A person cannot be torture or to cruel, inhuman or degrading punishment or treatment.
The Rule of law which is otherwise called supremacy of law enunciates that law is above everyone and it applies to everyone. Whether governor or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law. Even though it is recognized as fundamental to the western democratic order, every democratic State asserts its necessity in order to achieve the rule by the law and with the law. Such as, the Constitution of the People’s Republic of Bangladesh pledges in its Preamble that
A person cannot be torture or to cruel, inhuman or degrading punishment or treatment. According to Article 1 of the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), torture means:
“… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by a public official or any other person acting in official capacity.” By Adeeba Aziz Khan.
THE KEY CONCEPT:
As Bangladesh struggles, even with the return of a democratic government, to put an end to human rights violations in the form of extra-judicial killings and torture by law enforcers, one may wonder how far having a new criminal offence of torture will go, especially as a culture of impunity remains institutionalized in the justice system. Yet, this article endeavors to show that a clear definition of torture and its establishment as a criminal offence through the passing of a bill currently pending in Parliament – The Torture and Custodial Death (Prohibition)
Bill, 2009 – will have a number of significant impacts, and indeed be a necessary stepping-stone for many more much needed changes to come.
The Constitution of the People’s Republic of Bangladesh, the highest law of the land, prohibits torture along with “cruel, inhuman, or degrading punishment or treatment” in Article 35(5). Rather unhelpfully, however, there is no definition given of torture in the Constitution or in the Penal Code, nor is torture a specific offence in the Code. Despite ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1998, which provides a definition of torture and a clear direction to implement domestic law to criminalize torture, the first real action only came last year when a Private Member’s Bill was tabled in Parliament to do so. However, to date the bill remains held up, arguably due to a lack of political incentive or motivation.
Incidents of Torture:
1. On 18 May 2006, police in Gaibandha arrested Sajidur Rahman Sajid and the Court granted an application by the police to take him on remand for seven days. Two days into his remand, on 21 May, Sajid died, and the police claimed that he had committed suicide. The autopsy revealed that Sajid was strangled. Police then arrested the Investigating Officer (IO), Abu Yousuf, and suspended four other police officers. However, no action was taken against the Officer in Charge (OC) of Gaibandha Sadar police station. The public protested by joining in a hartal and hunger strike in Gaibandha town, during which speakers demanded justice and arrest of the OC. The OC and three constables were, reportedly, later withdrawn from their duties and transferred. 1
2. On 6 August, the High Court in another case issued a Rule against the Government and RAB to show cause as to why they should not be directed to ensure the safety and security of persons detained in RAB’s custody. Justice Syed Dastagir Hosain and Justice Mamnun Rahman issued the Rule after hearing a public interest writ petition filed by Human Rights and Peace for Bangladesh (HRPB), seeking a court directive on the Government and RAB to protect the life of any detained person. 2
3. On 9 September, Zaman, also known as Faruk, an accused in an extortion case, was arrested by RAB, and handed over to the police on 11 September. While in remand for two days in Rajshahi Moha- nagar Boaliya Police Station, he was reportedly physically tortured with electric shocks and died in a Rajshahi hospital as a result. The police denied abusing Faruk.
4. On 29 July 2006, the Daily Inqilab reported that the Sub-Inspector of Police in the Khulna police camp, Mirajul Islam Siraj, threatened Manira Khatun that he would arrest her brother after involving him in a number of pending cases, unless she paid him Taka 10,000.0 or spent the night with him. As Manira Khatun refused, she was reportedly beaten by the Sub-Inspector and another man, both dressed in civilian clothes. The policemen appeared at Manira’s house to arrest her brother. When they attempted to rape Manira, her screams were heard and she was rescued and admitted to Khulna Medical College Hospital. The Sub-Inspector later arrested her brother after beating him senseless, and took him to the Senhati Police camp tied to the top of the police van. The Sub-Inspector then demanded Taka 10,000.0 from the family, and threatened to kill Manira’s brother in ‘crossfire’ unless the amount was paid. The family was unable to pay and a case was filed against Manira’s brother, accusing him of having beaten police officers. The newspaper did not publish any follow up report on the case.
5. On 31 July, the daily Jugantor reported that police in Chittagong tortured a factory owner, Jamal Abdul Nasser, after arresting him on false charges of theft. A police source admitted that the charges were false and made due to pressure from higher officials.
6. On 16 August, two national newspapers, Jugantor and Sangbad, reported the illegal detention and torture of Latifur, a member of the Awami Jubo League, in Bogra. Some members of the Jubo League claimed that he was being detained and coerced to join the Bangladesh Nationalist Party (BNP). It was alleged that he was beaten with sticks and given electric shocks. He was also threatened with death in ‘crossfire’.
7. On 6 September, the Janakantha reported the torture of an Awami Mahila League activist, Nilufar Yasmeen, following her arrest after she participated in a protest rally. She claimed that during her remand the police blindfolded her and carried out other forms of psychological torture.
8. The Daily Star reported 3 that on 2 October, when a police car in use by the Deputy Inspector General (Special Branch), Dr Sadiqur Rahman, was not allowed to park in front of the National Shooting Federation Complex, an argument reportedly followed between the chauffeur and the security guard and the latter attacked the chauffeur. A three member police patrol team arrived on the scene, and according to eyewitness reports, proceeded to beat persons, including shooters, who were practicing inside the building. Shooting Federation officials claimed that at least 25 shooters were injured and that the policemen also attempted to storm the women’s quarters. The police then arrested five persons, including three shooters and Commonwealth Games Gold Medalist, Asif Hossain Khan. At the police station they beat the shooters with batons, and later Asif Hossain Khan, upon receiving bail, had to be admitted to hospital with injuries. Another shooter, Shoaibuzzaman, reportedly, was dragged to the bathroom and beaten as he lay on the floor. According to the police, the staff at the Shooting Complex attacked the policemen, and five persons were arrested for assaulting police officers.
The incident resulted in protests from different human rights organizations, political parties, sports’ associations and socio-cultural organizations. The Bangladesh Supreme Court Bar Association termed the police attack “lunacy” and “bestial” and demanded punishment of the policemen who were involved in the attack and withdrawal of the cases filed against the shooters.4
On 8 October, the Dhaka Metropolitan Magistrate, Syed Mohammad Mojibul Haq ordered a judicial enquiry into the attack after an official of the Shooting Federation Complex filed an attempted murder case against the five policemen involved. The complaint had to be filed with the Court, as the Shooting Federation officials were not allowed to enter the Gulshan Police Station in order to file the complaint.5
1. New Age , 22 May 2006, The Daily Star , 27, 30 May and 4 June, 2006.
2. The Daily Star , 28 July, 2006.
3. New Age , 7 August, 2006. Also see Chapter 3, p.39.
4. The Daily Star , 3 October, 2006.
5. Ibid ., 4 October, 2006.
The impacts of defining torture
The public support for “drives” and the accepted culture of torture and impunity of state officials is, at least partially, down to the fact that references to torture in the media by human rights advocates are no more than casual references to the word. Without there being a definition, it is difficult for the masses to engage with the actual, tangible wrong that is torture. In the words of Marcy Strauss, a professor at Loyola Law School, Los Angeles, a meaning too wide means there is hardly an effect of “shock and disgust” on public opinion. People are then free to have their own conceptions of the meaning of torture, thus making it difficult for activists to raise awareness about it and easy for the state to produce its own interpretation as to what torture is.
Following on from the problem of having many possible interpretations arises the difficulty of pointing out clear binding standards for the state. Despite the constitutional commitment in Article 35(5) upon the state not to commit to torture, the state has gone so far as to indemnify and empower perpetrators through specific legislation from time to time. Without a clear definition of what the commitment entails, it is unsurprising that such “creative compliance” has been relied upon by successive governments.
Besides providing a foundation for necessary reform of law that is effectively spurring the culture of torture and human rights violations, a definition of torture will do the same for the law on evidence, specifically, paving the way for redefining the circumstances under which confessions or admissions must be excluded from proceedings.
This is very old problem of Bangladesh that the use of torture and of inhuman and degrading punishment in custody and also in free places is a common view in Bangladesh. Whoever faces or experience Police or Rab or other law enforcement group of Bangladesh are faced trouble or face a lots of difficult. The majority of these incidents remain unaddressed and escape the attention of human rights and international organizations. Even those cases that were reported were mostly cases involving political party workers. Often, the victims do not report such incidents, as there is little hope for remedy or scope for complaints. It is largely only when the privileged are subjected to torture or illegal use of force that they are given media coverage. The use of torture by state agencies is often condoned by the highest officials of the State.
- New Age , 22 May 2006, The Daily Star , 27, 30 May and 4 June, 2006.
- The Daily Star , 28 July, 2006.
- New Age , 7 August, 2006. Also see Chapter 3, p.39.
- The Daily Star , 3 October, 2006.
- Ibid ., 4 October, 2006.
- Ibid. , 9 October, 2006
- By Adeeba Aziz Khan.
- The Constitution of the People’s Republic of Bangladesh, Article 35(5)