Forty-four years since independence, must we remain a caricature of a dysfunctional, postcolonial state where law enforcers, whose primary role is to protect the people, is actually the very thing that ordinary citizens mistrust the most? Must we tolerate a state of affairs where those entrusted to enforce the law remain consistently above it, violating human rights, constitutional guarantees and laws of the land with all but absolute immunity? It is nothing if not embarrassing for us that, even with the reinstitution of democracy in 1991, we have failed to institute a process of holding law enforcement agencies accountable for their egregious violations, with the state, irrespective of which party is in power, resorting to repressive state apparatuses from time to time to do its “dirty bidding.” In fact, it was under so-called democratic regimes that we saw the introduction, and further consolidation of power, of an elite force with all but an official mandate to “cross” the boundaries. Things have only gone from worse to worst, so much so that we seem to have become immune to increasing incidents of “crossfires”, enforced disappearances, custodial torture and excessive use of force by law enforcers, accepting them as an inevitable, if undesired, part of our quasi-democratic existence.
This year alone, from January to September, 52 people died in jail custody – 21 of them were convicted and 31 were detained, reports Ain O Salish Kendra (ASK). The real numbers are likely to be much higher, as not all such incidents make it to the national newspapers. Let's remember that none of these people were served – nor deserved – the death sentence, and yet they met their death under the very “protection” of the state. Can we imagine the horror that were the last moments of their life, the excruciating torture they were likely subjected to, the sheer vulnerability of knowing that their pleas for mercy were falling on deaf institutional ears? And what of the families of these victims, who, in all likelihood, will never see the “killer” of their loved ones even reprimanded, much less tried? Perhaps it is easier for us to dismiss these experiences and deaths as insignificant – they were most likely criminals, we tell ourselves, thereby justifying, at least on a subconscious level, the systematic suspension of basic human rights and constitutional guarantees of people who are as much citizens of this country as we are.
And what of those who carry out such ruthless acts of torture? What protection and compassion can we expect from those who do not hesitate to hang another human being by the limbs, beating him/her senseless, sexually assaulting, even raping them, suffocating them, burning and mutilating parts of their bodies…to the point that they die? What must happen to a person's psyche that they can carry out such cruel acts and yet go back home to their families and sleep soundly as if those brutalities are no-big-deal? But let's not simply vilify these personnel as “monsters”, when it is the system itself that has created and sustained them. Individuals should be held accountable for their crimes, surely, but we must also question the system that has allowed, albeit encouraged, torture as an indispensable tactic of interrogation.
In Bangladesh, it is assumed that once arrested, unless you have political clout or sufficient wealth to save you, you will be subjected to some form of abuse, torture and ill-treatment in custody. The abhorrent practice of “remand” has institutionalised the process of extracting information through whatever means possible, including torture. Despite successive High Court rulings that laid down clear directives regarding arrest and remand in custody, including setting up rooms with glass walls in jails for interrogation, and interrogating people in the presence of their lawyers and relatives until such rooms are set up, the practice of conducting “remand” behind closed doors, under very questionable circumstances, continues unabated. There are serious allegations that many in custody are forced into confessing, at times for crimes they didn't even commit. This is a sheer miscarriage of justice, which not only destroys the falsely accused person's life, but also allows the real culprits, who might have the money or the power to manipulate the system, to carry out similar crimes in the future with immunity. It also sustains a corrupt system that crooked officials, criminals and politicians can easily take advantage of.
Following a writ petition on the arrest, torture and killing of university student Shamim Reza Rubel in police custody, the High Court, on April 7, 2003, directed that prior to sending an arrested person to remand, s/he should be examined by a doctor and the medical report should be submitted to the magistrate concerned, and that after the interrogation – which can only be carried out by the investigation officer – the accused must be produced before the magistrate. If the accused alleges that s/he was tortured, s/he must be sent to the same doctor for investigation, and if found that the accused did, indeed, sustain injuries during interrogation in custody, action would be taken against the investigation officer, irrespective of whether the accused lodges a complaint. These directives, if followed, would have gone a long way towards ensuring that basic human rights are not violated in custody; unfortunately, however, except for a handful of high-profile cases, these directives continue to be flouted, in direct violation of the court's orders.
After decades of lobbying by human rights activists, the government passed the Torture and Custodial Death (Prevention) Act, 2013, which makes torture by a law enforcer punishable by at least 5 years imprisonment and a Tk. 25,000 fine, and custodial death due to torture, punishable with life imprisonment and a Tk. 100,000 fine. This is no doubt a landmark legislation that sends a strong message about the state's commitment to end this barbaric practice, but questions remain as to what extent this law is being implemented, particularly as we are yet to repeal provisions of the Code of Criminal Procedure which prohibit prosecutions against public officials without the government's prior sanction if the offence is committed in an official capacity. If the government can excuse any and all acts of barbarity conducted while in uniform, then what is really the point of allowing victims the freedom to lodge complaints? Particularly if the torture is carried out by orders from above, it is all but impossible to get legal redress by ordinary citizens.
Custodial deaths and torture are illegal and unconstitutional, violating Article 31: Right to Protection of the Law; Article 32: Protection of Right to Life; Article 33: Safeguards in case of arrest or detention and Article 35 (5) Protection from torture or cruel, inhuman, or degrading punishment or treatment. In 1998, Bangladesh ratified the Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment (CAT), which prohibits torture under any circumstances – “whether a state of war or a threat of war, internal political instability or any other public emergency” [Article 2(2)] – but successive governments have failed to implement an anti-torture stance, resorting to these questionable tactics themselves from time to time to further their political agenda.
As another Human Rights Day rolls by, we remind the state that if it wishes to convince its citizens and the world that it is a democratic one, it must take urgent steps to stop this barbaric practice of custodial torture, rather than empower law enforcement agencies even further, giving them a tacit endorsement to violate constitutional rights with impunity.
The writer is an activist and journalist.