Custodial Death is a gross violation of Human Rights- Explain and Illustrate.
1. Introduction:
One of the worst crimes in civilized society governed by the Rule of Law is custodial deaths. This Rule of Law is particularly prevalent in Bangladesh whereby the entire foundation is based on the edifice of law.
The number of custodial deaths worldwide shows an increase when the law enforcing agencies use harsh methods to control militancy and the problem with custodial deaths is that there is very little evidence left behind to prove criminality in a court of law.
The right to life and liberty is one of the most important fundamental rights enshrined in basic human rights. However, instances of excessive force by Police far exceeding their lawful authority are attributed to the rise in custodial deaths. Torture of any kind whilst in Police custody is a crime and a heinous one at that.
Sadly, when Police who are supposed to protect the life and liberty of a citizen behave inhumanely with scant regard for the rule of law, this encourages further lawlessness and breeds contempt for the law within society. According to the media report, the human rights group Ain O Salish Kendra claimed some 229 people died in custody of the law enforcers in 2009. In 2010, according to their statistics, 133 persons were killed in police and RAB encounters. With little evidence left behind it is extremely hard for a family to bring the police to court and attain justice. Only a very few cases of families whose relation was killed whilst in custody actually bring the case to the courts.
2. Extrajudicial killings
After general elections in 2001 to the Jatiyo Sangshad(Bangladesh’s Parliament), the right-wing Bangladesh Nationalist Party gained a majority, largely on the basis of their law and order and national security policies within Bangladesh. In 2003, the government established the Rapid Action Battalion, an elite ‘anti-crime’ unit composed of armed personnel from several of the existing security branches. Since the RAB was set up, it has been constantly alleged that extrajudicial killings and instances of custodial torture have surged.
Between January and October 2005, an estimated 300 ‘criminal’ civilians died due to ‘encounter’ killings,[1]at the hands of law enforcement agencies and the RAB. Human rights groups have recorded many of these killings, and have demanded that each death be investigated, but the government has refused to meet these requests. The government has defended RAB for having cut serious crime by fifty percent, and have, as of 2006, dismissed international condemnation of RAB——against whom the European Parliament have issued a strong resolution[2] by saying that ‘encounter killings’ happen all over the world.
The government’s tolerance towards human rights abuses is not a new phenomenon. Operation Clean Heart was an anti-crime operation that ran nationwide from October 2002 to January 2003. It led to the death of approximately sixty people, the maiming of around three thousand individuals, and the arrest of more than forty-five thousand.[3] On the day that Operation Clean Heart officially ended, an ordinance was ratified that prohibited law-suits or prosecutions for human rights violations during that period, giving the armed forces and police impunity from being prosecuted for their actions.[4]
The Foreign minister Dr. Dipu Moni made commitments of ‘zero tolerance’ regarding extra judicial killings at the Universal Periodic Review Session (UPR)[5] in Geneva in February 2009 and in the UN Human Rights Council on May 01, 2010 and also when Bangladesh got elected for a 2nd term to the UN Human Right Council on May 12, 2009. In the UPR session on February 03, 2009, Foreign Minister Dr. Dipu Moni said that “We do not condone any such incident and will bring the responsible officials to justice.[6]
However, Extra Judicial killings continued in the last 2 years of this government. Members of the law enforcement agencies- the police, the Rapid Action Battalion (RAB) and the like- continued to kill so-called ‘criminal suspect’ and others outsides the purview of the judicial process. Such deaths are reported in the papers as deaths due to ‘crossfire’ or ‘encounter’ but the fact finding reports and on-site investigations can prove otherwise.[7]
In Madaripur, two brothers Lothfur Khalashi and Khairul Khalashi were reported to have been killed by RAB allegedly in a ‘cross fire’. According to ASK’s investigation the two brothers were arrested on 13 november 2099 from Rupganj, Naraynganj and on 15 November their dead bodies found at Shirnara of Madaripur. On seeing the report published in newspaper on 17 November, 2009, a High Court Bench[8] issued a sue motu Rule[9] to show cause as to why extra judicial killing by law enforcement forces should not be declared illegal.[10] Earlier in 2007, Obaidul Khalshi, the brother of Lothfur Khalashi and Khairul Khalashi was reported to have been killed by RAB in ‘cross fire’.
Table: Death by Law Enforcing Agency 2009
| Force/AgencyNature
Of Death |
RAB | Police | RAB &Police | Joint Force/Army | BDR | Total |
| ‘Crossfire’ (not arrested) | 33 | 55 | 22 | 2 | – | 112 |
| ‘Crossfire (in custody) | 9 | 3 | 1 | – | – | 13 |
| Physical Torture (not arrested) | – | 1 | – | – | 1 | 2 |
| Physical torture (in custody) | 1 | 7 | – | – | – | 8 |
| Shot (before Arrest) | – | 10 | – | 1 | 78 | 89 |
| Suicide (in custody) | 1 | 1 | – | – | – | 2 |
| Total | 45 | 79 | 23 | 3 | 79 | 229 |
In a writ petition[11] filed on 29 June 2009, the High Court Division Bench[12] issued a Rule to show cause within four weeks as to why extra judicial deaths at the hands of law and order should not be made to take departmental and criminal action against individuals involved in such activities. There has been no response from the government and the case is currently awaiting hearing.
3. Torture and Death in custody
There is no definition of ‘torture’ in the penal laws of Bangladesh, although the Constitution of the People’s Republic of Bangladesh states unconditionally, that no person shall be subjected to torture or any cruel, inhuman or degrading treatment. However, cruel and degrading treatment and acts amounting to ‘torture’ as defined in the UN Convention against Torture and Order Cruel, Inhuman or Degrading Treatment (CAT), are extremely common in the hands of the law enforcement agencies in Bangladesh. Bangladesh is a party to the CAT[13], but the declaration made by the government regarding article 14 of the Convention, shows that it is not willing to compensate victims of torture or their families. It is a form of denial that acts of torture occur in Bangladesh. Furthermore, the government has not signed the Optional Protocol to the Convention against Torture, showing further lack of commitment. Penal laws in Bangladesh do provide for punishment for officials who inflict ‘hurt’ and ‘grievous hurt’ to extort information. However, these are mere words paper.[14]
RAB and other record agencies have been accused of using torture during custody and interrogation. One allegation of such came from a young man who was arrested in Dhaka for protesting against the assault of an old man by plainclothes RAB agents. He was later severely tortured.[15] On July 27, 2005, two brothers from Rajshahi, Azizur Rahman Noodle and Atiquer Rahman Jewel, were arrested for eating a pony’s brain, beaten with batons and subjected to electric shocks.[16] It is alleged that this brutality stemmed from the brothers’ family being incapable of paying a sufficient bribe. The brothers were tortured to such an extent that they were hospitalised at the Rajshahi Medical College Hospital under police custody.[17]
4. Constitution provision regarding custodial death
According to the constitution of Bangladesh no person shall be deprived of life or personal liberty saves in accordance with law[18]. And Article 33 provides that ;(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply to any person-
(a) Who for the time being is an enemy alien; or
(b) Who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention.[19]
The following preventive and welfare measures are suggested by me which shall help in the prevention of the custodial deaths and also prove beneficial to the families of the victim of the custodial death to overcome miseries and sufferings to some extent :—
1. The police should be trained to use new scientific and parallel and psychological subjective techniques instead of using torture.
2. The working conditions of the police personnel should be improved and they should be provided with more promotional avenues on seniority basis.
3. The control of the Police should be brought under the Governor of the concerned State so that the police could work in a clean atmosphere free from political pressures.
A separate offence provision should be made by amending Section 302 of the Bangladesh Penal Code regarding treatment of custodial death as murder.
5. The adequate medical facilities should be provided in jails so that in case of emergency proper and timely medical help could be provided to the persons in the jail custody.
6. A counsel should be allowed to be present during interrogation to check the custodial violence by investigating officer.
7. The scientific facilities/techniques to police personnel should be provided to use during interrogation. It will be more useful in stopping this heinous crime.
8. The arrest of accused during interrogation may be considered justified in case of grave offences like murder, dacoity, robbery, rape etc., or when accused is likely to abscond and evade the process of law or when the accused is a habitual offender.
9. Section 114-B in the Indian Evidence Act, 1872 as recommended by the Law Commission in its 113th report, should be inserted to introduce a reputable presumption that injuries sustained by a person in police custody were caused by the police officer.
10. The compensation in case of custodial deaths should be a State responsibility. The State Government in turn can recover the amount of compensation from the offenders. For implementing this, a separate Tribunal/Board should be set up at the District level.
11. The Government should provide medical facilities in Government hospitals free of cost to the dependants of the victim of the custodial death.
12. The Government should provide free education up to graduation level to the dependants of the victim of the custodial death.
13. The Government should reserve a quota of one percent in Government jobs for at least one of the dependants of the victims.
14. The Government should reserve a quota of one percent in educational institutions for higher education for the dependants of the victims.
15. The most important requirement is to sanction a monthly pension to the dependants of the victim of custodial death because Government is liable for their miseries and sufferings.
5. Conclusion:
Faced with the resistance of the Police, lack of evidence, and the current court systems I believe that any family who does take the route of a court case has an extreme mountain to climb. Having said this, any form of custodial death, particularly by beatings, should be taken very seriously in any judicial system. Custodial deaths are like a cancer in the blood of society and servants of citizens, the Police, should be half responsible for any such injustice. There should be zero tolerance for any form of custodial deaths.
BIBLIOGRAPHY
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- http://www.swadhinata.org.uk/misc/HUMAN%20RIGHTS%20WATCH%20REPORT%202006.doc
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- The Daily Star, February 05, 2009
- www.odhikar.org.
- Sue Motu Rule no. 24727 of 200
- Writ Petition no 24152 of 2009 filed by ASK and BLAST
- http://www.redress.org/publication/Bangladesh.pdf
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- Constitution of People’s Republic Of Bangladesh
- Landau, T. (1994) Public Complaints Against the Police: A View from Complainants, Toronto: Centre of Criminology, University of Toronto.
- Lauer, A.R. (1994) ‘Policing in the 90s: Its Role and Accountability’ in D. Moore and R. Wettenhall (eds) Keeping the Peace: Police Accountability and Oversight, Canberra: University of Canberra and The Royal Institute of Public Administration Australia.
- Lustgarten, L. (1986) The Governance of the Police, London: Sweet and Maxwell.
- Maguire M. and C. Corbett (1987) “Patterns and Profiles of Complaints Against the Police’. In R. Morgan and D. Smith (eds). Coming to Terms with Policing. London: Routledge.
- Marshall, G. (1978) ‘Police Accountability Revisited’, in D. Butler and A. Halsey (eds) Policy and Politics, London: Macmillan.
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- McConville, M. , Sanders, A., and Leng, R. (1991) The Case for the Prosecution: Police, Suspects and the Construction of Criminality, London: Routledge.
- Neyroud, R & P Beckley (2001) Policing, ethics and human rights. Willan publishing.
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[1] Bangladesh to probe nearly 300 extrajudicial killings by law enforcers : South Asia News Onlypunjab.com- Onlypunjab.com Latest News
[2] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+MOTION+B6-2005-0265+0+DOC+PDF+V0//EN
[3] http://www.swadhinata.org.uk/misc/HUMAN%20RIGHTS%20WATCH%20REPORT%202006.doc
[4] Bangladesh: Operation Clean Heart: Dhaka’s dirty war
[5] Universal Periodic Review (UPR) Bangladesh: Compilation of Reports, Human Rights Forum on Universal Periodic Review (UPR) Bangladesh January 2009.
[6] Reported on The Daily Star, February 05, 2009
[7] Visit www.odhikar.org.
[8] Comprising of justice A.F.M. Abdur Rahman and Justice Md. Emdadul Haq
[9] Sue Motu Rule no. 24727 of 2009
[10] ASK and BLAST become interveners in the case
[11] ASK Document Unit
[12] Writ Petition no 24152 of 2009 filed by ASK and BLAST
[13] Bangladesh signed the CAT on October 5, 1998, with a declaration on Article 14.
[14] In 2003, the High Court Division of the Supreme Court of Banfladesh, in the matter of BLAST and Other V. Bangladesh and Others, lay down fifteen guidelines to be followed by police officers during the arrest, detention, remand and interrogation of suspects and accused persons. In this case, human rights organizations had challenged the practices of arrest witout warrant, under section 54 of the Code of Criminal Procedure and remand as being unconstitutional. These recommendations have still not been implemented.
[15] http://www.redress.org/publications/Bangladesh.pdf
[16] Bangladesh Human Rights Networks – banglarights.net
[17] BANGLADESH: Brutal torture of two young men by the Boalia police in Rajsahi
[18] See “Constitution of People’s Republic of Bangladesh”, Article 32.
[19] See “Constitution of People’s Republic of Bangladesh”, Article 33.
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