What’s the point then? | The Daily Star
12:00 AM, February 14, 2020 / LAST MODIFIED: 03:42 AM, February 14, 2020

What’s the point then?

SC expresses disappointment at non-implementation of 2003 HC directives over arbitrary arrests on suspicion, torture on remand

The Supreme Court yesterday expressed disappointment that the 2003 High Court verdict directing police to refrain from making arbitrary arrests on suspicion and torturing people on remand has not been executed in 17 years.

"What is the point of delivering verdicts if the directives are not followed?" the Appellate Division of the apex court asked.

The SC was hearing a review petition filed by the government against its 2016 judgement that upheld the 2003 HC verdict against the arbitrary exercise of power by law enforcers using several sections of the Code of Criminal Procedure (CrPC), including section 54.

The top court yesterday said people could be arrested under section 54 of the CrPC and it might happen to anyone's family members. And then the person may never return.

"Will the state take its responsibility?" it asked, saying that incidents of disappearance were alarming.

At one stage of the proceeding Attorney General Mahbubey Alam sought adjournment of the hearing. The six-member bench of the Appellate Division headed by Chief Justice Syed Mahmud Hossain then adjourned the  chearing until April 16.

The SC, however, asked the government to specifically mention in the review petition the inconsistences of its directives and observations with relevant laws by April 16.

According to rights body Odhikar, 553 people reportedly disappeared between 2009 and 2019. Bodies of 74 were found later, 312 returned alive while 167 are still missing.

According to another rights body, Ain o Salish Kendra, as many as 350 people reportedly fell victim to enforced disappearance between 2014 and 2019.

At yesterday's hearing, Mahbubey Alam assisted by Deputy Attorney General Bishwajit Debnath represented the government while Md Idrisur Rahman and Barrister Sara Hossain argued for the petitioners who sought SC directives against the police's arbitrary use of power when it comes to arrest, detention and remand.

The AG later told The Daily Star that the Appellate Division made some comments that were not part of the judicial proceedings.

After the SC passed the adjournment order, Alam told reporters at his office that the government sought review of the SC verdict so that section 54 of the CrPC could be applied against suspects, including militants, rapists and drug traders.

The HC delivered its verdict on April 7, 2003, responding to a writ petition filed by a group of human rights organisations and individuals after the death of university student Shamim Reza Rubel in police custody on July 23, 1998.

In the judgment, the HC asked the government to amend some provisions of the CrPC of 1898 that contradicted the constitution. Those provisions gave police controversial powers.

It outlined some recommendations for making changes to the provisions and also proposed amending three other laws in order to safeguard people's liberty and fundamental rights guaranteed by the constitution. The laws are Penal Code 1860, Police Act 1861, and Evidence Act 1872.

The HC verdict said the amendments were required to curb the arbitrary use of powers by police and magistrates in relation to arrest and remand and to take necessary steps in case of custodial deaths.

In the verdict, the HC also issued a 15-point directive and asked the government to comply with it immediately to stop police from making arbitrary arrests on suspicion and torturing arrestees on remand.

But the then BNP-led government opted to file an appeal against the verdict, and the Awami League-led government has followed suit.

On May 24, 2016, the Appellate Division dismissed the appeal and upheld the HC verdict.

The apex court released the full text of its verdict on the appeal on November 10, 2016, in which it issued a 19-point guideline for police, magistrates and judges to stop arbitrary arrests on suspicion and torturing arrestees on remand.

To deny citizens their rights guaranteed by the constitution is to disrespect the country's independence and what it stands for, it said.

In the full text of that verdict, the SC came up with the guidelines and some observations on the arbitrary use of powers by law enforcement agencies using certain sections of the CrPC including the 54.

Section 54, seen as a nefarious provision, empowers police to arrest anyone on mere suspicion. Under several other sections of the criminal law, arrestees are placed on remand and detained in violation of their fundamental rights to protection of life and liberty, it said.

The SC ordered police to use this power judiciously, curtailing police's authority to arrest anyone under this section for the purpose of detaining them under the Special Powers Act.

The apex court also directed law enforcers to allow the detainees in question to consult lawyers of their choice or to meet their closest relatives if they so desire.

"The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report disclose that the arrest has been made for the purpose of putting the arrestee in the preventive detention," the full text read.

The SC also said, "If the magistrate has reason to believe that any member of law enforcing agency or any officer who has legal authority to commit a person in confinement has acted contrary to law the magistrate shall proceed against such officer under section 220 of the Penal Code".

The government filed a petition with the SC in 2017 seeking review of its judgement. 

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