Purging the pernicious culture of torture
Early this week, a court in Dhaka refused the police's plea to grant the remand of one Hannan Chowdhury. Instead, it advised the police to attend to his medical needs first. Hannan was unable to walk due to alleged torture, and produced before the court being carried by the members of the police. Severe marks of beating on his body, particularly below the two knees and on the back, were evident. The gruesome image of the marks was published in a leading Bangla daily on June 22.
Hannan Chowdhury's counsel claimed in the court that the former was brutalised in custody. Hannan told journalists that after he was picked up, the members of Rapid Action Battalion tied up his hands and feet, and then tortured him in a city hotel. Media reports inform that the manager of the concerned hotel corroborated the claims. The commander of the RAB unit, however, denied inflicting torture on Hannan. He wasted no time in informing that the detainee "was an influential criminal". The commander reassured that if anyone lodges a written complaint in this regard, he would investigate the matter.
Torture by state agencies is endemic in Bangladesh. Over the decades rights organisations such as Odhikar and Ain O Shalish Kendra have been documenting reports of torture under successive governments. Numerous allegations of torture and deaths due to torture-in-custody have been reported from time to time. But those reports in most likelihood constitute only the tip of the iceberg, as in most instances, victims and members of their families either prefer not to report for fear of retribution from the state agencies or are coerced into silence. Odhikar documentation informs that between 2009 and May 2016 at least 101 people succumbed to death due to torture in custody.
Torture, and inhuman and degrading treatment in custody of law enforcement agencies (LEA) is a serious human rights violation and a criminal offence. The pernicious practice of torture is prohibited under the Constitution of Bangladesh. Moreover, being party to several human rights treaties, including the Convention against Torture (CAT), the country is also under international obligation to prohibit torture in custody. Article 35(5) of the Constitution reads: "No person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment". In October 2013, after years of sustained campaigning by rights activists, the Torture and Custodial Death (Prevention) Act, 2013 was legislated. Despite falling short of the expectations of the campaigners, the Act was well received, as it had taken on board several important principles of the CAT, including the definition of 'torture'.
Quite like many other good laws, there has been very little application of this law. Despite the pervasive practice of torture by members of law enforcement agencies, only in a handful of instances has this law been invoked. And even then, there has been little tangible progress in such cases. The reason for non-application of the 2013 anti-torture law is not difficult to find.
Little has been done to disseminate the contents of the Act across various branches and tiers of law enforcement agencies and the judiciary. The colonial and the Pakistani legacy of alienated law enforcement agencies, bereft of adequate human rights training, enable them to act in the most arbitrary and unaccountable ways. Lack of professionalism and politicisation of these agencies have exacerbated the problem. In addition, apparent impunity given to the errant members has created an enabling environment for the perpetrators to thrive. The Hannan case clearly demonstrates that even unambiguous evidence of misconduct and transgression is faced with blatant denials. Instead of taking action against the violators of the law, the political leadership appears to be deeply committed to endorsing such acts, however vile they might be.
The proposal of the Police headquarters, suggested in their letter of March 2015 letter to the Ministry of Home Affairs for the amendment of the Torture and Custodial Death (Prevention Act) , gives one the impression of a lack of due importance to the issue on the part of the top echelons of law enforcement agencies. As per the proposal, the Act would exclude the RAB, as well as the Criminal Investigation Department, Special Branch and Detective Branch - the very actors frequently alleged to resort to torture - from the definition of law enforcement agencies, thereby protecting them altogether from responsibility and prosecution under the Act. The proposal further suggests limiting the definition of torture to "acts or omissions which cause physical pain to any person for the purpose of obtaining information or confession". The other purposes – punishment, intimidation, coercion and discrimination – as well as causing "mental pain" have been proposed to be repealed.
The two amendments are in contravention with Article 1 of the CAT that provides comprehensive definition of torture binding upon all parties to the Convention. Bangladesh, as a state-party, cannot depart from such universal principles. Article 1 of the Convention clearly defines the perpetrator as being "public officials or other persons acting in an official capacity" and includes any branch of police, and other investigating bodies, as well as the military.
The police also proposed to amend the complaint and investigation procedures regulated in Section 7 of the Act. The proposal suggests that complaints should be lodged before the police or a magistrate instead of a court. This would mean the petition would have to be filed with the very entity that is accused of torture. Certainly, this is against the basic principle of natural justice, and is in contradiction of Article 12 of CAT that stipulates "impartial and independent investigations" into torture allegations.
The police also suggested the repeal of Section 12 of the Act that provides that "a state of war, threat of war, internal political instability, public emergency; or an order of superior officer or a public authority" shall not be an excuse for torture. Section 12 has been in compliance of Articles 2 and 3 of the CAT that made prohibition of torture both absolute and non-derogable. In other words, nothing can justify torture under any circumstance, including war, emergency or superior orders.
Despite having an appropriate legal framework, Bangladesh has a long way to go in containing torture, let alone eliminating the practice. Professionalism of members of law enforcement agencies and keenness of the political leadership are necessary conditions to bring about the change. No less important is the sustained engagement of a committed unbiased civil society.
The writer is Professor of International Relations at the University of Dhaka. He researches and writes on rights and migration issues.