Published in Dhaka Tribune on 8th July 2013

Law that protects: Police interrogation or unpardonable torture?

The Hollywood movie “Unthinkable” vividly portrays an interesting dilemma on the use of torture to obtain information from a person in custody. It is common belief within the police forces around the world that torture is a civil necessity and if some force is not applied, no clue can be found from hard-nut criminals.

In Bangladesh there is serious allegation against the police of using torture and often lethal force on persons detained in custody. We commonly hear rumors of physical and psychological assault, the so called “water treatment,” “shock treatment” and “egg treatment.” Those who come out of such torture usually prefer not to speak in public but close ones know and see the marks of apparent torture on their bodies.

Recently, the rates of custodial torture and death is on the rise in Bangladesh, with the courts routinely handing over detainees to police custody for torture in the guise of a legal instrument commonly referred to as "remand." But what is this remand and what is the legal basis of this term remand?

Actually, in our Criminal Procedure Code, the word "remand" is mentioned nowhere. However it is commonly understood by the magistrates and lawyers that remand is that process whereby the accused/detainee is taken into police custody and tortured to solicit information or obtain forced confession. Political leaders and activists often fall victim to this procedure of remand. So does the underprivileged members of the society. The privileged few however, use influence and money to avoid torture in remand.

Ultimately, the widespread discretionary power of the police to arrest any individual suspected of committing an offence and this power coupled with the threat of torture while in "remand" has resulted in a "racket" of corrupt police officials, extorting money from families of unfortunate victims.

If one looks at the law, it is difficult to find any legal basis for this torture in the name of remand. Custodial torture and death runs counter to the high ideals on which this nation is founded.

Article 35(5) of the Constitution gives protection to every person from being subjected to torture or cruel, inhuman or degrading punishment or treatment.

In 2003, the Supreme Court of Bangladesh in a landmark judgment (Blast v Bangladesh and Others) held that the provision of the Criminal Procedure code (sections 54 and 167) which gives the police widespread authority to arrest individuals and thereafter carry out torture in police custody in the name of remand is unconstitutional.

The court stressed that there ought to be detailed guidelines on how to conduct an interrogation of a detainee in police custody.

The court further held that failure to observe those guidelines should result in criminal charges being filed against those officers responsible for unlawful conduct. Moreover, the victim of torture is entitled to compensation for his suffering.

The Hon’ble Court observed: “The magistrate in the absence of any guideline passes ‘parrot like’ orders authorising detention in police custody which ultimately results in so many deaths and incidents of torture in police custody.”

To remedy the lapses in the existing law, the Supreme Court proposed certain modifications/amendments to the law in order to ensure proper accountability of police officials.

Unfortunately, 10 years after the deliberation of the Supreme Court, the government has made no necessary amendment to the law.

By contrast, the observation by the Supreme Court declaring the caretaker government unconstitutional gets the attention of the Parliament within days of passing a short order and the constitution gets amended at light speed. One can only infer that, the political parties whenever they assume office want to maintain the culture of inhumane policing for collateral purpose; hence the blatant disregard to a judgment of the Supreme Court.

Bangladesh is a signatory to United Nations Convention Against Torture. The Convention requires states to take effective measures to prevent torture within their borders, and forbids states to transport people to any country where there is reason to believe they will be tortured.

Unfortunately, the government has taken no visible steps to comply with its international obligation.

The government is yet to enact a law directed to end torture and inhuman or degrading treatment by law enforcers or government officials although a bill in this regard has been placed in parliament by one of its lawmakers on September 10, 2009.

In reality, paying lip service to any international obligation is unlikely to bring about any substantial change. What is needed is a political will to stop custodial torture once and for all.

Failing that determination and political will to make the police force an independent, efficient and accountable body of civil defence, all attempts to redress the current problem is bound to fail.

Published on THE PLATFORM on 29th May 2013:

Victim of the State: The Disappearance and Reappearance of Shukhoranjan Bali

The discovery of a witness of the Bangladesh International Crimes Tribunal who was allegedly abducted by authorities last year raises serious questions about due process

As elections in Bangladesh are approaching, political tensions are at their peak with the opposition party, the Bangladesh Nationalist Party (BNP), demanding free and fair elections under a ‘caretaker government’. Meanwhile, the ruling party Awami League is playing its trump card – ‘the war crimes trial’ as a means of last resort to gain some public support before it goes to the polls later this year. Despite the high voltage excitement in the political arena, one should not lose sight of the deteriorating human rights condition in Bangladesh. In particular, the rising rate of forced abductions and extra judicial killings.

According to a recent report published by Amnesty International, Bangladesh security forces perpetrated at least 30 extra-judicial killings, 10 forced disappearances and carried out widespread torture in 2012. The members of the opposition have often fallen victims to such forced abductions. On 17 April 2012, Ilias Ali, a central leader of the opposition party BNP, was allegedly abducted from the heart of Dhaka City by law enforcement officials. Earlier on 25 June 2010, Chowdhury Alam, the Dhaka City Corporation Counsellor and BNP leader was also allegedly abducted by law enforcement officers from Dhaka.

Labour leaders too are not safe from sudden abductions and unlawful execution thereafter. Aminul Islam of the Bangladesh Centre for Workers Solidarity (BCWS) went missing on 4 April 2012. An unidentified body was discovered two days later claimed by his wife to be that of Aminul Islam. It is believed that Islam was abducted by law enforcement officers and tortured thereafter. More than a year after the incident, the Police have made no headways into the investigation of the murder. Meanwhile, both Chowdhury Alam and Ilias Ali remain missing. Countless others go missing every day, neither heard nor spoken of.

The infamous ‘cross fire’ procedure is another area of grave concern. It is widely accepted that law enforcement officers often carry out cold calculated extra judicial killing only to term it as death caused by ‘cross fire’ during encounters with police officers. In many cases the deceased individuals were already in police custody before being shot dead in ‘cross fire’. With a corrupt police force, easily controlled and manipulated by the whims and desires of its political masters, the lack of accountability has resulted in a serious abuse of process, often targeted at the political opposition. The idea is simple; if there is a threat that cannot be contained politically, it ought to be exterminated by brute force in the guise of law. With a license to kill, the law enforcement forces have become an armed agent of the ruling political party, ready to carry out its dirty business.

The story of the abduction of Shukhoranjan Bali, a witness in the International Crimes Tribunal has been circulating since November 2012. He was allegedly abducted from the gates of the Tribunal as he came to testify in favour of Delwar Hossain Sayedee, a renowned cleric and a leader of the opposition party Jamaat-e-Islami. The International Crimes Tribunal is a domestic Tribunal, set up by the current Awami League regime in 2008 under the International Crimes Tribunal Act 1973 to try alleged perpetrators of war crimes in Bangladesh during its War of Independence in 1971.

Bali was initially a state (prosecution) witness against Sayedee at the International Crimes Tribunal, but became a cause of serious embarrassment for the government when he decided to change his previous statement implicating Sayedee in the murder of his brother in 1971. Instead he agreed to give evidence in favour of Sayedee claiming that the Prosecution coerced him to give false testimony against Sayedee. On 5^th November last year, as he was on his way to the tribunal to testify accompanied by Sayedee’s defense lawyers, he was allegedly abducted by law enforcement officers in plain clothes and taken away in a police van. With a biased, state censored media, the Government made sure that the Bali incident did not make much noise.

The twist to the otherwise well concealed incident dramatically came about recently when a local newspaper published a report claiming that Bali is locked up in a Kolkata prison serving a sentence of 105 days for illegally crossing borders to India. The newspapers claimed that Bali admitted he was abducted by policemen and thereafter remained in illegal detention in Dhaka for six weeks before being handed over to India’s Border Security Force near the end of December 2012. One can all but wonder what impact Bali’s statement could have made to the overall outcome of the trial of Sayedee. Earlier this year Sayedee, was sentenced to death by the International Crimes Tribunal, in part for the alleged murder of Bali’s brother.

The response of the Tribunal and the prosecution in the aftermath of Bali’s abduction raises serious questions about the credibility of the trail process. The Tribunal entirely ignored the defence counsel’s plea for a judicial investigation into the alleged incident, relying solely on the assurance of the Chief Prosecutor, that no such incident took place at the tribunal gate. The Attorney General, the highest law officer of Bangladesh ridiculed the defence counsel’s application of Habeas Corpus, before the High Court Division, calling it a mala fide application brought solely to hinder the trial process.

One should note that if it is established that Bali was in fact abducted by the law enforcement officers, the prosecution in that case have made false and misleading statements before the Court. It goes without saying it would seriously impede the credibility of the trial process, which is already under heavy criticism by several international human right organisations. Human Rights Watch, closely following the war crimes trial in Bangladesh, have expressed its concern over the Bali incident. Brad Adams, the Asia Director, stated “The apparent abduction of witness in a trial at the ICT is a cause for serious concern about the conduct of the prosecution, Judges and Government”. Moreover, Human Rights Watch considered it inappropriate that “instead of ordering an independent investigation, the Court asked a party in the case to investigate and then blithely accepted its answer.”

The onus is now on the government to investigate this matter and give a clear statement as to how and why Bali ended up in Kolkata. Bali’s safety and security is a matter of grave concern following his discovery. It is inadvisable to hand Bali to the same authority that allegedly wanted him to ‘disappear’.

The incident of Bali may have gained media attention because of the unusual sensitivity of the issue. Ultimately it may have saved his life. Unfortunately, there are many in the same situation as Bali, victims of police backed ‘abduction’ and perhaps ‘elimination’. The voices of the families of these victims never reach the international media. Human Rights organisations and journalists ought to play a greater role to ensure that the government is held accountable whenever and wherever it violates due process.