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.