How to kill a pro-people law

There is a fundamental lack of separation of powers; and political interference from the executive has led to politically motivated decisions and lack of accountability for human rights violations, including torture, writes Saira Rahman Khan

edi01In mediaeval and early modern European courts, torture was used as a means to extract confessions or to obtain other information about a crime. Given the modern age of technology and sharing of information and news, it is common knowledge that several states today use torture or silently consent to the practice. However, with the worldwide increase of human rights awareness, few wish to be labelled, either by their own citizens or international bodies, as doing so. As a result, a variety of strategies to circumvent legal and humanitarian obligations are used by such states, including flat-out denial, ‘police duty’, ‘need to know’, ‘for interrogation purposes’ and denial that certain treatments constitute torture.
On March 5, 2009, a draft ‘Torture and Custodial Death (Prohibition) Bill 2009’, introduced by member of parliament Saber Hossain Chowdhury, was placed in the parliament as a private member’s bill. The bill defines ‘torture’ as defined in the convention against torture and also has a specific definition for ‘custodial death’, ‘victim’ and ‘law enforcement agencies’. The bill, in Section 6, allows for accusations by third parties and directs the court to ‘take appropriate measures to ensure the safety of the person making the allegation’. The bill, in Section 15, punishes torture with a minimum of five years of rigorous imprisonment and a monetary penalty of a minimum of Tk 25,000, with an additional minimum compensation of the same amount to be paid to the victim or aggrieved person/s.
In the Fourth Report of the Committee on Private Members’ Bill and Resolutions, it was stated that the bill was reviewed by the committee, with some recommendations and ‘all the honourable members… expressed their consensus on the bill titled “Torture and Custodial Death (Prohibition) Bill 2009”; and opined for the passage of this bill with amendments.’ The report further states ‘the committee is recommending the house to pass the bill with amendments.’
It was a great day for human rights activists when the government passed the bill with a voice vote in October 2013. However, there was also the doubt as to whether it would actually be possible to implement the law effectively in Bangladesh. These doubts became a reality when the news broke that the government was ruminating the idea of amending the act of 2013 — not for the benefit of the people but for the benefit of law enforcement, the perpetrators. How would such an amendment be beneficial to people of Bangladesh? Would it decrease crime? Would it speed investigations? Before we go any further, let us revisit the definition of ‘torture’.
The United Nation Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment gives a complete definition of the term ‘torture’ and as a result, the Torture and Custodial Death (Prohibition) Act 2013 maintains this definition, as Bangladesh is a state party to the convention. Basically, torture is any act that causes severe physical or mental pain or suffering; which is intentionally inflicted on a person to obtain information, a confession, or as a punishment or to intimidate him, coerce him or as a form of discrimination. This pain or suffering is inflicted by a public official or any person acting in an official capacity; or with the consent, agreement or instigation of such person. Such pain or suffering can also be inflicted by such perpetrators on a person, for intimidating a third party to make a statement or confession. Both the convention and the act of 2013 also state that acts of torture can never be justified even during a state of war, threat of war, internal political instability or any other public emergency.
So, the perpetrators of acts of torture are either public officials themselves, or those acting with the consent, agreement or instigation of public officials. Law enforcement agencies fall under the class of public officials. In Section 2, the act of 2013 defines ‘law enforcement agencies’ as the police, the Rapid Action Battalion, Border Guard Bangladesh, customs police, immigration police, members of the Criminal Investigation Department, members of both the Special Branch and the Detective Branch of the police, Ansar, VDP, the Coast Guard and all government organisation responsible for maintaining and enforcing the law. It also includes the Armed Forces and any other state units that are responsible for the protecting Bangladesh territory. It has, in effect, covered the whole spectrum of actual, possible and potential perpetrators.
There are well-documented allegations of widespread torture by law enforcement personnel as part of an established routine in Bangladesh but there is far, far too little prosecution. Is this only because we did not have a law prohibiting ‘torture’ prior to 2013? No. The constitution of the People’s Republic of Bangladesh states, in Article 35, ‘No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.’ If this is the case, then acts of cruel, degrading and inhuman treatment by law enforcement agencies could have been prosecuted as being in contravention with constitutional guarantees.
Furthermore, the Penal Code 1860 provides punishment for crimes such as assault, grievous hurt, intimidation and wrongful confinement. ‘Grievous hurt’, according to the Penal Code 1860, include the following acts: emasculation, permanent blindness of one or both eyes, permanent loss of hearing of one or both ears, privation of any member or joint, destruction or permanent privation of the power of any member or joint, permanent disfiguration of head or face, fracture or dislocation of bone or tooth, any hurt that endangers life/causes the sufferer to be in severe bodily pain for 20 days or more. All of the above may also be caused as a result of torture or acts of cruel or inhuman punishment and fall well within the international definition of torture.
In fact, many of the above-mentioned ‘grievous hurts’ — permanent loss of hearing, fracture or dislocation of bone or tooth, destruction or permanent privation of the power of any member or joint and any hurt that causes the sufferer to be in severe bodily pain for 20 days or more — are common complaints by victims of police abuse. Furthermore, the Penal Code also enhances the punishment for grievous hurt if it is done with the purpose to extract a confession or lead to the whereabouts of property. I am sure all this sounds very familiar.
What held back prosecution? First of all, criminal procedure stipulates that a public official who cannot be removed from his position without government sanction, cannot be prosecuted without government sanction either. If the act of such public servant was committed at the bidding of the government then sanction to prosecute will not be given. This has always been a point of contention. Furthermore, there is a fundamental lack of separation of powers; and political interference from the executive has led to politically motivated decisions and lack of accountability for human rights violations, including torture. Case studies show that few legal safeguards are upheld in practice, including the right of information as to the reasons for arrest, the right to legal representation, and the 24-hour time-limit for a judicial hearing after arrest. There are also cases of intimidation of the victims and witnesses and there are extreme time delays in forwarding indictments and during trial. Furthermore, the recommendations to prevent torture in remand, as stipulated in the 2003 judgement in the BLAST vs Bangladesh case have yet not been implemented. The lack of these basic safeguards is a contributing factor to torture.
Throughout the public sector there is a fundamental lack of resources, including lack of infrastructure, personnel and proper investigative equipment. Substandard conditions in places of detention, including severe overcrowding, lack of sanitation, food and drinking water as well as medical treatment amount to cruel, degrading and inhuman treatment or even torture. Furthermore, law enforcement in Bangladesh is not an independently functioning entity. The police have been used time and again by various political regimes to quell the opposition and opposition activists.
A historical study of Bangladesh politics shows that national security laws like the Special Powers Act of 1974 and the Anti-Terrorism Act 2009, which provide for extreme punishments and preventive detention, have also been abused in this regard and illegal detentions and physical abuse are common methods of harassment used against opponents of the government. Furthermore, when the law enforcement machinery breaks down for lack of discipline, corruption and manipulation, it can be said that torture, degrading treatment and impunity get life membership passes into the cells and rooms of the police stations and other places of detention. According to Sir Nigel Rodley, UN special rapporteur of the Commission on Human Rights: ‘Impunity continues to be the principal cause of the perpetuation and encouragement of human rights violations and, in particular, torture.’
According to reports, in 2010, a reported 22 people were killed because of torture at the hands of RAB and the police. In 2011, the number was 17. In 2011, a reported 38 people were tortured at the hands of the police, of which 14 later died. Between January and June 2012, a reported 45 people have allegedly been tortured by either RAB, the police or jail authorities. Of them, five later died. These figures, however, do not represent the many others who were tortured and later released or those who were tortured and later killed in so-called ‘crossfire’. Furthermore, in many of the cases, the victim and even witnesses are able to identify and name the perpetrator.
After all this, why is the government even entertaining proposed amendments to the anti-torture law of 2013? What will happen if the law is amended? In order to answer that question, let us see the proposed changes. According to The Daily Star (March 9, 2015), a public statement from Amnesty International dated March 10, 2015 and the New Age (March 21, 2015), the proposed changes come from the Bangladesh Police! According to the reports, the police submitted a proposed bill that would also justify torture committed during internal political instability or any other emergency or on the order from a superior officer or public authority. The proposal seeks the repeal of Section 12, which echoes the convention, stating ‘no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other emergency or an order from a superior officer or a public authority will be invoked as a justification of any offence under this act.’ The timing of the submission is crucial — as it is when the country is gripped in a vice-hold of violence, uncertainty and political conflict, where persecution, prosecution, arrests, torture and extrajudicial deaths are widespread. The presence of the Custodial Death and Torture (Prevention) Act 2013 has given the people the much needed opportunity to bring criminal charges against law enforcement agencies regardless of whether they will ever see any justice actually done.
Reports also state that in the proposal for changes, the police mention that the act of 2013, as it is, ‘might cause impediment to the duties of law enforcement agencies to save lives and property during political instability, arson attacks and subversive activities in hartals and blockades’. I would like to remind the reading public that since 1898 this part of the world has had in place a very big book of law called ‘The Criminal Procedure Code’, which lays down all the duties, steps and processes to be used by the police to investigate and solve a crime, to stop a riot and to maintain law and order. Nowhere in this huge tome is it mentioned that the police can resort to torture or that torturing a person arrested is part of a police officer’s duty. If the police follow this code step by step, including thorough investigation, collection of evidence, questioning of witnesses, etc, as part of its crime-solving techniques, they might just find the actual perpetrator and resist the urge to resort to torture.
Furthermore, the proposal seeks to drop RAB, the CID, the SB and the DB police from the definition of ‘law enforcement agency’. Reports show that almost all law enforcement agencies perpetrate physical and mental forms of torture. Why should there be any exceptions? If these agencies do not fall under the list of law enforcers contained in the law, it gives them more opportunity to commit the abuse. Section 4 of the act of 2013 has also been targeted by the police proposal. This section lays down that complaints of torture made to the court will be recorded at once. The proposal wants the statements to be recorded at the police station instead. I ask you: if the police are already extremely reluctant to accept and investigate general diaries and FIR regarding acts perpetrated by law enforcement officers, will they actually act upon a statement regarding an incident of torture?
If the proposed amendments are accepted by the government, what could happen? Well, for one, the main perpetrators will be immune to arrest for acts of torture — which totally defeats the purpose of the act. Secondly, torture would be a legally acceptable practice in times of political instability. Thirdly, reports of torture would not be investigated, thus exposing the statement- maker to persecution. Fourthly, keeping some agencies out of the definition of ‘law enforcement agencies’ will only encourage them to commit acts of torture as they will no longer be legally defined perpetrators. It is true that even without this law; acts amounting to torture have very, very rarely been prosecuted. However, the fact that there is a law puts checks on the perpetration of torture and makes the government accountable, and forces it to stick to its promise of ‘zero tolerance’ of torture, as claimed in front of the international community.
The recognition that torture is an unnecessary, cruel and harmful practice is not recent. The Italian thinker Cesare Beccaria, in his 1764 ‘An Essay on Crimes and Punishments’, comments on torture thus: ‘I believe it is a wilful confusion of the proper procedure, to require a man to be at once accuser and accused, in such a way that physical suffering comes to be the crucible in which truth is assayed, as if such a test could be carried out in the sufferer’s muscles and sinews. This is sure route for the acquittal of robust ruffians and the conviction of weak innocents.’
Before it makes any decision based on a proposal for changes to a law against custodial death and torture, submitted by members of law enforcement, I urge the government to rethink the purpose of this milestone piece of legislation and the far-reaching and negative impact such proposed amendments will have on a country that is a party to the convention against orture and a twice-elected member of the Human Rights Council.
Saira Rahman Khan teaches law at a private university.

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