Reflections on Torture: Actions
and the Law
Saira Rahman Khan
(…from previous issue)
In order to reduce the occurrences of torture and other degrading treatment, on 7 April 2003, the High Court Division of the Supreme Court of Bangladesh ordered the Government to amend the law relating to interrogation of people remanded in custody. The court also directed that glass-partitioned rooms in jails be constructed for interrogation purposes and until such rooms are constructed, arrestees are to be interrogated at the jail gate in the presence of relatives and lawyers. The decision came in the 2003 case of the Bangladesh Legal Aid and Services Trust (BLAST) and Others Vs. Bangladesh and Others, where several human rights and legal aid, non government organisations filed a writ petition in the High Court challenging the abuse of police powers to arrest without warrant under Section 54 of the Code of Criminal Procedure, 1898 and the abuse of powers regarding taking the accused into remand (police custody) under Section 167 of the Code. The petitioners referred to recent incidents of gross abuse of power, including allegations of custodial death, torture and inhuman treatment, in remand after arrest under Section 54 of the Code of 1898. To date, several years since the judgment, no such glass-partitioned rooms have yet been constructed and torture and other degrading forms of treatment are still meted out to an accused in remand. The petitioners argued that these provisions allowed for arbitrary exercise of power and that the Court should enunciate safeguards to prevent or curtail police abuse of powers and arbitrary actions by Magistrates, which constitute violations to several fundamental rights guaranteed under Articles 27, 31, 32, 33 and 35 of the Constitution of the People's Republic of Bangladesh.
The High Court laid down a set of fifteen guidelines with regard to exercise of powers of arrest and remand, including the following:
* No Police officer shall arrest anyone under Section 54 [of the Code of Criminal Procedure 1898] for the purpose of detention under Section 3 of the Special Powers Act, 1974
* The concerned officer shall record reasons for marks of injury, if any, on the person arrested and take him/her to nearest hospital or government doctor
* The person arrested shall be furnished with reasons of arrest within three hours of bringing him/her to the Police Station
* The person concerned must be allowed to consult a lawyer of choice or meet nearest relations
* Where the Magistrate orders detention of the person, the Officer shall interrogate the accused in a room in a jail until a room with glass wall or grille on one side within sight of lawyer or relations is constructed
* In any application for taking accused in custody for interrogation, reasons should be mentioned as recommended
* The Magistrate while authorizing detention in police custody shall follow the recommendations laid down in the judgment
* The police officer arresting under Section 54, or the Investigating Officer taking a person to custody or the jailor must inform the nearest Magistrate about the death of any person in custody in compliance with these recommendations.
The UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment (UNCAT) was ratified by the Bangladesh government in October 1998. Unfortunately, successive Bangladeshi governments have done little to prevent or prosecute acts amounting to 'torture' perpetrated by law enforcement agencies in the country, despite the Constitutional safeguard. There is, therefore, no question of compensating victims or their families or protecting witnesses to the crime. According to the internationally recognised definition of 'torture', law enforcement officers in Bangladesh 'public officials' who inflict 'severe pain' intentionally on an accused person or suspect to obtain from him a confession or acknowledgement of the commission of an offence can be said to be torturing such accused person or suspect.
Article 2 (1) of the Convention states that 'Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. The following sub-clauses state that no 'exceptional circumstances' or 'order from a superior officer or a public authority' can justify or be invoked as a justification of torture. The previous paragraphs in this paper plainly show that Bangladesh is not complying with this provision of the Convention. Instances of torture and deaths in custody occurred during the State of Emergency as well; and it has been recorded that police and other law enforcement officers have stated that they are carrying out remand and physical abuse according to the dictates of their 'superiors'.
Article 4 of the Convention provides that each State Party 'shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.' Unfortunately, in the criminal laws in Bangladesh, the term 'torture' is not mentioned anywhere and only relevant sections of 'hurt' and grievous hurt' in the Penal Code 1890 can be applied where necessary. Institution of a special section on 'torture' in the Code or passing a specific Act making 'Torture' illegal and defining it and its application would probably have more impact that the current penal provisions.
Article 11 of the Convention states that each State Party must systematically review interrogation rules, instructions, methods and practices and the arrangements present for custody and the treatment of arrested and detained persons, 'with a view to preventing any cases of torture'. Article 15 provides that the State Party must ensure that any statement that has been made as a result of torture is not invoked as evidence in court, except against the perpetrator of the torture as evidence of the torture. In Bangladesh, the measures to prevent torture as given by the High Court Division in the matter of Blast Vs. Bangladesh, were published in 2003. To date, none have been implemented in the police stations or places of custody and detainees and suspects are still questioned at the jail gate or 'interrogated' in 'remand'. Furthermore, despite the fact the guidelines for recording confessional statements are provided for the Magistrate in the prescribed forms, Magistrates are still sending people to remand and recording 'confessions' even when it is obvious that the statement-provider has been physically abused in a manner amounting to 'torture'.
Bangladesh became a member of the Human Rights Council in 2006. In its election bid for membership to the UN Human Rights Council, Bangladesh made voluntary pledges on the promotion and protection of human rights, in which it promised to "continue to cooperate with the special procedures and mechanisms of the Council with a view to further improve its human rights situations.” Bangladesh was re-elected as a member of the Human Rights Council on 12 May 2009 As a member of the Human Rights Council for a second term, the government of Bangladesh has an opportunity to break from the practices of the past and make substantial progress concerning the protection of human rights and its cooperation with the UN human rights system. However, this is not a question of development or resources only, but one of political will as well. Bangladesh must recognise the urgent necessity to transcend beyond simple ratification of instruments, and face-saving, ineffective measures at the national level. It must commit to tangible cooperation with the Human Rights Council and its mechanisms and the implementation of its obligations under international law at the national level.
(To be continued…)
The author is Associate Professor of the School of Law, BRAC University, Dhaka, Bangladesh.