Law Letter
Criminalise torture
We perceive rule of law as a system in which no one, including government, is above the law; where laws protect fundamental rights; and where justice is accessible to all. These high sounding words defining rule of law are throttled down when law is used to violate the fundamental rights of citizens. In course of time, a general predisposition has been fashioned among our law enforcing agencies that they are beyond law. Thus, they love to abuse law. This has given them the habit of resorting to ill-treatment for no reasons while carrying out their responsibilities. This phenomenon is not something peculiar to Bangladesh; rather this is a visible practice in many parts of the world. But, the extent of such torture and degrading treatment under custody is alarmingly increasing in Bangladesh over the last few years. The causes are manifold; out of political grudge and animosity the vested quarters blatantly use Police or paramilitary force like RAB to arrest and torture any person with the object of vindicating their interests. In addition, law enforcers themselves commit this unscrupulous act for money and most often offer release on condition of a heavy amount of ransom. As a result, the general people by and large getting victimised owing to the abuse of such unbridled power by the law enforcers.
While talking about custodial torture, the first thing comes out of mind is section 54 of our Criminal Procedure Code which over empowers the police to arrest a person, suspected to be involved in any cognizable offence, without the warrant of court. This section is the handiest tool routinely in use by our law enforcers especially Police and RAB. Moreover, section 167 coupled with section 54 provide police the room for inflicting torture in order to extract information from the arrested person. While, article 35(5) of Bangladesh constitution stipulates that “no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment”. Any kind of torture and inhuman treatment under police custody is, therefore, a clear violation of fundamental human rights guaranteed under the constitution. Similarly, International Covenant on Civil and Political Rights and Convention against Torture respectively prohibited torture. Article 2 of the Convention against Torture says that “each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture. The prohibition against torture shall be absolute and shall be upheld also in a state of war and in other exceptional circumstances”. Being a party to this significant human rights instrument, Bangladesh is under an international obligation to protect the rights of its citizens against torture.
Though, to put an end to this culture of custodial torture, High Court Division of the Bangladesh Supreme Court rendered a ground breaking verdict, in BLAST v. Bangladesh (2003), setting out the procedures to be followed while arrest without warrant and subsequent interrogation under Criminal Procedure Code, but in practice those directions still remain unheeded during the time of arrest and investigation. To this end, yet no step is taken by the government to effectuate the directives issued by the apex court. Despite this ongoing practice of torture under custody, culture of impunity seems to have been patronised by the successive governments for long.
To give effect to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and for matters connected therewith or incidental thereto, a Private Member's Bill was tabled in the parliament on 10th September 2009, but the irony of fate is that the Bill did not see the day light at last. Although, some changes were made to our Criminal Procedure Code in 2010, but the draconian sections (section 54 &167) giving the scope for such torture remained untouched.
Practically, torture is not yet designated as a punishable offence in Bangladesh. However, the Penal Code of 1860 (sections 330, 331 and 348) punishes offences relating to causing of hurt or wrongful confinement for the purpose of extracting confessions, but these provisions do not delineate torture as a crime or meet up the standards set out in the Convention Against Torture. Many countries have dragged torture under legislative framework and made it punishable. For instance, with regard to the punishment of those committing torture, article 125 of the Criminal Act of South Korea states that those who commit “an act of violence or cruelty against a criminal suspect or against another person while in the performance of his duties shall be punished by imprisonment of not more than five years and suspension of qualifications for not more than ten years”. The Act on the Aggravated Punishment of Specific Crimes further punishes public officials for acts of illegal arrest, detention, violence and cruelty. Likewise, Act No. 22 of 1994 in Sri Lanka makes torture and other cruel, inhuman or degrading treatment or punishment a criminal offence, punishable with a mandatory sentence of seven years of rigorous imprisonment and a fine of Rs 10,000.In Sri Lanka, there have been many examples of filing cases against police officers and others under this law and many officers have been found guilty and executed accordingly.
Therefore, due to the absence of any specific legislation providing punishment for torture in Bangladesh, the victims of torture are often denied access to justice. Disappointingly, the continued practice of torture with impunity has entrenched fear among the citizens. Hence, enacting a law criminalising torture and incorporating the accountability provisions for the law enforcers is now a pressing demand of time.
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