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Right to Freedom from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Adeeba Aziz Khan

This chapter discusses reports of torture in custody published in the media in 2006 and the resulting measures taken to investigate such incidents or prosecute those responsible. As discussed in other chapters, extra judicial deaths by the State have occured on many occasions, even when the victim has not been in state custody. These deaths have been usually attributed to ‘cross fire’ or ‘encounter’ between the security forces and the victims. The chapter illustrates how official impunity and lapses in the legal system act as deterrents to ensuring accountability of law enforcement agencies.

International Commitments

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.”

Under international law, the right to freedom from torture is a non-derogable right; in other words, it is absolute, and exceptions to this right cannot be justified under any circumstances. Bangladesh ratified the Convention against Torture (CAT) in 1998 and the International Covenant on Civil and Political Rights (ICCPR) in 2000. Therefore, Bangladesh has international treaty obligations to prohibit torture and hold perpetrators of torture accountable. Its ratification of these instruments shows at least a nominal commitment towards the protection of its citizens from torture by state officials. However, the State’s failure to ratify the Optional Protocol to CAT and the fact that it has signed, but not yet ratified, the Statute of International Criminal Court and most important its failure, to date, to incorporate these treaty obligations into national laws, brings into question the extent of its commitment to enforce the absolute prohibition on torture. It has also entered reservation to article 14(1) of CAT, which offers a scope for the victim to obtain compensation. Although as an elected member of the Human Rights Council, Bangladesh has promised to ensure regular submission of reports to the UN Treaty Bodies, it has failed to date to submit its initial reports as required under CAT and ICCPR.

Constitutional Safeguards

The Constitution of Bangladesh provides safeguards against torture, ill treatment and arbitrary arrest. Article 11 provides that democracy, human rights, freedoms and respect for human dignity shall be fundamental principles of state policy. Article 27 establishes the right to equality before the law. Article 31 provides for protection of law, and prohibits actions not taken “in accordance with law.” Article 32 protects the right to life and personal liberty, and Article 33 provides safeguards from arbitrary arrest and detention. Article 35 provides explicitly that, “No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.”

In 2003, the High Court gave a judgment in BLAST v Bangladesh, 1 that in view of Article 35 of the Constitution, “any information which is obtained or extorted by taking an accused on remand and by applying torture, the same information cannot be considered as evidence and cannot be used against him.” In the same judgment the Court further stated that the very system of taking an accused into remand and extorting information by application of force is, “totally against the spirit and explicit provisions of the Constitution.” The judgment also made key recommendations to amend the Criminal Procedure Code so as to make it more consistent with the Constitution. The Court’s recommendations are discussed in detail below.

Legal Safeguards

Section 54 of the Code of Criminal Procedure (CrPC) allows the police to arrest any person without a warrant on the basis of reasonable suspicion of commission of an offence. However in BLAST v Bangladesh 2 the High Court recommended that the wording of Section 54 be changed from a reasonable suspicion against the accused to a definite knowledge of her/his involvement in a cognizable offence and that the police officer’s reasons for believing such complaints or information against the accused be recorded. The safeguards provided by law include that any such person must be produced before a Magistrate within 24 hours of arrest. Under Section 167 of the CrPC, although the Magistrate can allow remand if it appears that further evidence may be obtained, there are specific pre-conditions that must be met. These pre-conditions include that the Magistrate must record his reasons for authorizing remand and that any Magistrate authorizing such detention, who is not the Chief Metropolitan Magistrate, District Magistrate or Sub-divisional Magistrate shall forward a copy of his order along with his reasons, to the Magistrate to whom he is immediately subordinate. Further, the Court held that while producing a person in front of a Magistrate under Section 167, the police officer must state the reasons why investigation could not be completed within 24 hours and recommended that the Magistrate’s power to authorize detention in order to complete investigation be limited to seven days instead of fifteen days.

These legal safeguards have reportedly been routinely flouted under all administrations, and it is widely believed that the use of torture or cruel, inhuman and degrading treatment is commonplace on persons in custody. Unfortunately, all regimes have condoned torture and failed to take any action to hold those responsible to account, or to ensure effective implementation of these safeguards. Further, the failure of various administrations to ensure a real separation of the judiciary has meant that effective judicial monitoring of the treatment of persons in custody has not been put in place. At the same time, there has been little consistent action by civil society to seek the legal accountability of those responsible for torture, as opposed to simply documenting reports of its incidence. For the most part, use of illegal methods of detention and interrogation are unreported and the attitude of the judiciary has also been cautious when it comes to expanding the understanding of treatment that is prohibited as amounting to torture. In the absence of any international or regional mechanisms for individuals to make complaints of torture, victims have no recourse beyond national remedies. In most cases, the main remedies available have been disciplinary action, with prosecution and punishment being extremely rare.

Incidents of Torture in 2006

The US State Department’s Country Report on Human Rights Practices 2006 3states that in 2006, the security forces reportedly tortured 45 persons in detention, 14 of whom died. It further notes that custodial torture is frequently used for law enforcement, that the Government has rarely charged, convicted, or punished those responsible, and that this climate of impunity has allowed such police abuses to continue. Many national and local newspapers have also published reports of alleged custodial torture.

However, there is little information available as to whether any of these reports resulted in any form of further inquiry or action against those responsible. A few of the reported cases are discussed below.

  • 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. 4

  • On 30 May 2006, Boishakhi TV director, MNH Bulu, filed a criminal case against two persons, the then Housing and Public Works Minister, Mirza Abbas, and the Managing Director of another TV channel, Kazi Mohammad Shahidullah, accusing them of death threatens unless he handed over his shares of the television company to them without payment. On 31 May, two cases were filed against Bulu, one for attempted murder and the other by his former wife, accusing him of using violence to extort a dowry of Taka 20 million from her. Bulu was arrested and remanded for a day, but even after the expiry of the remand period he was detained and reportedly tortured for 24 hours. 5 On 7 June, The Daily Star reported that Bulu suffered a cardiac arrest during the hearing of his remand prayer in the Dhaka Court. His lawyers and the media consultant of BNS Group alleged that Bulu’s condition had resulted from torture by the OC and the sub-inspectors (SI) during interrogation at Motijheel Police Station. 6 It was further reported in The Daily Star that sources at the police station stated that a known associate of Mirza Khokon, the younger brother of Mirza Abbas, as well as Abbas’ private secretary, visited the police station while Bulu was in remand and asked the OC to torture him. 7 Thereafter, the OC was suspended 8 and in a rare event, the High Court asked the Government to show cause as to why the concerned police officers should not be directed to compensate Bulu. 9

It is likely that if more reports of torture in custody were brought to the attention of the judiciary, the victims could be compensated and other appropriate action also taken. However, it is not often that officials are brought to answer in any form for the use of torture in custody.

Allegations against RAB

Several incidents regarding allegations of torture or arbitrary arrest by RAB were reported in 2006. In two such incidents the High Court issued Rules to protect the rights of persons taken into custody.

  • On 15 February,10 RAB members arrested Ashraf Hossain Khan, a local AL member in Munshigonj, on suspicion of theft and took him to the RAB-8 Unit office, where he was reportedly blindfolded and beaten. Security forces reportedly, brought Khan to a field outside the town and twice threatened that they would stage a ‘crossfire’ death. The victim was released after local supporters blocked a road into town and demanded that he be let off. No charges were filed against the RAB personnel.
  • On 19 July , Kishore Kumar (32 years), a garage worker, was arrested by RAB from his house on Jail Road in Jessore Town at 9 pm, and his whereabouts were not known to his relations. The High Court Division of the Supreme Court of Bangladesh, comprising of Justice Joynul Abedin and Justice Mashuque Hosain Ahmed, issued a suo motu Rule against the Government, police and RAB on 27 July 2006 asking them to explain why they should not be directed to produce Kishore Kumar before the Court. This was the first ever suo motu Rule issued by the High Court Division against RAB, and was made on the basis of a report published in the Bangla daily Janakantha, dated 24 July, under the headline, “No whereabouts of the youth for four days after arrest by RAB in Jessore.” 11

    Human Rights and Peace for Bangladesh (HRPB), an human rights organization, appearing as intervenor in the case, submitted that despite the fact that there was a provision in the CrPC for producing a citizen before a Court within 24 hours of arrest, the police and RAB personnel had not observed this in many cases.

    The Attorney General, AJ Mohammed Ali, admitted to the Court that Kishore Kumar was arrested at midnight, on 23 July, in connection with the recovery of four bombs. This case resulted in the High Court directing law enforcers (specifically RAB) to follow the CrPC provisions in case of the arrest of any citizen.

  • 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. 12
  • 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.

Allegations against Police

  • 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.
  • 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.
  • 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’.
  • 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.
  • The Daily Star reported 13 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.14 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.15

Use of Bar Fetters

Many newspaper reports on the use of bar fetters on prisoners were not pursued and did not receive the attention of the judiciary. In this regard, the High Court’s judgment in Writ Petition No. 2852 of 1997, filed by ASK eight years ago, on behalf of Hafizur Rahman, who had been convicted in 1994 in two cases and sentenced to ten years and eight years of rigorous imprisonment, also shows an unwillingness on the part of the courts to increase the threshold of what amounts to torture. While in jail, Hafizur Rahman had been continuously confined in bar fetters, for a period of about 33 months, since 17 August 1994 until the filing of the writ petition. On 26 February 1998, the High Court issued a Rule Nisi calling upon the Government to show cause as to why the continued restraint of Hafizur Rahman should not be declared to be a violation of fundamental rights. On 18 October 2006, a division bench of the High Court, comprising of Justice Nozrul Islam Chowdhury and Justice Md. Rezaul Haque, finally disposed of the Rule stating that the persons in authority who had been responsible for the continuous confinement of the prisoner in bar fetters for a period of almost four years be brought to justice by way of appropriate departmental proceedings. The Court further stated that the laws and rules framed in connection with the imposition of bar fetters under Section 56 of the Prisons Act set very clear guidelines limiting the application of the provision and prescribing the use of bar fetters. The discretion given to the prison authorities in imposing bar fetters only upon a particular category of prisoners and upon certain criteria, was held not to be an infringement of fundamental rights.

Conclusion

The use of torture and of inhuman and degrading treatment in custody is a common occurrence in Bangladesh. 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. Impunity of State agencies has resulted in the general population having little expectation of justice, as most cases of injustice remain unreported and are not redressed.

According to a High Court judgment 15 the indiscriminate arrests and methods used to extract confessions, which are allowed to continue as a result of state impunity is equivalent to “state terrorism”. In order to stop such infringement of the most fundamental of rights it is absolutely necessary for the State to address the issue of impunity and take necessary action against the use of torture in custody.

Recommendations

  • Ratify the Optional Protocol to CAT, withdraw reservations to CAT, the ICCPR and the Rome Statute of the International Criminal Court;
  • Comply with the State’s reporting obligations under CAT and ICCPR;
  • Incorporate the State’s treaty obligations into national laws;
  • Enforce the fundamental rights guaranteed in Articles 27, 31, 32, 33 and 35 of the Constitution;
  • Address the issue of impunity and take necessary action against the use of torture in custody.
  • Implement the judgments given by the Supreme Court;
  • Establish a National Human Rights Commission as an independent body for addressing human rights violations;
  • Investigate incidents of torture and prosecute perpetrators;
  • Enable the media and human rights defenders to play a more active role in drawing attention to the State’s continued failure to prevent custodial torture, to monitor and document incidents of torture by state agencies and challenge such acts legally;
  • Sensitize law enforcement agencies and mobilize public support against the use of custodial torture by state officials.

Notes

1. BLAST v Bangladesh , 55 DLR (2003) 363.
2. Ibid.
3. US State Department’s Country Report on Human Rights Practices 2006, released by the Bureau of Democracy, Human Rights and Labor on 6 March, 2007.
4. New Age , 22 May 2006, The Daily Star , 27, 30 May and 4 June, 2006.
5. The Daily Star, 8 June, 2006.
6. Ibid.
7. I bid.
8. I bid.
9. Ibid., 12 June, 2006.
10. US State Department: Country Report, 2006 .
11. The Daily Star , 28 July, 2006.
12. New Age , 7 August, 2006. Also see Chapter 3, p.39.
13. The Daily Star , 3 October, 2006.
14. Ibid ., 4 October, 2006.
15. Ibid. , 9 October, 2006.
16. Saifuzzaman v State , 56 DLR (2004) 324.