A significant number of people are poor and in most of the time only these poor become the victim of different abuse of power, especially by the police. How does the situation change? Explain.

  Introduction:

In view of the decisions taken in the UN[1] Resolution A/RES/40/34 of November 29, 1985, the legal system in Bangladesh definitely falls short of the desired standard in as much as compensation, restitution and rehabilitation of victims of offences and victims of abuse of power have not been incorporated in the country’s Code of Criminal Procedure. But, as it will be seen later in this overview, some special statutes enacted in Bangladesh during the last five years, have made legal provisions for realizing compensation for the purpose of restitution of the victims of offences.

Bangladesh emerged as an independent state in 1971, after 190 years of British colonial subjugation, and another 24 years of semi-colonial domination. Almost all the statutes of the pre-independence colonial period were given continuance in the post-independence era. The criminal justice system of the pre-independence period was encoded in The Code of Criminal Procedure of 1898[2]. This statute is still in force although remarkable changes have been effected from time to time over the last 34 years of independence.

At the moment, a culture of impunity exists in Bangladesh for wrongful acts perpetrated by the police. Abuse of power, bias, corruption, illegal methods and excess use of force are, even when well documented, left unattended and unpunished[3]. Common abuses include extra-judicial killings (otherwise known as “encounter” or “crossfire” deaths); the widespread use of torture as a method of investigation; unjustified arrests; refusal to register First Information Reports; detentions beyond permissible statutory time limits; reluctance to accept complaints or investigate them; and giving false evidence.

And yet, despite the deficiencies in policing, there is very little effective oversight or review of police conduct in Bangladesh. Having such mechanisms greatly enhances the likelihood that police will behave lawfully. However, Bangladesh does not have a functional external accountability mechanism or a permanent internal accountability mechanism that is adequately resourced. In addition, parliamentary oversight is practically non-existent in the country. Although parliament should constantly be overseeing the police, it in fact spends little time examining their performance[4]. Accountability of police organizations usually takes four forms — government/state, internal, external, and social.

 Police Abuse:

By police abuse, we mean the inappropriate and illegal use of police powers to coerce, harass, intimidate, arrest, assault and kill members of our community. Police abuse also occurs in the form of racial profiling, illegal roadblocks and illegal searches. The victims of police abuse are often the usual targets of institutional discrimination: racial minorities, homeless people, gays, youth and anyone who protests against the system. In Bangladesh, police do mainly strike against the poor people as they are helpless.

Because of this abuse and the lack of accountability[5] to the community, many people don’t see the police as “public servants”[6]. Police abuse and other forms of criminal injustice pose a threat to the foundations of our democracy. It adds to the frustration and hopelessness of people who already feel abandoned and serves to further undermine the trust that citizens have in their government.

 Why Police Abuse Is Allowed To Continue and How It Relates to Other Problems:

The police departments have bad policies and “internal cultures”[7]

v      Their hiring policies are flawed. They do not do enough checking of the backgrounds and complete psychological tests on officer candidates. The departments have a habit of hiring officers who have a “power-hungry and gung-ho mentality”.

v      Police officers are not trained properly. This has led to shooting suspects (most of whom have been unarmed) and abusing people in the community regularly. They tend to “shoot first and ask questions later”. It appears that instead of being trained to deal with people in a respectful manner they operate under the assumption that everybody is a potential criminal.

v      Departments have vague “use of force” policies that allow officers to interpret them the way they want.

v      There is no accountability when an officer violates the department’s own policies. Officers are rarely found guilty of wrongdoing by the police department’s own internal investigations. In fact, in many cities nationwide, officers who shoot people dead end up getting promoted. This gives them the go-ahead to abuse more victims. Clearly, the police cannot police themselves. 90% of citizen complaints of excessive use of force end up in “no action”.

v      There is no “quality control”. Bad officers with many complaints are not adequately tracked and therefore never get fired.

v      There is an unwritten “Blue Code” of silence which means that police officers cover up for each other. The Louisville Police Department (LPD) tolerates this conduct[8].

v      Most abused citizens are discouraged from filing complaints and are sometimes intimidated into not doing so. This results in much abuse not ever being reported. When they do file, victim’s complaints are often distorted and sometimes falsified by internal affairs officers. Accused officers lie to cover themselves.

v      Officers get a commission every time they arrest someone. They get about $40 every time they show up in court in addition to their salaries. This system encourages them to arrest anybody and slap them with a bogus charge, or pull people over for no reason, in hopes that they will be able to find something to charge them with.

v      When an officer is accused and goes to court for abusing citizens, in many states they have “special rights”. These include “qualified immunity” which gives them automatic appeals when they are found guilty. For the average citizen this is not the case because a judge can deny an appeal.

v      Mandatory minimum sentencing laws automatically send people to jail for certain crimes regardless of individual circumstances. These laws mean that the judge can’t take into consideration, for example, the accused having a past clean record. These laws end up crowding our jails and prisons. Almost all inmates in local, state and federal jails and prisons are there because of drug or economic crimes, not violent crimes like rape, abuse or murder. (See: The War on Drugs)[9].

v      People who are poor can become victims of the system even if they are not guilty. Poor folks usually don’t have the money to fight a case to the bitter end or get a good attorney who has experience and will fight it. This railroading of people through the courts saves the police departments, prosecutors, district attorneys, courts and cities time and a lot of money. This is a system that doesn’t care about justice, only money[10].

 Few Facts and Figures:

The magnitude and dimensions of criminality in Bangladesh have been steadily increasing. In 1996, 93,310 cases were recorded by the police, which equal approximately 78 crimes per 100,000 inhabitants[11]. Crimes recorded in the preceding three years show a steady upward trend: 72,069 in 1993, 75,309 in 1994, and 82,971 in 1995. However, it is obvious that these figures understate the real crime rate, as not all crimes are reported or recorded. Crime statistics of a few selected countries offer a comparative perspective: In 1990, recorded crimes per 100,000 populations were 8,986 in England and Wales; 1,449 in Thailand; 1,396 in Japan; and 1,522 in Hong Kong.

Police strategies for keeping pace with the developments in crime have been mainly limited to increasing police manpower. Thus, police numbers have increased to the level of 93,073 in 1997-1998, from 58,999 in 1975-1976, and 34,378 in 1970. Recruitment of another 5,000 personnel is in progress. With the aim of enhancing police capability, the Bangladesh Police and Dhaka Metropolitan Police developed a Strategic Plan (1995-1998) and a Corporate Plan ‘Way Ahead’ (1994-1996), and have initiated community-based policing reforms in a few areas of Dhaka, Mymensingh and Jamalpur towns, and elsewhere.

Research Findings by UN

 A POLICE RESPONSIVENESS TO THE POOR

The way that the police respond to the public’s requests for help is a key indicator of the quality of any police service. Police operations are all about service delivery. It is therefore pertinent to examine[12] the experiences of those reporting crimes, victims, witnesses, and the general public (particularly the poor).

There is a high level of consensus on the poor quality of police responsiveness to the concerns of the poor. The attitude is particularly held with regard to victim support programmes for the poor. The view that the police respond more quickly when subject to pressure, or when the complainant has good contacts, was strongly held. This indicates the vulnerability of the poor, who clearly do not expect fair treatment if they cannot influence the police. The use of bribes and other pressure has a direct effect on police responsiveness, which only sets the stage for such persuasion tactics to continue.

A.     CASE STUDIES OF VICTIMS’ STORIES

The UN has provided a deep research among the people to know the current situation of the Bangladesh Police Force. Some of them do share their pathetic stories that were amalgamated into few case studies as given below.

 1.      Arrests and Corruption

The police continue to abuse the power of arrest despite a High Court’s directive to amend Section 54[13] of the Criminal Procedure Code (CrPC). They instead increase the use of other legal provisions, Sections 86 and 100[14] of the Dhaka Metropolitan Police Ordinance which only apply to the capital city, to arbitrarily arrest people.

From September last year to May this year, the total number of arrests in Dhaka Metropolitan City was 69,715. Of them, 45,872 arrests were made under Sections 86 and 100 of the DMP Ordinance[15], whereas 4,360 arrests were conducted under Section 54 of the CrPC. This shows the majority of people arrested under these legal provisions are from poor economic backgrounds. They are homeless, rickshaw-pullers, small traders, workers in small industries, vendors, street children and destitute women.

Malpractices in Secret

During the investigation, some people are found to have been acting as mediators or brokers between the police and the relatives of people arrested to negotiate for the release of the detainees in exchange for money[16]. They are present particularly at the police stations of Motijheel, Mirpur, Ramna, Tejgaon, Mohammadpur and Hajaribag. They lobby the police on behalf of kith and kin of the arrested people[17].

The environment of police stations during evenings is totally different from that in daytime. Most of the torture incidents and illegal money transactions take place at night-time. People who have been arrested without any allegation during daytime are offered an opportunity[18] to be freed by paying money to the police.

 Arrests before Political Deadline

In the name of preventing any chaos and maintaining the law and order situation, the police arrested and harassed innocent people for two weeks before April 30, the deadline imposed by the opposition Awami League to dislodge the government out of power. Police arrested people randomly from bus stations, railway stations, launch stations with luggage and kept them in police stations. All the police stations in Dhaka City were full of such people[19] for several days. Police released many of them in exchange for money without taken to court.

Improvement and Constraints

However, the situation of police stations in the city has improved a little during Odhikar’s monitoring[20]. Police behaviour towards the people is gradually changing in a few cases, which is obviously a good indication. Recently some police stations have made separation for the custody of children and juvenile offenders. In every police station, a list of instructions provided by the inspector general of police is being seen in the duty officer’s room stating what to do and how to deal with people. Yet the instructions have not yet been practised or followed[21].

Even police officers do not get any transport when they go to investigate a specific case or give witness. These lead them to be corrupted and to recover their money by other means. Their budget[22] is nothing compare to daily living expenses.

No Definition of Torture in Law

However, the criminal laws in Bangladesh do not have a definition of torture[23] in particular.

In Bangladesh, such kind of definition of torture has not yet been enacted. Yet only the Bangladesh Penal Code 1860 has provided definitions and penalties of some offences that very narrowly cover the area of torture[24]. If offences are affecting life, relating to hurt, relating to wrongful restraint and wrongful confinement, relating to criminal force and assault, relating to rape is caused by members of the police force, such complaints of torture can be brought against suspected police officers under those related provisions of the penal code.

 
The current situation has changed a lot in the recent years. This is because there are many NGOs who are working for the poor peoples’ right. Taking into consideration the informal ways of dispute resolutions, we can divide the overall justice sector into two parts- the formal justice sector and the informal one. From the highest tier, i.e., the Supreme Court to the lowest one, i.e., the village court has been included in the formal justice sector. On the other hand, the informal sector includes shalish (informal justice conference) and NGO-organized mediation (EC, 2005). Part VI of the constitution of the people’s republic of Bangladesh deals with the formal justice sector. According to the constitution, the Supreme Court of Bangladesh is the highest court. It has two divisions- the high court division and the appellate division[25].

The district and session courts lie below the Supreme Court. Headed by a district judge (formally titled as District and Sessions Judge) a district court deals with both civil and criminal matters. Metropolitan cities now have separate criminal court as Metropolitan Courts of Sessions to deal with crimes committed within the metropolitan areas. Bekiw the sessions court, the next lower tier is the magistrate’s court, which deals with crimes punishable with imprisonments of upto 5 years.

In case of civil matter[26], the bottom most court is the court of an assistant judge. The village court lies beneath the magistrates court (criminal matter) and court of assistant judge (civil matter) (EC, 2005, p. 27-28). Except the magistracy, all other judges are members of the judicial service “which is controlled and supervised by the MLJPA and Supreme Court” (ibid, p. 28). The magistrates are the members of the administrative service and their control lies in the hand of the executive branch through Ministry of Establishment and the Cabinet Division.

Based on the types of crimes and issues dealt with, we have found two types of courts, namely civil and criminal. Section 9 of CPC allows the civil courts to have jurisdiction to try all suits of civil nature[27]. However, the nature of jurisdiction varies for different civil courts. In total, four types of jurisdictions are known-

Territorial jurisdiction, which allows every court to have its own local or territorial limit; pecuniary jurisdiction, according to which “…a court will have jurisdiction only over those suits, the amount or value of which does not exceed the pecuniary limits of its jurisdiction.” Section 6 of the Code of Civil Procedure, 1908 and section 18-21 of the Civil Courts Act, 1887, deals with pecuniary jurisdiction; jurisdiction as to subject matter which empowers different courts to decide different types of suits and original and appellate jurisdiction which allows a court to entertain and decide suits and appeals (Sec 9, CPC, Bangladesh, 1908).

 Section 6 of the Code of Criminal Procedure, 1898 provides the foundation of five classes of criminal courts beside the Supreme Court. They are

1.                                  i.            Courts of the session judge
2.                                ii.            Courts of metropolitan magistrate/ District Judge (outside the metropolitan area)
3.                               iii.            Court of 1st class magistrate
4.                              iv.            Court of 2nd class magistrate
5.                                v.            Court of 3rd class magistrate (Section 6, Cr.PC, 1898).

Among these justice institutions, in courts of the session judge, on being conferred with the session power, the district judges and the additional district judges act as the session’s judges while joint district judge acts as assistant session’s judges, respectively. In both criminal and civil cases district and additional district judges are both courts of trial and appeal. For example, in criminal cases, these judges are trial courts for crimes which are punishable with imprisonment of more than 10 years, while they also hear appeals against conviction and sentences of upto 5 years of imprisonment passed by joint district judge or Magistrate, 1st Class The court of metropolitan magistrate is situated in metropolitan area and the other three classes of court are situated in district areas[28].

Besides this, there are also courts of – (a) district magistrate and (b) additional district magistrate. Appointed by the government, the deputy commissioner performs the duties of a district magistrate and additional deputy commissioner acts as an additional district magistrate. Following the Village Court Ordinance of 1976, the Union Parishad conducts the village court that deals with petty and non-compounding disputes. In the informal sector, the two well known justice procedures are- shalish and NGO sponsored mediation and justice conferences.. Shalish[29] can be conducted in various forms- it can be arbitrary or mediatory or a blend of the two[30]. Shalish- the arbitrarily one is known as traditional shalish conducted by the village elders. As they are considered as respected or powerful, their decisions always carry a great weight[31]. With a credible past, in a case of a dispute resolution, at present, this particular system either had “completely broken down” or had “become largely inoperative”[32].

Relying on the basic principles of shalish, i.e., being prompt in problem solution and providing equitable justice, NGOs are using it to ensure access to justice for the poor (ibid, p. 149). Developmental and legal NGOs in Bangladesh are contributing to modernize the shalish process to make it more acceptable and equitable. Thus, the NGO-coordinated shalish, also known as Alternate Dispute Resolution (ADR), is actually a redefinition of the traditional shalish which adds “…specialized training, the appointment of women mediators or the convening of mediation panels with specialty knowledge of women’s rights or other issues” (ibid).

 In order to ensure the effective functioning of the legal sector, no one can deny the importance of formal sector. Some reform efforts have already been taken place and they should be accelerated. Thus, if the bridge is built, the formal sector should assure access for the people living on the other side. For this, first of all, laws should be modernized. To reform criminal justice, Code of Criminal Procedure should be revised, to streamline criminal justice; separate Criminal Investigation Department like FBI could be established. Second, the ridiculous three months winter vacation in higher courts should be shortened. Thirdly, introduction of modern technology is needed in areas of case management. Tape recording machines for recording, computer and photocopier for composing and photocopying documents are essential[33]. Fourthly, it must be ensured that once justice is delivered the copy of that is issued immediately. Fifthly, the salary benefit of the judges should be increased, as the bright, young lawyers are interested in joining the judicial service. Sixthly, separation of judiciary is necessary. In order to free the judicial service from the executive control and to let it remain above the domain of political domination, it is a must.

In order to ensure access to justice, the primary emphasis should be on the informal sector and this sector needs to be strengthened. Now the basic question is how is that possible without compromising the basic human rights of the poor?

So far, the main problems of the informal sector are: it is not structured; it is biased and; it lacks accountability. People actually do not know where to go in case of seeking justice. People, on the other hand, can seek legal aid from NGOs and shalish is also arranged/conducted by them and its outcome may either be accepted or not. Within this context, we propose an integrated structure of justice institutions which will start with the traditional shalish. It will be the lower most tier of the informal sector. The justice system will be restorative and mediation will take place of arbitration. The shalishkers will be the respected or accepted persons and they will receive legal training through NGOs and/or local government.

If they fail to resolve a dispute, parties may seek justice from the UP. The UP chairman can follow the Village Court Ordinance[34], 1976 in case of a dispute resolution or can appoint someone as mediator. If a person fails to get justice here too, he will move to the next level. In this level, the mediation and/or shalish will be conducted by the NGOs. As they are already providing a parallel system of mediation that refines the basic shalish model, it is only the recognition that they need. The mediators in this case may be the trained mediators or the women mediators or the NGOs can convene a panel of mediators, which will consist of people with knowledge of women’s rights or other areas (EC, 2005). Besides, NGOs will do certain other duties. They will keep a close watch on the two tiers situated below them; they will provide legal assistance to these tiers. Besides, they will also provide the link between the informal and formal system.

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