treatment or punishment, the Sri Lankan Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, the Torture Prohibition Act of 1988 of Yukon Territory in Canada, the Crimes of Torture Act of 1989 in New Zealand and the Torture Act of 2000 in the United States. Nevertheless, there are serious shortcomings in national laws purporting to implement Convention (CAT) obligations. This is primarily because; the implementation of the Convention has not attracted a high decree of public international interest and has in most countries not been a policy priority. Accordingly, less work and attention has been devoted to furthering the incorporation of the Convention into domestic law. In such a backdrop of international scenarios, audit on implementation of the CAT or any of its provision in the domestic arena of a country is utmost importance.
LEGAL OBLIGATION OF BANGLADESH AGAINST TORTURE
3.1 Constitutional and Treaty obligation
Torture is prohibited under the Constitution of Bangladesh which states: “No person shall be subjected to torture or cruel, inhuman or degrading punishment or treatment”. Even a person accused for criminal offence has the right to an independent, impartial trial which has been articulated in article 35(3)-“Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law”. Surprisingly there is no clear definition about torture in custody. But Bangladesh can authentically cite the definition of ‘torture’ from the Torture Convention as Bangladesh became the member of the convention on 5th Oct 1998. Name of some treaties are given below to demonstrate the position of Bangladesh regarding torture or similar issues—
|Human Rights convention regarding torture|
Date of Adoption/Signature
|Registration, Ratification, Accession(a),succession(d)|
|Convention on the Prevention and Punishment of the crime of Genocide, 1948.|
5 Oct 1998
|International Convention on Civil and Political Rights, 1966.|
7 Sep 2000
|Convention on the Elimination of All forms of Discrimination Against Women, 1979.|
6 Nov 1994
|Convention against Torture and other cruel, Inhuman or degrading treatment or punishment, 1984.|
5 Oct 1998
|Convention Relating to the statues of Refugees,|
|International Convention of the Elimination of All forms of Racial Discrimination, 1966.|
11 June 1979
|Convention on the rights of the Child, 1989.|
26 January 1990
3 August 1990
The Torture convention was ratified by the government of Bangladesh in October, 1998 reserving the article 14 paragraph 1 of it, which states that “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.” While ratifying the CAT Bangladesh declared that it “will apply article 14 Para 1 in consonance with the existing laws and legislation in the country.” Again Bangladesh has not accepted the competence of either the Committee against Torture or the Human Rights Committee to received individual complaints about torture. In absence of any international mechanism, victims of torture can only recourse to the domestic remedies.
3.2 Other Municipal Laws
Torture has become integral part of the policing and the law-enforcement system, in the military, paramilitary and security forces for persons both in custody and otherwise.
The history of law enforcing agencies is undeniably related with the history of law and state. Earlier, it was supposed that a state is nothing but a political means to safeguard the economic interests of the class in power. Even though different attempts have been made to define ‘state’, popularly by state we understand a huge force. This force can be seen in the state laws, in institution like police, answer, BDR, armed forces, prisons etc. But with the development and progress of time most of the states takes the veil of welfare state where they demand to give the best treatment to the citizens according to their wealth. It has been argued that law enforcing agencies are necessary for protecting the good and punishing the evil. According to the Police Act of 1861 maintaining law and order is the principal function of the police. The Code of Criminal Procedure prohibits police officers from inducement as well threat. Torture is used as a method of extracting money and confessions from the detainees. The term, ‘interrogation’ in police remand, the Joint Interrogation Cell and “Task Force of Interrogation” as part of criminal investigation is synonymous with torture. The whole process becomes phrase where section. 161 of CrPC clearly declares the confession made the confession in the police station. In this regard a comparative discussion may be made, for example, in the United States any statement made to the police may afterward be used against the person making the statement. But according to our law and any statement recorded under 161 of the Code of Criminal Procedure, 1898 may afterwards be withdrawn by the person making the statement. Thus in reality the extent of using the evidence given under 161 against the person giving the same is very limited.
TORTURE AND CUSTODIAL VIOLENCE IN BANGLADESH
In criminal jurisprudence the wider interpretation of the term ‘custodial violence’ may include all kinds of physical and mental torture inflicted upon, or inhuman or degrading treatment given to, a person in police custody. It also includes death and torture in police lockups. While considering torture in police custody, the Supreme Court of India observed that “committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless” (D.K. Basu vs. State of West Bengal). In the same judgment the judges also stated “custodial torture is a naked violation of human dignity and degrading which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward.” Eventually, the Supreme Court of India held that any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of the Constitutional provisions as to right to life and liberty of a person whenever it occurs during investigation, interrogation or otherwise. The Constitution of Bangladesh also expressly prohibits torture and other forms of cruel and degrading treatment under Article 35(5). Several provision of the Cr.P.C call for judicial scrutiny by magistrates in the event of granting detentions and remand with a view to reducing if not eliminating custodial torture. Causing hurt to a person in order to extract confession, wrongful confinement voluntarily, causing grievous hurt, rape and murder are punishable offences under the Penal Code. Also, Article 35 provides that a person shall not be compelled to be witness against himself and Section 25 of the Evidence Act provides that an arrested person should not be coerced and intimidation to answer self-incriminating questions.
Allegedly, in Bangladesh, people are subjected to torture as a substitute for police investigations other than a number reason which include harassing and implicating innocent people through fabrication of cases, extortion and bribery, saving influential people and godfather of criminal activities, extracting statements that would ensure real perpetrators to go scot-free, for maintaining law and order as well as seeking revenge and settling the score by the rich and powerful. Violence in police custody varies from calling names, slapping, kicking, beating, sexual harassment and rape to most heinous instances like death. Keeping people in lock-up like animals, providing inadequate or no food or drink, keeping men, women, children together are also inhuman practice existing in police custody.
While any kind of torture is unacceptable to the civilized people, recent rise in death of people in police custody or during investigation has shocked every conscious being. In particular, extra-judicial killing of accused persons in crossfire has become a hot topic of discussion and is being strongly condemned by the civil society, rights groups and media. According to newspaper reports a total of 256 suspects were killed in crossfire since the inception of Rapid Action Battalion (RAB).
Despite relevant safeguards available under the Constitution, international Convention and procedural laws, the instance of torture in police custody have significantly increased in recent years.
4.1 Allegations against RAB
4.1.1. Torture of Joypurhat Bar Association Vice President
ASK investigation in April 2008 regarding allegation of torture on advocate Biman Chandra Basak, Vice President of the Joypurhat Bar Association, revealed that two persons in RAB uniforms, along with six or seven men in plainclothes, caught Biman at arund 3.00 am on 3 April, about 200 yard away from his house. They tortured him and interrogated him about two statues. They took him handcuffed in their microbus to a school ground, where the poured water into his mouth and nose. As villagers gathered to protect Biman, the attackers, who introduced themselves as RAB members, threatened the villagers. After about an hour of torture, they left the place and Biman was admitted in Joypurhat hospital with severe injuries including a fractured leg. The commander of the Joypurhat RAB camp claimed that no one from his unit was involved in the incident. He mentioned that the Bogra RAB camp may have conducted the operation. Later, he claimed that the attackers were not members of RAB at all. Although Biman said he could identify the perpetrators, there was no report to date of any such identification having been made, or of any further inquiry into the matter.
4.1.2. High court orders RAB to produce detainee
The High Court on 26 October 2008 asked RAB to explain in three weeks why it should not be ordered to produce Hasan Khan, Whom it had allegedly detained on 25 May 2008 and whose whereabouts were since unknown. The court passed the order after hearing a writ petition filed by ASK and Hasan’s wife Hasi Begum. ASK’s investigations indicated that a RAB team had arrested Hasan Khan of Dattapara, Tongi on 25 May 2008, when he, and his wife Hasi, were returning home after his appearance in a criminal case in Gazipur court. The RAB personnel gave no reason for the arrest, Hasi followed the microbus that took her husband towards the RAB office at Uttara. She was denied access to the office. ASK wrote to the DG RAB seeking information on Hasan’s whereabouts, but since they received no response, a PIL was filed by ASK.
4.1.3. Allegations of Babul’s torture by RAB
Mohammad Babul (30 years), a cloth trader, of Ispahani area in Aganagar of Dakhin keraniganj in Dhaka, on his way to Kaliganj, on 24 July, to collect dues from one of his customers, was suddenly arrested by a team of RAB-10 unit, blindfolded and driven away in a microbus. After some time, the black cloth was removed.
Babul was admitted to DhakaMedicalCollegeHospital, where he told journalists that he was taken to an empty field in Postogola, where “they tried to tie me down, I resisted. The RAB men fired blank shots and shouted, ‘the terrorist is fleeing. Catch him. Shoot him’.” “One of them stood on my chest and started beating me. All the time they were asking me to give them the firearms. One of them said, ‘Shoot him in the leg.’ I was shot on the right leg. I screamed in pain. Another said, ‘Shoot him again’ and I was shot again in my leg. I was praying to Allah all the time for my life”
In RAB’s version of events, after they arrested him on 25 July (not 24 July as Babul claims) and accompanied him to recover a cache of firearms, his “accomplices” fired on them. When Babul tried to flee during the gunfight he received bullet injuries. The RAB-10 commanding officer SM Kamal Hossain, accused him of being “a criminal in the guise of a clothes trader,” running a syndicate of brand forgers and selling counterfeit clothes. Babul admitted that he had been earlier implicated in a fraud case but denied any other involvement in crime. This was confirmed by the Kotwali thana police Officer in Charge Abdul Hannan who commented that Babul “is not on the list of criminals, let alone being a top criminal.”
Parents demand investigation into son’s death in RAB “crossfire”
Mosharaf Hossain Sentu (28 years), who had come from Korea, and his friend Rezaul Karim (27 years), a salesperson, were allegedly killed in “crossfire” by a team of RAB-10 on 14 July 2008 at Shyampur. At a press conference on 28 July, the parents of both men stated that a plainclothes team of RAB-10, instigated by some local drug-peddlers and land-grabbers, had picked their sons up on 12 July 2008 from near their residences. They contacted RAB-10’s office, but RAB denied arresting them. After being informed by local people of their sons’ deaths on 12 July 2008, the parents again went to the RAB office at night. They were told to contact the Shyampur police station. The parents claimed that there were no criminal records against their sons, and that their work with the local community to combat crime had resulted in their facing such reprisals. They appealed to the authorities including the Director-General of RAB to conduct a proper investigation and ensure punishment of the guilty. There is no information of any such investigation having been held to date.
The following allegation of custodial torture by RAB has also been reported, without any clear information as to action taken in respect of each incident:
On 18 March 2008, Md. Afzal Khan (21), of village Binodpur, Charekandi, District Shariatpur, was arrested by a team of the RAB-8, and died in Dhaka Medical College Hospital on 20 March. His father Abdur Rahman, a retired subedar of the Bangladesh Army said that on 21 March, on collection Afzal’s body from the DMCH morgue he found multiple injury marks. There were wounds on the left side of the forehead, on the cheeks, lips, gums and the rear end of the Skull. Afzal’s neck was also broken on the left side. His stomach was inflated; the veins of his legs had been slit and bore blood stains.
4.2Allegations against police
Several allegations of police torture reported in 2008 included the following:
On 16 March 2008, a bakery worker, Nazrul Islam, was allegedly beaten and his leg fractured by Quamrul Islam, Officer-in-Charge of Srinagar police station in Munshiganj, because he bathed in the police station pond.
On 17 March 2008 at around 3:00 am Munsur Ali (45years), of Nayapara village of Saturia in Manikganj, and his daughter Rahima Akter, a college student, were allegedly tortured by policemen who accused them of abetting a man to escape arrest. No case was filed in either incident.
An incident of custodial rape was recorded by the police in Rajshahi on 9 October against an Assistant Sub-Inspector (ASI) of Boalia Police Station on charges of raping a field worker of an insurance company. According to the FIR, ASI Faruk used to harass the victim over phone and one afternoon he took ASI Abdul Hamid to the victim’s house. The victim lived with her mother. The rapist threatened the victim saying that he is a policeman and raped her. Later, the victim narrated the incident to her mother who with the help of a person named Alam admitted her to the One Stop Crisis Center (OCC). ASI Abdul Hamid and Faruk who were named in the first information report went into hiding after filing of the case.
In Blast and Others v.Bangladesh and Others Supreme Court’s directives and guidelines relating to torture and custodial violence to the government are described below:
1) No police officer shall arrest a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Power Act, 1974
2) A police officer shall disclose his identity and, if demanded, shall show his identity card to the person arrested and to the person present at the time of arrest.
3) He shall record the reasons for the arrest and other particulars as mentioned in recommendation A(3)(b) in a separate register till a special diary is prescribed.
4) If he finds, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital or Government doctor for treatment and shall obtain a certificate from the attending doctor.
5) He shall furnish the reasons for arrest to the person arrested within three hours of bringing him to the police station.
6) If the person is not arrested from his residence or place of business, he shall inform the nearest relation of the person over phone, if any or through messenger within one hour of bringing him to the police station.
7) He shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relations.
8) If the magistrate is satisfied on consideration of the reasons stated in the forwarding letter as to whether the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the magistrate shall pass an order for further detention in jail. Otherwise, he shall release the person forthwith.
9) If the magistrate authorizes detention in police custody, he shall follow the recommendations contained in recommendation B(2)(c)(d) and B(3)(c)(d).
10) The police officer of the police station who arrests a person under section 54 or the Investigation Officer who takes a person in police custody or the jail, as the case may be, shall at once inform the nearest magistrate as recommendation B(3)(e) of the death of any person who dies in custody.
5.1 Ain o Salish Kendra (ASK) AND Bangladesh Legal Aid and Services Trust v. Bangladesh
In Ain o Salish Kendra (ASK) and Bangladesh Legal Aid and Services Trust v. Bangladesh two human rights organizations challenged the manner of detention of Shaibal Saha Partha, who had been arrested allegedly for sending an email death threat to the leader of the opposition, Sheik Hasina. Partha was apprehended by plainclothes police and held incommunicado for five days, until he was finally produced before Dhanmondi police station on 29 August, 2004, when an FIR (in case No. 61 (8) 04, Dhanmondi Police Station) was lodged against him. He was twice remanded to police custody. During this time, he was ‘shown arrested’ in the 21 August ‘grenade attack’ case (Motijheel Police Station Case No 97(8)04 dated 22.8.2004) and taken into remand for the third time, this time with the CID.
At this stage, a writ petition was filed by partha’s father, ASK and BLAST before High Court seeking Partha’s production before the Court, and an order to stay any remand orders against him. The CID then produced Partha in Court on 20 September, 2004, where he was questioned by the judges. The High Court Division Bench comprising Justice Nazrul Islam Chowdhury and Justice Mir Hasmat Ali directed the government not to take him into futher remand and on completion of the current remand to take all possible steps to administer treatment to the accused in Bangabandhu SheikhMujibMedicialUniversityHospital. The Court ordered the government not to subject Partha to physical torture of any kind in course of the ongoing remand as envisaged under clauses Article 35(4) and (5) of the constitution.
5.2 Torture of Rang Lai Mro
Rang Lai Mro, thye head of the indigenous Mro community in the CHT, and a Union Porishod Chairman was arrested in February 2007 and held in Chittagong District jail. He was charged with possessing a pistol without a license. Four month later he was sentenced to 17 years imprisonment for the offence, though his lawyer’s informed the court that his pistol was licensed.
After his arrest he was, reportedly, severely beaten by army officers at the local army headquarters, Bandarban Cantonment. The incident of torture was never investigated. He was treated in Bandarban GeneralHospital, where doctors diagnosed a heart attack. He was sent back to jail without appropriate medical treatment. In October 2007 his health further deteriorated, and the doctors advised that he handed treatment in specialized hospital. But he was once again send back to jail, where his health deteriorated and he was at risk of a heart attack.
The Government has transferred over a dozen prisoners needing special attention to well-equipped hospitals this year, but Rang Lai Mro has not been one of them. Some of these prisoners have even been allowed to go abroad for treatment. On 12 February five organization and prominent citizens wrote an urgent appeal to the Chief Advisor of CTG to take necessary action to ensure appropriate and prompt medical treatment for Rang Lai Mro. They also urged him to review the case, as they believed it involved a serious miscarriage of justice, and in particular to review the issuance of the sanction order in this case, and to ensure his speedy release.
6.1.1. Arranging training for police and magistrates
In D. K. Basu’s case the Supreme Court of India stressed on the training and orientation of police as to maintenance of human rights of the people not to violate them. The Court held that attention is required to be paid “to properly develop culture, training and orientation of the police force consistent with basic human values. The police needs to be infused with basic human values and made sensitive to the constitutional ethos.”
In the same judgment, the Court also blamed trial courts and High Courts for exhibition of “a total lack of sensitivity and a ‘could not care less’ altitude in appreciating the evidence on the record and thereby condoning the barbarous third-degree methods which are still being used at some police stations, despite being illegal.” The court continued that “the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, often results in miscarriage of justice and makes the justice delivery system a suspect. In the ultimate analysis the society suffers and a criminal gets encouraged.”
The Court suggested the lower courts to “have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than narrow technical approach.” To achieve the above, the magistrates of trial courts need to be properly trained as to acceptance of evidence and examination of case diary, letter of forwarding, medical examination reports etc. prescribed by the Supreme Court.
6.1.2. Providing police with necessary technology and logistics
There is no denying the fact that our police lack up-to-date technology for conducting investigations; whereas the criminals have occupied latest technology to conceal their crime records. In developed countries police have been armed with better technologies than the criminals. Use of cutting edges technologies such as DNA test, pathological test etc. makes investigation easier. In our country, getting a medical report of a suspect is often a very difficult job. In addition, our police also lack logistic support, police may be constrained to resort to torture in police custody to prove a case.
6.1.3. Amending laws as directed by the Supreme Court
The government needs to take initiatives to amend the laws to reflect the Supreme Court directives and guidelines. Despite the fact as to whether procedural law can be amended following decision of the High Court exercising writ jurisdiction, it is better for the government to realise the need to make necessary amendments in the age-old laws taking the ground realities into account.
6.1.4.. Forming a national committee
With a view to ensuring transparency and accountability of the police, a national scommittee with representations from civil society, registered rights groups, professionals and journalists need to be constituted to monitor police activities and implementation of the Supreme Court directions. Sub-committees at district and Upazilla level also need to be formed. The members of these committees should be allowed to visit police stations and examine custodial records.
6.1.5 Pursuing awareness campaigns by the government, media and NGOs
Government agencies, rights groups, electronic and print media need to come forward to raise awareness of the people about basic human rights and required police behaviour to be accorded to the arrestees as well as general public. The awareness materials should be produced in simple and non-technical languages and expressions so that people can easily understand the same. Fundamental rights of the people need to be including in the school texts and the teachers should be trained accordingly.
6.1.6 Establishing a legal aid clinic in few police stations on pilot basis
The Constitution and the Cr.P.C require that an arrestee shall not be deprived of consulting and being defended by a lawyer of his choice. Unfortunately, there is hardly any opportunity for consulting a lawyer by an arrestee, especially in rural areas, due to non-availability of lawyers, or lack of awareness or resources. BLAST’s research reveals the most of the arrested persons under Section 54 of the Cr.P.C and Metropolitan Ordinance are poor, indigent and helpless people. These people are not aware of their constitutional rights to consult and being defended by a lawyer, neither do they have the necessary resources to hire a lawyer. To mitigate this real problem, the government may establish, or allow the NGOs to establish, legal aid clinics will assist the poor and indigent people in the enforcement of their constitutional rights. Supervision and monitoring by lawyers would also ensure transparency in police behaviour. Initially, few police stations may be included under the legal aid programme on a pilot basis. If it achieves the expected goals the same may be replicated throughout the country.
6.1.7. Initiating prisons run by private entities, particularly for juvenile, women and other inmates convicted of petty crimes
Prisons run by private entities is quite well-known. In many countries, private prison systems have been adopted. Given that government lacks necessary resources to develop modern prison infrastructure, private sector may be encouraged to run prisons, particularly for juvenile, women and other inmates convicted of petty crimes. Government can regulate the performance of those privately run prisons.
6.1.8. Restoring people’s trust in police
Police is one of the most important public institutions of any nation. We cannot think of peaceful substance without an efficient and reasonable police force. It is not necessary that every person will always need assistance of police in his day to day life. However, in the absence of police a total anarchy will let lose upon us. We have witnessed the instances of looting during the fall of Saddam regime in Iraq. In the absence of law enforcement agencies, the looters just ran berserk on people’s property. Therefore, police, directly or indirectly, is part and parcel of our life and their contribution in maintaining law and order cannot be overlooked and ignored. We can just take personal comfort by blaming police for their misdeed. However, the problem is not remedied in doing so. We need to acknowledge the positive role played by police to ensure safety and security for all of us. The civil society, people’s representatives, rights groups and media need to come forward to scrutinize police activities and extend support where applicable. There is no room for the police as well to segregate themselves from the people. They have to realised that they are public servants and accountable to the public. They are meant to ensure public security within the limits prescribed by law. Realising the necessity of interaction between police and people, the police act requires police to work with people’s representatives and community police during investigation of crimes would be effective and efficient resulting in the overall improvement of law and order situation.
6.1.9. Judiciary and administration need to be free from corruption
Likewise police, lower courts and government administration are also blamed of corruption. Police cannot continue with corrupt practices alone unless the judiciary and administration abet such practice. Government needs to look into the matter seriously because if corruption in judiciary and administration remains intact, police cannot be expected to become fair and transparent.
6.1.10. Police should not be used for political motives
The Government should refrain from using the police for the achievement of political motives. If the government continues to do so, it will be unable to regulate police; on the other hand, will become dependent on them and people will continue to suffer at the hands of their protector.
6.2. Concluding remarks
Torture is expressly prohibited by the Constitution of Bangladesh. One of the fundamental rights guaranteed by this Constitution is that “no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. Nevertheless, domestic laws of Bangladesh fall far below the international obligation under Article 4 of CAT to which the country has committed itself. Therefore, it is recommended that torture should be designed and defined as a specific crime of the utmost gravity in national legislation. The offence of torture should be characterized as a specific and separate offence; to subsume torture within a broader, more generic offence (e.g. assault, hurt, grievous hurt, criminal intimidation etc.) fails to recognize the particular odious nature of the crime and frustrates the discharge of obligation of a state under the CAT. Without collaborative efforts from all quarters, this immense problem cannot be solved. However, the first step should be taken by the government and the police themselves. They should initiate necessary reforms within the institutions and meet the existing challenges through developing better relationship with the people thereby restoring their confidence in the law enforcement agencies.