Bangladesh: Laws And Legal Reforms Needed

Bangladesh: Nation Urgently Needs Laws And Legal Reforms To Stop Custodial Torture And Extrajudicial Killings

By M. Shamsul Haque

Lawyer, Supreme Court Of Bangladesh

Bangladesh is an independent democratic country. She has been independent for almost four decades. At this time several elected Governments, including military regimes, have taken over power in the country. People are exercising their voting rights in order to make changes in the Government. The Government is being changed but the socio-economic and political condition of the people has yet to be changed significantly. It would not be an exaggeration to say that elected autocratic Governments have run the country up until now; hence peace in Bangladesh is a far distant cry.

The judiciary, although said to be independent, has yet to be proved; high handedness in the state machinery is frequently found in the judicial process. Physical torture of people arrested by the police, the Rapid Action Battalion (RAB), and other law enforcing agencies has precipitated a volatile situation. For the past 4/5 years, custodial deaths are frequently reported in the newspapers. Members of the Police, the RAB, the Detective Branch (DB) the Criminal Investigation Department (CID), and the Armed Forces conduct themselves as if they are above the law. They pick up anybody, kill them and give no explanation. However, on occasion they give the excuse that the victim died in the crossfire, or committed suicide or died due to cardiac failure. In this regard the killers never face an enquiry or are put on trial. On the contrary, sometimes they have been promoted to the next higher post by all the Governments of 4 party alliances, Caretaker Government and even presently the elec ted Mahajot (grand-allian
Bangladesh has a sacred book which is its constitution. It is the highest law of the land. The preamble in this constitution states that "Further pleading that it shall be a fundamental aim of the State to realize a society, free from exploitation -- a society in which the rule of law, fundamental human rights, freedom, equality, justice, political, economic and social well- being, will be secured for all citizens".

More specifically in Article 27 it is said, "All citizens are equal before the law and are entitled to equal protection of the law".

Further in Article 31, "To enjoy the protection of the law, and to be treated in accordance with the law, and only in accordance with the law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law"

Article 35(5) specifically says, "No persons shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment."

This being the constitutional provision, can a man of ordinary prudence imagine this: that an arrested person would be tortured to death by the arresting authority with no attendant liability?

Here we mention a newspaper clipping published in "Amar Desh" 13, April 2009. It stated the types of torture meted out to an accused while on police remand.

The different types of torture are as follows:

1. Gita: Beating the joints of every limb. No external bleeding occurs but the limbs are damaged. 2. Badur Dholai (Bat beating): The accused person is hung by his hands between two tables like a bat. He is then beaten mercilessly. 3. Water therapy: This type of torture is inflicted upon veteran criminals. A napkin or a cloth is put over the face of the accused while he is lying face up. Next, hot/cold water is poured on the napkin. The accused dies of suffocation and the excuse given is that he died of cardiac arrest. In 1998, a University Student, Shamim Reza Rubel was killed while in custody using this type of torture. 4. Bottle Therapy: The accused persons are beaten with hot or cold water bottles. This type of torture leaves no marks, so it is the preferred method most often used by the authorities. 5. Dim Therapy (Egg Therapy): Hot boiled eggs are pushed up into the anal canal. This type of torture leaves no external sign of injury. 6. Disco Dance: Electric Shocks are administered. The victims' body convulses and it is called the disco dance by these aberrant police officers. 7. Shelai (Stitch): Needles are inserted under the nails of the accused. This is called shelai. 8. Jhal Muri (Chili mixed fired Rice): Dry chili powder is thrown into the eyes and the face of the accused. 9. Tana (Hanging): While being suspended an accused is given blows to the feet with a lathi stick- this is called Tana. 10. Batash Paddhoti (Fan practice): The accused is hung from a ceiling fan and then beaten. All the above are code names for torture administered by the police. Sometimes these are carried out to the letter by a subordinate employee with two views in mind. The first is to extract a confession from the accused while in custody. The second is to extract money form the accused. Whenever an order for police remand is passed by a Magistrate, the accused persons’ relatives become fearful. They anticipate that the accused may be severely physically tortured or even put to death. It is at this point that the relatives offer goodly amounts of money to the police to avoid the torture of their family member. This is one method the Police Officers use to make money for themselves. Today, in Bangladesh, the Investigating Officer in almost 90% of Criminal Case applications prefers seeking police remand of the accused and these applications are hardly ever refused by the Magistrate.

In recent years, custodial deaths and extra judicial killings have risen to an alarming number. Some of the following pat explanations are given after a killing takes place. They say the death was a result of (1) Crossfire

(2) Brush fire

(3) Suicide

(4) Cardiac failure The law enforcing agencies are never held accountable for the killing of an arrested, accused/ victim. The investigating or the arresting officer is never supposed to face trial for the killing of an arrested citizen. The Ministry of Home Affairs made this statement to the press on 16 May 2009. She said that members of the law enforcing agencies have a right to defend themselves which means that they can kill the accused if necessary. She made a similar comment on 6 September. While two polytechnic students were shot to death by the RAB (The Prothom Alo, dated 29 May 2009), the Foreign Minister was saying, “It will take time to stop extra judicial killings". This was broadcast on the televised news on 29 May 2009.

Lack of clear laws:
In fact, there is no clear law in this country to book a police officer or a member of the law enforcing agencies if he illegally kills any person in custody. A few prevailing laws, like the Penal Code-1860, are in poor form. Such an offender can be dealt with, but clumsily. In actual fact, nothing can be done against the perpetrators. For example, if an allegation is lodged against such an officer, who killed an accused person illegally, the case will be investigated by a police officer (Section 156 and 157 of the Code of Criminal Procedure-1898). And in most cases one police officer does not give a report against another police officer. Moreover, people are so frightened that normally they would not lodge an allegation against members of law enforcing agencies. Should they register such a complaint, it is predictable that either the complainant or any member of his family may be falsely implicated in the case, which will be graver in nature.

There are certain Sections in the Penal Code-1860, in Chapter- IX, from Section 161 to 171, regarding offences by or relating to public servants such as: Public servant receiving gratification other than legal remuneration in respect of an official act (Sec-161)

Public servant disobeying the law with the intent to cause injury (Sec-166)
OR
Public servant filing a corrupt report in a judicial proceeding contrary to the law (Sect- 219)
OR
Commitment for trial or confinement by a person in authority who knows that he is acting contrary to the law, (Sect- 220) as incorporated in Chapter-XI of the Penal Code regarding false evidence and offences against public justice. These are punishable offences. But such a case initiated against a police officer or a public servant can hardly be found. People do not feel free to move against a police officer or the Armed Forces because they are afraid of being falsely accused as mentioned above. Secondly, these types of cases are generally investigated by police officers and all garnered information is required to be given to the Police Station as provided in Chapter-XIV, Part-V of the Code of Criminal Procedure. Every recognizable offence is investigated by police officers. If the case is directly filed before a Magistrate, the same information is sent to the police for investigation. In such circumstances it is difficult to bring the wrong doers to justice. These are crimes commit ted by police officers/ a Mechanism of trial and punishment: Decisions taken by the Armed Forces Tribunals and the disciplinary actions by authorities in the Armed Forces are immune from challenge in Writ Jurisdiction, except within the narrow compass of want of jurisdiction, according to the Dhaka Law Report (DLR) 34 (Appellate Division), Page 125. The Armed Police Battalion Ordinance 1979 has given birth to (i) Armed Police Battalions and (ii) Rapid Action Battalions (RAB). Under Section 6-A of the Ordinance the RAB is empowered to investigate any offence under the direction of the Government under the Code of Criminal Procedure-1898 or any other law. The Investigating Officer shall exercise all such powers and perform all such functions and duties as may be exercised or performed by a police officer under the Code of Criminal Procedure-1898; but if they do anything wrong or illegal they will be tried by their own Tribunal, not by an ordinary court.

It is not unheard of that a few persons are in praise of the suspect activity of the RAB. They expressed their satisfaction with the extra judicial killings on the plea that law and order has deteriorated to a significant degree. They reasoned that such type of killing is necessary. However, this argument bears no logic; no person should be killed in this way without a fair trial and justice for his situation. Legal Impediments:
There are certain legal impediments to check or stop these acts done by cruel, corrupt and inhumane officials. The Code of Criminal Procedure of 1898 has given certain un-limited powers to police officers effecting arrest or investigating a case. But side by side they have to be guided by a good conscience as they exercise this unlimited power. Section 46 to Section 67 as incorporated in Chapter-VI, laid down the Procedures for arrest, escape and retaking.

Section 46-
Arrest How Made: (1) “In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action”. Resisting Endeavour to arrest: (2) “If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest such police officer or other persons may use all means necessary to effect the arrest. (3) Nothing in this Section gives a right to cause the death of a person who is not accused of an offence punishable with death or with transportation for life”.

So, it is crystal clear from sub Section (1) of Section 46 that police officers in arresting a person will not touch the body unless by word or action the police officer informs him that he is arrested or he is in custody. So there is no scope for applying force in arresting a person unless the person required to be arrested applies any force or resists in evading the arrest.

But in Sub-Section (2) of Section 46 the Police Officer may use all means necessary if the person resists or attempts to evade arrest. The police officer may shoot towards the evading person and kill him if he is an accused of an offence punishable with death or transportation for life. So, it has become easier on the part of the police/RAB to cause the death of a person while arresting him by conjuring up a story of his resistance in evading arrest. To stop the extra judicial killing this sub-Section (2) of Section 46 is required first to be addressed and then amended.

The Judges of the South Asian subcontinent on several occasions have admonished society that investigating police are primarily the guardians of the liberty of an innocent person. A heavy responsibility devolves on them in seeing that innocent persons are not charged with irresponsible or false allegations. In the Dhaka Law Report (DLR) (High Court Division) page 363, Mr. Justice Hamidul Haque and Mr. Justice Salma Masud Chowdhury have given certain recommendations regarding arrest, confessions, and police remand. But these recommendations are merely circled in the document. Before adjudicating the innocence or guilt of a person to be put to death, what is necessary of the judiciary? How can civilization continue in this way?

The pen of the investigating officer is so powerful that it can do and undo each and everything as experienced in the British colonial period. It can compel an innocent person to stand in the dock to face trial; likewise it can set a veteran criminal free. Even today it needs no ink to send a report, merely refer the matter to the trigger of the gun.

In section 54, 156, 157, 164, 167 and other allied Sections of the Code of Criminal Procedure-1898 the police have unfettered jurisdiction, as if they are above the law. The time has come to urgently address all these things, amending relevant Sections and enacting the necessary laws. If this is done, members of the law enforcing agencies would be held accountable. They must be made to understand that they are not above the law.

"But who will bell the cat”? Every Government is reluctant to act in regard to the civil rights of its citizens.

Seemingly the Government is shaky, and afraid of being toppled if they do not have the support of the law enforcement agencies. Parties in opposition raise a slow voice against extra judicial killings. However, the moment they assume power they forget everything that had previously transpired. It rather works as a shield in supporting the perpetrators within the law enforcing agencies.

To achieve fruitful results from an independent judiciary, the high handedness of the law enforcing agencies must be stopped. Perpetrators within the law enforcing agencies must be brought to book by enacting new laws as they become necessary. # # #

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

ENDS

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