Dhaka Courier

Chipping away at the edifice

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Though Bangladesh has been able to play a stabilising role on many fronts, there are still many things to achieve to make it a fertile ground for the inalienable rights of all human beings to flourish and thrive. The people of Bangladesh always appreciate a democratic system that will ensure their basic rights alongside building the foundation for a prosperous country.

And yet that was the scenario that played out last September 10, with the pronouncement of the first court verdict in Bangladesh to hand down lengthy prison terms to policemen for custodial torture and death.

It was the first-ever verdict under the country’s Torture and Custodial Death (Prevention) Act of sub-inspectors Qamruzzaman Mintu and Rashedul Islam. Their informants were identified only as Sumon and Russell. Jahidur and Sumon are in jail, Rashedul is on bail and Qamruzzaman and Russell are on the run.

In their efforts to hush up facts, police usually attribute custodial deaths to other reasons such as suicide, underlying health conditions and other causes that could be cooked up, even though these happen just because of torture. And many such incidents go unreported unless there is any public outcry.

In the case of any custodial death and abuse, the government needs to see through the incidents with fair probes so that the law enforces cannot stage any drama with their fabricated stories, damaging the country’s image abroad.

How it happened

A police team, led by Jahidur, picked up brothers Imtiaz Hossain Rocky and Ishtiaque Hossain Jonny on February 7, 2014, with some others from a pre-wedding event in Pallabi area. They were tortured outside Pallabi Police Station for hours and Jonny lost consciousness. He died from his injuries in a hospital.

His brother filed a case against the five on August 7, 2014, and didn’t back off despite threats and pressure from the accused. “We are satisfied with the verdict. Justice has been served,” a tearful Rocky told reporters after the verdict.

Defence lawyer Faruk Ahmed rejected the verdict and alleged that the accused were sentenced based on “false accusations.” He claimed that the victim died not from torture but from a heart attack due to loud music at the pre-wedding event.

Rights campaigners have lauded the verdict as a “historic landmark” to curb custodial torture and deaths and the culture of impunity.

Dhaka-based rights group Odhikar recorded 1,344 cases of deaths in jail in Bangladesh from 2001-19. It documented 646 cases of custodial torture by various law enforcement agencies from 2004-19.

Rights to life and liberty, freedom from torture or cruel, degrading treatment or punishment are guaranteed as fundamental rights in the Constitution of Bangladesh. Any form of torture or illegal punishment, infringing one’s rights to life and liberty signifies a gross violation of fundamental human rights. Article 3 of the Universal Human Rights Declaration (UDHR) provides that, ‘everyone has the right to life, liberty and security of person.’ Article 5 of UDHR provides that, ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1966 also set out that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Legal Eagle

In Articles 31, 32 & 35(5) of the Constitution of Bangladesh, the rights to life and liberty, and freedom from torture, or cruel, inhuman or degrading treatment or punishment are guarantee for Bangladeshi citizens. Thus, both under national and international legal instruments, this is recognized as a fundamental human right of the citizens which cannot be suspended on ground of emergency, national security or any other reasons. These rights are also known as peremptory norms of international law or jus cogens norms as non-derogable rights. These rights cannot be compromised (or reduced) and inalienable rights, which cannot be taken away.

On 10 December 1984, the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world. Bangladesh became a member state to CAT on 5th October 1998. Article 4 of CAT provides that “each state party to the Convention shall ensure all acts of torture are offences under its criminal law and shall ensure that the relevant penalties sufficiently reflect the gravity of the offences in question.”

The abuse of powers of arresting without warrant under section 54 and placing the accused in police custody under section 167 of CrPC has resulted in violations of fundamental rights to fair trial, freedom from torture or cruel, inhuman or degrading treatment. The High Court Division (HCD), in BLAST and others vs. Bangladesh and others case [55 DLR (2003) 363], opined these sections are to some extent inconsistent with the Constitution of Bangladesh and require amendments. In 2003, the HCD held in this Judgment in view of Article 35 of the Constitution, “any information which is obtained or extorted by taking an accused on remand and by applying torture, the same information cannot be considered as evidence and cannot be used against him.”

The judgment also made 15 key recommendations to amend the Criminal Code of Procedure 1898 so as to make it more consistent with the Constitution. The said 15 directives to safeguard against abuse of the powers of arrest and interrogation in custodial detention, including that authorities must take permission from a magistrate to conduct interrogation in remand and that it must take place in a room with glass walls inside the prison, with lawyers and relatives allowed to monitor nearby. Moreover, authorities must inform the person of the reason for arrest within three hours and ensure that a relative or friend of the detained person is informed within 12 hours of the arrest about the time, place of arrest and place of detention.

In releasing the full text of its verdict on the appeal on November 10, 2016, the Appellate Division of SC issued 19-point guidelines for police, magistrates and judges to stop arbitrary arrests on suspicion and torturing arrestees on remand. Indian Supreme Court observed in the case of D. K. Basu Vs. State of West Bengal [(1997) 1 SCC 434] that “custodial death is one of the worst crimes in a civilized society governed by the rule of law”.

A recent review of deaths in custody revealed a significant increase in the number of people dying in police custody over the last few years in the country. From 2014 to March, 2018, a total of 285 people were reported to have died in custody, including 119 convicts and 166 under-trial prisoners, according to Ain o Salish Kendra. In a report of Odhikar, a human rights forum, informs that at least 60 persons died in custody in 2019. Between 2009 and 2019, the annual figure of victims of custodial deaths hovered within the 50 to 63 range. It registered a steep rise to 105 in 2011 and 81 in 2018.

However to address these human rights violations, the “Torture and Custodial Death (Prevention) Act, 2013” has been enacted which was also facilitated by Bangladesh’s obligation under CAT to enact a law criminalising all acts of torture. The Act provides a legal definition of ‘torture’ and ‘custodial death’ along with effective victim protection mechanisms. The Act 2013 in its section 2 (6) provided specific criteria of “torture” like extorting any information or confession, punishing or intimidating any suspected person or offender or other discrimination etc. According to section 2 (7) “Custodial Death” means death of any person in the custody of any government official. The Act also provides details about provisions for making a complaint, the investigation procedure and sentencing provisions.

Under section 4(1) (c) on receiving complains of torture the competent court will immediately record the complainant’s statement in writing and then the court will order an examination of the body by a registered doctor of the same sex of the complainant. The doctor will prepare a report within 24 hours under section 4(2) on the recognition of wounds and signs of torture as well as the approximate time of the alleged torture. On receipt of complaint and such report the court will file a case accordingly. Regarding investigation, this Act in its section 5(5) provides that a police officer whose rank is not less than that of the person accused will be engaged by the Court to conduct the investigation. Here if any argument arises concerning the compromise of neutrality and if it would be impossible for the police to conduct a proper investigation then under section 5(2), upon satisfaction, the court can order judicial investigation. The Act has provisions of at least five years imprisonment and a Tk 25,000 fine while custodial death due to torture is punishable with life imprisonment and a fine of Tk 100,000.

The Act primarily entrusts the police for investigation but here the neutrality may be highly compromised where investigation is held by a police against another police. Well it provides for judicial investigation in this situation but it is not mandatory. The severity of the punishments provided for offences under this Act does not reflect those for similar offences under the Penal Code 1860. The punishments provided for by the Act are limited to imprisonment and compensation, other departmental proceedings such as ‘suspension and dismissal from his/her job’ are not included. Further, the Act set out the provisions to compensate to the victim/aggrieved persons, but it fails to prescribe the specific procedure for the compensation to be paid. Furthermore, the law does not provide for the death penalty for death. But when a gruesome custodial murder or crossfire deaths what would be the sentence.

The Constitution of Bangladesh and criminal law absolutely forbid in all circumstances, any actions amounting to torture. Section 9 (5) of the Women & Children Repression Prevention Act-2000 postulates the punishment of custodial rape and torture by law enforcement agency against any woman and child and the punishment for custodial negligence is up to ten years and fine. Section 29 of the Police Act 1861 and section 48 of the Dhaka Metropolitan Police Ordinance, 1976 also stated against torture. Article 35(4) of the Constitution of Bangladesh has stated that “no person accused of any offence shall be compelled to be a witness against himself.”

The Penal Code 1860 applicable in Bangladesh makes clear that physical and psychological ill-treatment of the accused by law enforcement officials is impermissible and punishable. Causing of “hurt” or “grievous hurt” by public servants to obtain confessions or to compel restoration of property carry sentences up to seven and ten years imprisonment respectively under section 330 and 311. Sections 162,163,172 and 173 of the Code of Criminal procedure, 1898; read with sections 24, 25 and 26 of the Evidence Act, 1872 provide rules of conduct and procedure to prevent torture of persons under interrogation. Section 26 of the Evidence Act also excludes confessions made by a person in Police custody unless made in the immediate presence of a magistrate. It is to be read with section 164 and 364 of the CrPC 1898.

To build a violence- free society, a public awareness campaign needs to be held and orientation on its provisions is needed for judges, lawyers, members of the law enforcement agencies and human rights activists. The enforcement of the Prevention of the Custodial Torture & Death Act 2013 is essential to control and make accountable of the concerned law enforcement agency.

Defining Torture and Custodial Death

The definition of torture stated in the Act, limiting the definition of torture to only physical or mental pain pursuant to obtaining information and confession, is deficient in capturing the multiple and complex aspects of torture. The definition fails to include the physical or mental pain experienced by those who are imprisoned awaiting trial or by remand order of Court; the definition is absent on direct or indirect physical or mental pain perpetrated by a person or government official as a manifestation of their power. The definition also fails to encompass cruel, inhuman and degrading treatment as torture specifically. Moreover, it fails to reflect an international standard on the definition of torture provided in the United Nations Convention against Torture 1984 (CAT). CAT defines torture as Follows:  ‘....the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining 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 acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’

Definitional ambiguity, in relation to ‘mental torture’, ‘custody’ and other elements in the Act, may inhibit the smooth implementation of the Act. The definitions of those terms should therefore be clarified. During consultations, it was proposed that private individuals and institutions may also be included in the definition of torture and custodial death. Again, the gender-based violence including rape, sexual harassment as a form of torture is missing from the Act. (Source: BLAST)

Legal opinion under 'Legal Eagle' by Md Zakir Hossain, member of Bangladesh Judicial Service and Senior Judicial Magistrate of Feni.  

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