Police's preposterous plea
Police has come up with a plea. Although one officer articulated it at the first ever 'welfare parade' attended by the Prime Minister of the State; there is little doubt that the senior leadership of the police, if not the institution as a whole, subscribes to the idea. The appeal has caused deep concern among sections of the citizenry who seek rule of law to prevail on the land.
So, what was the plea about? Along with genuine demands for higher salary, better work and living conditions, higher number of sets of uniforms, the law enforcers have demanded scrapping of the landmark Torture and Custodial Death (Prevention) Act, 2013 (henceforth custodial torture law). The Act was put in place to regulate and monitor their conduct. The framing of this Act was in conformity with Bangladesh's commitment under the Convention Against Torture (CAT) that the country had ratified in October 2013. It also became a necessity to enforce the State's guarantee to its citizens that: "No person shall be subjected to torture or to cruel, inhumane or degrading punishment or treatment" (Article 35(5)).
Any conscientious citizen would acknowledge the pressing need for reining in elements, hopefully very small, among law enforcement agencies who abuse and mete out harsh and inhumane treatment to the detainees in their custody. The law in question is an important instrument for the victims of abuse and their families to seek redress. The lawmakers hoped that it would have a deterring effect on the rogue elements and thus protect the rights of detainees in custody.
In the last two months, the Jibon Ara (Cox's Bazar), Jafar Alam (Swandip) and Romel Chakma (Rangamati) cases clearly demonstrate that the practice of abuse of detainees in custody has far from waned. Instead of taking action against the violators and engaging in soul searching on how to improve the application of the law, the police administration appears to be endorsing such vile acts and thus, in effect, encouraging the perpetrators.
At the 'welfare parade' held on January 23, 2017 at Rajarbagh, Dhaka, the additional superintendent of police (Ad SP) of Comilla raised the demand that the 2013 law should be revoked to "protect peace, stability and security of the country" and "to inspire the police". Press reports inform that the gathering of several hundred members, ranking from constable to inspector general of police, clapped, supporting the demand. The Ad SP further argued that the 2013 Act's stipulated provision against mental torture was encouraging many people to file 'false cases' against police.
Instead of rebuking and disciplining the concerned officer and ordering him to comply with the law, the Home Minister told the gathering that he assumed "all the demands raised were legitimate". One wonders at that moment whether it crossed the mind of the home boss that he was one of the MPs who legislated the very Act that his subordinates were demanding annulment of.
The Ad SP went to say that recently a Supreme Court order allowing judicial magistrates to receive cases against law enforcers on charge of custodial torture was curbing the rights of the police under other existing laws. Endorsing the observation of the young man, the inspector general of police requested the prime minister to examine whether there was any scope of a review of the apex court's order.
This was not the first time that the custodial torture law has been subjected to contemptuous criticism by law enforcers. In March 2015, the Police Headquarters put forward the idea of amendment of the custodial torture law, 2013. In a letter to the Home Ministry, the police headquarters proposed that amendment be made to the Act to exclude the RAB, as well as the Criminal Investigation Department, Special Branch and Detective Branch from the definition of the law enforcement agency altogether, from responsibility and prosecution under the Act. Those are the very actors frequently alleged to resort to torture.
The proposal further suggested limiting the definition of torture to "acts or omissions which cause physical pain to any person for the purpose of obtaining information or confession". The other purposes – punishment, intimidation, coercion and discrimination – as well as causing "mental pain" were proposed to be repealed.
The two proposed amendments were in contravention with Article 1 of the CAT that provides comprehensive definition of torture binding upon all parties to the Convention. Article 1 of the Convention clearly defines the perpetrator as being "public officials or other persons acting in an official capacity", and includes any branch of police, investigating body as well as the military. Bangladesh as state-party cannot absolve from such universal principles.
The police further proposed to amend the complaint and investigation procedures (Section 7 of the Act). The proposal suggests that complaints should be lodged before the police or a magistrate instead of court. This would entail the petition to be filed with the very entity that is accused of committing torture. This is against the principle of natural justice. It also contradicts Article 12 of CAT that stipulates "impartial and independent investigations" into torture allegations.
The police also suggested the repeal of Section 12 of the Act. It provides that "a state of war, threat of war, internal political instability, public emergency; or an order of superior officer or a public authority" shall not be an excuse for torture. Readers may note it was precisely on those grounds that the Ad SP had premised his demand for revocation.
Section 12 has been in compliance of Articles 2 and 3 of the CAT that made prohibition of torture both absolute and non-derogable. In other words, nothing can justify torture under any circumstances including war, emergency or superior orders.
Despite having an appropriate legal framework, Bangladesh has a long way to go in containing torture, let alone eliminating the practice. As the country's criminal justice system has overwhelmingly become dependent on confessions of the accused, the practice of torture has become endemic. Commitment of the political leadership, accountability and professionalism of members of law enforcement agencies, and application of forensic methods are necessary to bring about change. No less important is the sustained engagement of a committed unbiased civil society and upholders of the true spirit of the War of Liberation in demanding such a change.
The writer teaches at the University of Dhaka.
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