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October 10, 2004 

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Your Advocate

Q: We frequently hear about privilege against self-incrimination. No one can be compelled to make any statement that is self-incriminating. Nor is he bound to make any statement, which tends to incriminate him. In our country police is found to compel accused persons to make confessions. And custodial torture is now an open secret. Judges, lawyers, accused himself, his relatives and all others are fully aware why police pray for remand and what do they do taking an accused in remand. A boy of good and stout health is returned half-dead with apparent marks of violence on his person. Magistrates are not found to take judicial notice of the battered physical condition of the accused nor do the lawyers and others mind much about it. As if the system is going indefinitely with the tacit approval of the society, my questions are a) do the law approve such mechanism for detection of crime? b) if not what is the remedy in case of torture by police? c) is there any safeguard against torture? d) can police compel anyone to disclose anything ? e) can anybody be compelled to testify that tend to incriminate him? Thank you in anticipation.
Tanvir Ahmed

Your Advocate: The questions you have raised cannot but trouble the mind of any conscious man or woman in the society. The legal answers are not far to seek. But the unwholesome practice is going on and the whole society seems to have resigned to it. Very recently we saw some outcry from different quarters against custodial death, torture and inhuman treatments.

Law does not approve inhuman or degrading treatment of any kind. Life and liberty of an individual being most fundamental of fundamental rights are strictly guaranteed by our constitution. Articles 35(5) of the Constitution spell out in specific terms- "No person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment". So there can be no law that sanctions or purports to sanction inhuman or degrading treatment by police or any other agency for any purpose whatsoever. I have noticed some reservations in many in matters of saying final words against torture as a means of squeezing information. According to them without some degree of torture detection of crimes and criminals would be difficult. This view cannot be approved for the simple reason that physical and/or mental torture offends against our Constitutional mandate and international standard set for holding back every treatment on human scale. Experience shows torture does more harms than good both in terms of protecting innocent people and furthering cause of justice. Police must find some other means for detection of crime and criminals.

There are remedies against torture. Police are as amenable to law as other people. Against custodial death cases are recorded in the PS automatically. But problem lies in torture during police custody either taken into by remand or by arrest. Traces of torture may not be apparently clear but inwardly the victim might have sustained serious injury to the detriment of his mind and health. This being criminal offence criminal cases may be filed against the delinquent police officer under the appropriate sections of law. Lawsuit for damages may be filed and side by side departmental proceedings may also follow. The most effective check against custodial torture would be to change our extra-legal culture to facilitate, observe through and give it a go-by. The engaged lawyer at least, has a duty to complain to the Magistrate in relation of the case against torture on his/her client. The court needs to take serious notice of it and call for an explanation from the police officer responsible for the crime and thereafter make appropriate order according as the circumstances demand. At the same time police need be brought back to compliance of law by changing their traditional attitude to and practices of pumping put information by physical force. The change may be effected by higher training of police, oriented to respect for human dignity, life and personal liberty guaranteed by our Constitution and international instruments of human rights. This depends by and large upon what we really want. If there is a political will to eradicate this cruel and inhuman mechanism to be used by one man against another this is not difficult. And in that case the question of safeguard against torture will automatically lose significance.

The third and the fourth questions are related to right to silence and the power of police and court to compel someone to answer. Right to silence, in our country, is only available to accused. He/she is not bound to make self- incriminating statements. This lends support from Article 35(4) of our Constitution which reads- "No person accused of any offence shall be compelled to be a witness against himself." But a witness is not exempted from answering the questions on the ground that it may incriminate him or the answer will expose him to penalty. Of course law provides a kind of protection to the witness so compelled. Law says that such answer shall not subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except for perjury.

A police officer can arrest any person who in his presence has committed or accused of committing a non-cognizable offence refuses to give his name and residence or gives the name or residence which the officer has reason to believe to be false. Otherwise police do not have any legal mechanism for coercion intended to force any person to disclose facts believed to be in his knowledge.

Your Advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.

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