Custodial torture and accountability

THE unspeakable violence perpetrated against a student in police custody and the subsequent punishment of a delinquent official caused by earnest efforts of civil rights bodies and proactive actions of regulatory organs once again highlights a grossly illegal and immoral deed of our law enforcement culture. Although painfully repetitive, it needs to be impressed that the practice of third degree method by law enforcement officials not only tarnishes their image but also alienates them from the public. Consequently, most people do all they can to avoid any connection with a police investigation.

In fact, one could justifiably say that whatever the wrongs which an individual might have been accused of committing, it is not for the police to punish him, for law does not give him any such power. On the contrary, the law condemns such actions as serious offences punishable under the Bangladesh Penal Code. Therefore, when a law enforcer indulges in third degree methods, he not only brutalises himself but also degrades himself to the level of a criminal and unfortunately compares even less favourably than the criminal in custody.

The act of torture by law enforcers, therefore, becomes more reprehensible than the misguided act of an ordinary criminal; and thus the commonplace pleas of expediency, protection of society or the imperative need to bring an offender to justice are but a poor argument in defense of an illegal and outmoded system. If indeed the establishment becomes the law-breaker, it breeds contempt for law and to even implicitly declare that the government may commit crime would bring terrible retribution.

Many amongst us wonder when the law itself punishes the practice of third degree torture with seven to 10 years imprisonment, why would law enforcers still take such a big risk by torturing convicts so cruelly. 

Unfortunately, in Bangladesh, ill treatment and torture at times appear to be entrenched and when one is arrested, it is assumed that he or she will be subject to abuse. For some the culture of forcibly extorting confessions is considered a normal practice. However, we have the international obligation to ban torture in our domestic law. This provision is duplicated in Article 35 (5) of our Constitution which states: "No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment".

Bangladesh has also ratified the Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment (CAT) on 5 October 1998, which codifies an absolute prohibition of torture. Article 2 (2) of the CAT reads: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture".  

On ground, some quarters are of the opinion that although the Constitution of Bangladesh expressly prohibits torture, the State fails to create a specific definition of torture and therefore allows impunity of law enforcement officials to engage in torture. There is a view that the Code of Criminal Procedure encourages a culture of impunity and protects the perpetrators of torture because no complaint can be lodged against any State official without prior approval from the government. 

Article 13 of the CAT states "that any individual who alleges he has been subjected to torture in any territory under (the) jurisdiction (of a State party) has the right to complain and to have his case promptly and impartially examined by its competent authorities". However, Section 197 of the Code of Criminal Procedure prohibits prosecutions against public official without the government's prior sanction if the offence is committed in an official capacity.

The logic underlying Section 197 is to ensure that responsible public servants are protected from motivated, vexatious and frivolous criminal proceedings while discharging their official duties. Critics say that in practice this provision has served to obstruct access to justice rather than facilitate it. In other words, Section 197 of the Code risks denying victims the right to an effective legal remedy, central to CAT.

The salutary part is that we now have the Prevention of Torture and Custodial Death Act, 2013 that applies to all law enforcement agencies and renders inadmissible various excuses for torture. So the plea of a superior's order or internal political unrest cannot be taken up by delinquent officials indulging in illegal investigation methods. The Act explicitly enables an aggrieved person to apply to the Court to contend that a fair investigation by the police is not possible. If satisfied, the Court may order a judicial investigation/enquiry. The Act has provisions of at least five years imprisonment and a Tk 25,000 fine while custodial death due to torture is punishable with life imprisonment and a fine of Tk 100,000. 

There is a considered view that wherever necessary the law has to be amended appropriately so that errant enforces who commit atrocities on people who are in their custody are not allowed to escape by reason of paucity or absence of evidence. The law as to burden of proof in such cases may have to re-examined by the legislature so that enforcers of law do not use their authority to oppress citizens. 

The crux of the subject lies in effective civil rights advocacy coupled with proactive judicial activism and also on the imperative of cultivating a scientific culture in all enforcement activities, particularly the act of investigation. The desirable and legal approach is to proceed from evidence to the accused and not the other way round. The votaries of illegal methods across the broad spectrum of our society have to be sternly stalled in public interest.   

The writer is a columnist of The Daily Star.