• Saturday, November 22, 2014

Putting the Torture and Custodial Death (Prevention) Act to the test

Anirudha Nagar

What is particularly disturbing about Sub-Inspector Jahidur Rahman Khan's alleged torturing to death of a garment-waste trader in Mirpur last week is that it may not have been his first. In February this year, he was implicated in the custodial death of a 28-year-old man while stationed at Pallabi Police Station. Although the details of that incident are unclear, we know he was only suspended for his alleged involvement. This time, the police have taken the allegations more seriously; they have arrested Khan and filed a case under the Torture and Custodial Death (Prevention) Act, 2013. With police torture being widespread in Bangladesh, the strengths and weaknesses of this law merit consideration. The aim of any torture prevention legal regime must be to deter future acts through credible investigations and prosecutions, and by providing victims the right to reparations. Khan's case is reportedly the first under the Act, and promises to put it to the test.
A long-awaited Act
In November 2013, amidst the violent clashes over the upcoming elections, the Bangladesh Parliament took the much-awaited step of passing torture prevention legislation. This came as a welcome surprise. Although Bangladesh ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1998, there was no attempt to bring in domestic legislation for more than a decade. A 2009 Private Member's Bill to comply with the Convention was cast into cold storage. In this time, Bangladesh also ignored its reporting obligations to the United Nations Committee set up to monitor compliance with CAT.
Prior to the Act, the legal regime was lacking. The Constitution expressly prohibits torture and acts amounting to torture are already criminalised by some offences. However, these offences do not cover the full range of acts that may constitute torture, nor do they provide for an enforceable right to reparations. A comprehensive law was sorely needed. The Act creates two core offences: firstly, torture by a law enforcement officer, punishable with at least 5 years imprisonment and a Tk. 25,000 fine, and secondly, custodial death due to torture, punishable with life imprisonment and a Tk. 100,000 fine. The Act applies to all law enforcement agencies -- not just the police -- and renders inadmissible various excuses for torture. As a result, a police officer cannot justify torture on the basis that it was required due to internal political unrest or a superior's orders.
Safeguards for investigation, victim protection and compensation
The Act provides for easy avenues of complaint and prompt, impartial investigations. If a person brought before a court complains of torture, the court will immediately record the statement of the person, send a copy to the police and direct that a case be registered. The police must then complete the investigation within 3 months. Encouragingly, the Act acknowledges the inherent bias involved in the police investigating one of its own. It explicitly enables an aggrieved person to apply to the court to contend that a fair investigation by the police is not possible. If satisfied, the court may order a judicial investigation.
Important safeguards are also included at the trial stage. Victims or their families may apply to the court for protection measures, including having the case transferred to another court or prohibiting the accused from entering a particular area in the interests of safety. If a person is convicted, monetary compensation is available to victims or their families: Tk. 25,000 for the offence of torture and Tk. 200,000 for death as a result of torture, to be paid by the convicted person.
Retaining sanction for prosecution
While the Act treats the foregoing issues with remarkable consideration, it does not address the main impediment to prosecutions against police officers: Section 197 of the Code of Criminal Procedure. This section prohibits prosecutions against public officials without the government's prior sanction if the offence is committed in an official capacity. The logic underlying Section 197 is to ensure that responsible public servants are protected from motivated, vexatious and frivolous criminal proceedings in the discharge of their official duties. In practice, however, while sanction is insisted upon, it is seldom granted. This provision has served to obstruct access to justice rather than facilitate it. In its failure to dislodge Section 197 for the prosecution of torture, the Act risks denying victims the right to an effective legal remedy, central to CAT.
 Neighbouring India fares no better, and is lagging behind Bangladesh with no torture prevention legislation in place. Like Bangladesh, the “protective” net of Section 197 in India has become a shield to police accountability, with sanction rarely granted in cases alleging torture. There was a small breakthrough in December 2010. A Select Committee of India's Upper House of Parliament -- the Rajya Sabha -- published a report on the Prevention of Torture Bill , 2010, recognising the need to strike a balance between protection and accountability. In the face of stiff political resistance against outright removal of the sanction requirement, the Committee proposed a deeming provision: if the government has not acted on a sanction request within three months, sanction would be deemed to be given. This may prevent a government from frustrating prosecutions by simply refusing to act on a sanction request. The Committee's report has not seen the light of day since. However, such a provision might be one way of chipping away at this impediment to prosecuting police torture in the Bangladesh context.  
We should all closely follow the investigation and prosecution of Jahidur Rahman Khan. Although the Torture and Custodial Death (Prevention) Act 2013 was celebrated as the first concrete step on the part of the government towards addressing impunity for police torture and custodial death, the true test will be in its implementation. Will cases be promptly investigated and prosecuted? Or will the government continue to use Section 197 to shield police officers who torture from accountability?


The writer is Programme Officer, Police Reform, Commonwealth Human Rights Initiative.

Published: 12:00 am Sunday, August 03, 2014

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