Bangladesh Govt Urged To Criminalise Torture

Bangladesh: Bangladesh's Parliament Urged To Criminalise Torture

Article 35 (5) of the Constitution of Bangladesh states: “No person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment” - thus, it is a fundamental right of all Bangladeshis that they are protected by the Constitution against torture. However, the ordinary citizens are not aware of the protection provided by their constitution. In contrast, everyone in Bangladesh uses a vernacular saying about the police: “Bagher soa lagley attharo gha, ar police er soa lagley chhottrish gha”, which means, “a tiger's touch inflicts 18 wounds and a policeman's touch inflicts 36 wounds”. This saying sums up the people's attitude towards the country's policing system, which survives on the brutal practice of torture as a tool of investigation and to maintain control across the nation.

Thus there is a vast difference between the constitutional provision and the belief of the people. This experience started on the very day when the nation adopted its constitution as the supreme law of the land immediately after the independence of the country from the colonial regime. That same difference of allowing torture to persist without any credible scope of justice to the victims remains after 38 years of independence. The police, along with its other branches such as Special Branch (SB), the Detective Branch (DB) and the Criminal Investigation Department (CID), are not the only agencies that practice torture. The paramilitary forces – the Rapid Action Battalion (RAB), Bangladesh Rifles (BDR) – the armed forces, especially the Bangladesh Army, and the intelligence agencies like the Directorate General of Forces Intelligence (DGFI) and National Security Intelligence (NSI) of the country, all maintain special torture cells of their own. There are temporarily created cells like the Joint Interrogation Cell (JIC) and the Task Force for Interrogation (TFI) Cell and they are notorious for their brutality. There is little support for the people they are supposed to be protecting. The law enforcement agencies and the security forces care little for the ordinary people of Bangladesh. The personnel, who serve in the police, armed forces and the paramilitary forces stand face to face before the people treating the commoners as “criminals” in general and subject them to torture in the name of maintaining law and order in the country.

Torture results in physical and psychological wounds to the individual victims, the families and the society as a whole and there is no available remedy from any institution. The use of torture by the law enforcement agencies has created a fear psychosis across the country. Now, nobody trusts the police as professionals that should be responsible for taking care of people's social security and the law and order of the nation. Rather, the practice of torture has been increased to such an extent that the people have been changing their notions about the very real possibility of falling prey to this brutal practice. A few decades ago, the ordinary people had a notion that if someone committed a crime, he or she might be caught by the police and subsequently be tortured in custody which is obviously illegal. Now, an ordinary pedestrian can be arrested by the police, who literally do not bother to identify the actual offenders and often show someone as an accused in order to show their superiors that they are maintaining their performance. The offender's fate starts with torture at the hands of the police and the degree of torture with various brutal methods increase while the man is taken into custody for the purpose of giving a confessional statement regarding his imaginary involvement. What follows is a bribe to the police for reducing the degree of torture and the number of fabricated cases against him. Both parties, the police and the detainees, go through various experiences as a result of this; the police gain a new source of income from a so called criminal and the detainee suffers torture, possible disability, fabricated case and a new burden of expenditure - for bribing the police, arranging medical treatment for the injuries and fighting the fabricated cases.

Due process of law does not exist in practice other than in the theory and in the law books in Bangladesh. The police, who fabricate each and everything for their own benefit and defense, show an ordinary person, who has been a victim of torture in custody, as a “criminal”. There is no mechanism to control the practice of the police in the fabrication of documents and statements. For example, the Constitution provides, in Articles 31 and 33, the right to the protection of the law and safeguards from arrest and detention. However, in reality the police do not allow a detainee to consult with his lawyer while under arrest and sadly, the country's lawyers do not have the habit of going to the police station to ensure legal support for their clients until they are produced before the court. The police take this opportunity to fabricate records such as the date, place and time of arrest. The severity of the allegations against the person varies on the basis of political and monetary influences, in favour of or against the detainee. Ironically, the Magistrate’s Courts often accept the statements of a person who was tortured and forced to make a statement in order to commence the trial. When the use of torture is a default practice, and the police obtain confessions out of torture, there cannot be any concept of due process of law or fair trial in the country, if such statements are considered as an evidence for the trial.

Similarly, the courts, mainly chaired by the Magistrates, are too uncaring and irresponsible to hold the police accountable when an allegation of custodial torture is brought before them. The country does not have an independent and credible medico-legal system that is able to establish and report of the findings of their examinations in to help the victims of torture get justice. Likewise, the lawyers do not intend to provide legal assistance to a victim of torture, as they do to an accused in a murder case or a corruption case. Instead, there are many instances where the senior members of the bar reluctantly suggest the victims of torture not to file any case against the law enforcement agencies for committing torture. Even if there is any case registered with a Magistrate's Court, as the police by default refuse to record a case of torture against other police officers or other state agencies such as the armed forces or paramilitary forces, the investigation is conducted by a police officer who produces a fabricated report, which is justified by another police officer who takes care of the prosecution at the Magistrate's Court. Rarely, if a case reaches a Sessions Court a public prosecutor, who by default belongs to the ruling political party, and always believes in his duty to protect the police in order to save his own political masters from criticism for the incidents of torture, also attest to the distorted investigation report of the police officer. Moreover, the complainant and witness of a case of torture routinely face intimidation and threats of extrajudicial killing unless the case is withdrawn. The enforcement officers, as they enjoy complete impunity from the authorities for such killings as well never hesitate to abuse human rights.

The government, regardless of whichever political or non-political groups are in power, uses the police as its own extended hands with sticks and guns, patronise the perpetrators; support them shamelessly and grace them with blatant impunity for which the authorities have Article 46 in the constitution. Section 132 of the Code of Criminal Procedure-1898 acknowledges that all deeds of the state agents are acts done in good faith while Section 197 bars prosecution of the state actors denying the authority of the court to take cognizance of the cases lodged against the perpetrators. So, are the courts of Bangladesh independent from the executive's controls?

In reality, a country like Bangladesh where a fair trial is beyond imagination of the justice seekers it is absolutely impossible to get a legal remedy against a perpetrator of torture. Thus, the possibility of obtaining legal redress in Bangladesh is as easy as swimming across an ocean within a day.

The personnel of the police, armed forces and paramilitary forces are more feared by the people as torturers than they are trusted as security-service-providers. None of these personnel have one professional identity; instead at the same time they are both policemen or armed forces personnel and perpetrators of torture.

There are 629 police stations in the country. If a single person is tortured per day in these police stations then an alarming number of 229,585 persons are being tortured in Bangladesh every year. Torture at the hands of the state actors regularly causes permanent and temporary disability of persons and amounts to hundreds of deaths every year. But, despite the recurrence of these grave incidents it repeatedly fails to shake the conscience of the policymakers of the nation. The governments of various regimes do not feel any responsibility to bring to an end this brutal practice. Ironically, the political parties of the country pledge to uphold rule of law and human rights before every general election and then turn a blind eye to abuses by the police once they are elected to power.

Bangladesh's parliament is in session for the second time after a new government led by the Bangladesh Awami League assumed office this year. A draft Bill urging the need of punishing torture and custodial death as a crime has also been in place since 5 March 2009. The Bill was registered by a Member of the Parliament, Mr. Saber Hossain Chowdhury, of the ruling political party, as a Private Member's Bill as the government did not clarify its position regarding the issue. A ruling party with more than two thirds majority in the parliament can eliminate torture and allow thousands of victims to get justice from the courts of law in order to fulfill the government’s commitment to the people thereby meeting their constitutional obligations.

The Asian Human Rights Commission (AHRC) urges the Parliament of Bangladesh to prove its commitment that they want to end the practice of custodial torture and the culture of impunity on their own soil. The AHRC urges the parliamentarians to legislate the draft Bill in order to open the doors of the judiciary for the victims of torture. The victims should have easy access to the complaint mechanism and protection from threats and intimidation. The burden of proof should be upon the perpetrators of torture with an obligation of compensating the victims for their sufferings if the perpetrators are found guilty. Article 46 of the Constitution must be repealed as it is used to offer impunity to the perpetrators of torture. Sections 132 and 197 of the Code of Criminal Procedure must be repealed immediately. Section 132 allows the state actors to abuse their power in the name of good faith without any checks and balances, and Section 197 denies the independence of the judiciary. The AHRC also urges the civil society, including the media and the rights groups of Bangladesh to initiate movements against the practice of custodial torture and impunity by demanding the criminalisation of torture.

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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