Top Bangladesh court concerned as guidelines on disappearance, arrest flouted

M Moneruzzaman | Published: 23:56, Feb 13,2020 | Updated: 00:25, Feb 14,2020


The Appellate Division on Thursday expressed its disappointment as the law-enforcement agencies continued arresting without warrant flouting its guidelines to follow when they deal with arrest, interrogation and detention and at the disappearance of arrested persons.

Ten of the 19 guidelines are mandatory for the police and the other law-enforcement agencies while the nine other are mandatory for the judicial magistrates.

A four-judge bench, chaired by chief justice SK Sinha, pronounced a short verdict on May 24, 2016 dismissing a government appeal against a High Court judgement delivered in 2003 that issued 15-point directives regarding arrest on suspicion, interrogation and detention.

On Thursday, a six-judge bench, chaired by chief justice Syed Mahmud Hossain, while hearing a government petition seeking a review of its guidelines and directives for the police, other law-enforcement agencies and magistrates rebuked the government for the non-enforcement of the verdicts.

The bench adjourned the hearing until March 16 after attorney general Mahbubey Alam prayed for deferral of the hearing until May.

The five other judges were Justice Muhammad Imman Ali, Justice Hasan Foez Siddique, Justice Mirza Hussain Haider, Justice Abu Bakar Siddiquee and Justice Md Nuruzzaman.

The court admonished the government saying that it considered its directives and guidelines just as an ‘eyewash’ and wanted to know from the attorney general whether or not it would set aside its verdicts as the guidelines had remained unimplemented since 2003.

‘What is the benefit of giving the verdict?’ the court asked.  

‘We or our family members may be arrested on suspicion under Section 54,’ said a judge.

He said that there were examples of disappearances of arrested persons and their becoming traceless for even five long years.

‘Who will take the responsibility of these incidents? Definitely the State,’ the judge said.

The Appellate Division, however, granted the adjournment of the hearing on the review petitions asking the government to specify in the next hearing which guidelines it was opposing.

The government prayed for a review of the guideline that requires the police and the other law-enforcement agencies to inform immediately after they arrest a person and to obtain the signature of the arrested person with the date and time of the arrest.

The government also prayed for a review of another guideline that needed to note the name and address of the informants and complainants.

The government further prayed to the Appellate Division that it reviewed the guideline which required the police to inform the relatives of the arrested person within 12 hours of the arrest.

The division was also requested to review the directive to the magistrates that they could suo moto take action against law-enforcement officers concerned under Torture and Custodial Death (Prohibition) Act 2009 if any arrested person was subjected to torture and died in custody.

The attorney general opposed the guidelines on arrest and remand saying that serious crimes like raping, drug peddling and extremism could not be stopped complying with such ‘theoretical guidelines’ of the court.

Later, rights lawyer Sara Hossain told reporters that the government’s review petition against the guideline for the magistrate contradicted its Human Rights Report submitted during the UN Convention on Human Rights in 2019 which termed the Supreme Court verdict a great success for human rights.

Sara Hossain assisted Md Idrisur Rahman who appeared for Bangladesh Legal Aid and Services Trust, Ain o Salish Kendra and Shomilito Shamajik Andolon, Arun Chakrabarti’s wife Sabita Rani Chakraborti and four  others, who filed the public interest litigation writ petition.

Following that writ petition the Supreme Court issued the guidelines to be followed while making arrests and conducting interrogations.    

In 1998, the writ petition was filed after a series of custodial deaths, particularly those of Independent University student Shamim Reza Rubel, 18-year old Chattogram girl Shima Chowhury and Arun Chakraborti of Lalbagh in the Capital which shook the nation.

Rubel’s death following torture in the custody of the Detective Branch on July 23, 1998 prompted the government to institute a probe by a one-member commission of former Supreme Court judge Justice Habibur Rahman Khan.

Lawyers said that as the government showed no interest to implement the recommendations of the Justice Habibur Rahman Commission to stop custodial deaths, the petitioners came forward to jointly file the writ petition.

In 2019, at least 34 persons allegedly disappeared after being picked up by members of law-enforcement agencies.

Among them, eight were found dead, 17 shown arrested after a few days of disappearance, or surfaced alive and the whereabouts of 9 persons remain unknown.

At least 553 people became victims of enforced disappearance in the period between 2009 and 2019 and 74 of them were found dead, 312 returned alive and the whereabouts of 167 others are still unknown.

According to an Ain o Salish Kandra report, a total of 13 people became victims of enforced disappearance in 2019 allegedly after people identifying themselves as members of law-enforcement agencies picked them up.

Five of them came back and eight are still missing, the report said.

According to the Appellate Division’s guidelines and directives, no law-enforcement officer shall arrest any person on mere suspicion under CrPC Section 54 for the purpose of detention under the Special Powers Act 1974.

Recording of a first information report is a must for detaining an arrested person in the custody either of the law enforcers or in jail, according to a directive.

Law-enforcement officers must prepare ‘a memorandum of arrest’ immediately after the arrest of a person and must obtain his signature with the date and time of the arrest in the memorandum.

The court made it mandatory for the law enforcers to record in their diaries the reason for and the place and time of the arrest and the details about the complainants.

The law enforcers must disclose their identities and show their identity cards to the person to be arrested and to the people present at the time of arrest.

If a law-enforcing officer finds any mark of injury on the person arrested, s/he must record the reasons for the injury, get the person treated at the nearest hospital and obtain a certificate from the attending doctor in this regard.

The law-enforcement officer must allow the person arrested to consult a lawyer of his/her choice or to meet any of his/her nearest relations.

The magistrate shall not order the detention of a person in the judicial custody if the police forwarding the report with the arrested disclose that the arrest has been made for the purpose of preventive detention, the court directed.

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