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Law Against Torture and Custodial Death - Towards curbing impunity

Bangladesh on 06 November 2013
Location : Bangladesh | Source : New Age. Image Source: New Age

A COUPLE of weeks ago, the outgoing parliament enacted the Torture and Custodial Death (Prevention) Act, 2013. The unavailability of the final act in the public domain, including the website of the ministry concerned, precludes one to comment on its content, but the fact that such a law has been framed is a victory for those who have been engaged in a relentless struggle to abolish the culture of impunity that members of the law enforcement agencies of this country have been enjoying over a long period. It is also a personal achievement of the lawmaker who presented this as a private member’s bill, himself a torture survivor and a former prisoner of conscience.

Bringing an end to impunity was one of the key objectives of the Committee of Civil Liberties and Legal Aid that was set up in the early 1970s in response to the excesses of the infamous Jatiya Rakkhi Bahini (the national guards). The first Awami League government created this bahini. Since then Bangladesh’s human rights landscape has continued to be stained by the practice of torture and liquidation of political opponents through extrajudicial killings and disappearances under successive governments — civil, military and quasi-military. Impunity has thus become well-entrenched and is reflected in the total disregard of the rule of law. It is also manifested in the framing of repressive laws such as the Joint Drive Indemnity Act that provided impunity for human rights violations committed in the course of Operation Clean Heart instituted by the Bangladesh Nationalist Party government. The issue of making the law enforcement agencies accountable has figured high on the agenda of the rights activists for more than four decades. It is in this context that the significance of the new legislation needs to be appreciated.

The practice of torture is a flagrant violation of Article 35(5) of Bangladesh’s constitution. It states that ‘no person shall be subjected to torture or to cruel, inhumane and degrading punishment or treatment’. One must admit that this important article was compromised by Article 46 of the constitution that empowers parliament to pass laws providing immunity from prosecution to any state officer for any action taken to maintain or restore order and to lift any penalty, sentence or punishment imposed. It is under this clause the soldiers and members of the Rapid Action Battalion are protected from the criminal justice system. They can only be prosecuted in internal courts that lack independence and impartiality. The police officers are covered under the jurisdiction of civilian courts. However, the court’s competence is constrained by Section 197 of the Criminal Procedure Code that necessitates an explicit government approval to prosecute an officer purported to have acted on good faith. 

Although the Penal Code of 1860 contains no specific mention of torture, Sections 330 and 331 make the acts of causing hurt and grievous hurt in order to obtain confessional statements, criminal offences, punishable with up to 10 years of imprisonment. Likewise, the Evidence Act categorically states that confession collected by inflicting torture upon a person has no legal value in the court. 

As a state party to the Convention against Torture, Bangladesh is obligated to ‘take effective legislative, administrative, judicial and other measure to prevent acts of torture in any territory under its jurisdiction’ [Article 2(1)]. Both CAT and the International Covenant on Civil and Political Rights oblige Bangladesh to hold perpetrators of torture accountable and to provide remedies and reparation to survivors. So far, Bangladesh has not accepted the competence of either the Committee against Torture or the Human Rights Committee to receive individual complaints on torture. In the past, the country’s track record on torture has invited expressions of concern by the UN Special Rapporteur on Torture and in two instances jointly with the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions. The government of Bangladesh has thus far declined to accept the recommendation to invite the special rapporteurs on torture and extrajudicial killings to conduct country visits. Since its ratification of the instrument, Bangladesh has missed the deadline for the fourth time to submit periodic report to the Committee on Convention against Torture. 

Despite explicit constitutional prohibition and international obligation, the practice of torture has been rampant in the country. People of all strata are affected by cruelty: political activists and journalists to human rights defenders and petty offenders. Torture has become a handy tool for law enforcers and is regarded to be a necessary instrument for law enforcement. For many in the police and other law enforcement agencies, it is a simple substitute for a thorough and painstaking investigation. Therefore, torture serves a range of purposes: it is a technique used for questioning a suspect and securing confession. Often this ends up in forcing to make false statement. It is used to suppress dissent and political opposition as well as to extort money from victims or members of their families. Detainees are subjected to ‘electric shocks, rape, severe kicking, and beating with objects that include iron rods, belts, or sticks’. 

Despite the open declaration of ‘zero tolerance’ of torture and other breaches of human rights, like its predecessors, the track record of the current government has not been particularly impressive. The promotion and decoration of a senior police functionary who publicly meted out physical harm and degrading treatment to the chief whip of the opposition party had certainly sent out wrong signals to the members of law enforcement agencies. The government’s highhanded policy of cancelling Odhikar’s ongoing project on awareness building on the Optional Protocol of the Convention against Torture in 2009 is another case in point. The organisation secured the right to complete the particular phase of the project after getting an interim order from the High Court Division of the Supreme Court against the arbitrary decision of the NGO Affairs Bureau. It may be further noted that the permission to grant extension of the project was again denied in 2010 without assigning any reason. 

The National Human Rights Commission has thus far played a rather timid role in voicing concern against torture, degrading treatment and impunity. Its dual role in the Limon case has disappointed many. It appears that the lower judiciary is yet to free itself of the yoke of the executive arm of state, although it has been a while since the independence of the judiciary has been established, at least in theory. The magistrates and session judges’ courts are yet to be made accountable to the higher judiciary, in place of the executive. All these have contributed to the erosion of trust in the criminal justice system. Survivors refrain from registering complaints for fear of reprisal.

International rights bodies including Human Rights Watch, Amnesty International and Asian Human Rights Commission as well as national rights watchdogs such as Odhikar and the Bangladesh Legal Aid Services Trust have noted that torture and ill-treatment of persons deprived of liberty generally take place in centres of detention that are inaccessible to public scrutiny and include the joint interrogation cells and the taskforce interrogation cell as well as when suspects are taken into remand for further questioning. In many instances, ‘death due to illness or cardiac arrest in custody’ is a euphemism for death due to torture. Odhikar recorded 63 such cases in 2012 and preliminary count suggests that the number could be higher in 2013. Many BDR members who stood trial for insurrection in 2009 have told the courts that they were subjected to torture to make confessional statements. Family members of some of the accused reported that they were severely wounded and were unable to speak or walk. Quite a few had died in custody. 

Appalled by the pervasiveness of torture, the High Court issued a 15-point directive in 2003. The directives were made following public interest litigation by BLAST challenging the abuse of arbitrary powers by the police and other law enforcement agencies in arresting citizens on suspicion and torturing them in remand and police lockups. The directives included building rooms with glass walls in the jails for interrogation of the arrested and until such arrangements are made the arrested to be interrogated at jail gates in the presence of their relatives and lawyers. The court also asked the police officers, magistrates, jail officers and sessions’ judges to ensure that citizen’s human rights are not violated. The judgement also highlighted reparation awards by the High Court in future torture cases. The Appellate Division of the Supreme Court upheld the High Court’s verdict. The Appellate Division also directed the authorities ‘to observe the law, in letter and spirit’ and implement the High Court directives in six months from August 2, 2003. Even after a decade of the much-celebrated verdict none of the directives has been implemented. Jurists have noted, ‘Since extrajudicial killings have become the order of the day the government(s) preferred to not take the High Court directives into cognisance.’ 

Despite their repeated promises of establishing the rule of law, successive governments in Bangladesh have thus far failed to rein in delinquent members of law enforcement agencies. Over the years, this failure has resulted in development of a culture of systemic impunity. It is against this failing of the government that civil society institutions, noted among them is Odhikar, have been clamouring for abolition of torture and ending impunity. One hopes that the new law, at least to an extent, will facilitate realisation of the much-cherished goal. 

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