Swimming across the most vulnerable and exploited time of the history, the Democracy of Bangladesh is now seeing its people cruelly tortured and even dying in police custody, in the name of so called “investigation”. A large number if people had already suffered severely from this agony for a time being, but the spotlight has now come upon the ugly truth of Police administration when prominent journalist Mahmudur Rahman, eminent religious scholar Allama Junayed Babunagari and president of the most active student organization of Bangladesh (Shibir) Delawar Hossain were tortured beyond any humane limit. Two of them had to take medical attention from the Intensive Care Unit (ICU) of the Hospitals and even underwent to Life Support. Other one (Delawar) is still not given any proper treatment though he is now half paralyzed from the brutality. It may seem impossible to imagine but this is happening right now in Bangladesh.
Increasingly, the magistracy controlled by the executives becomes insensitive to civil liberties. Continuous denial of bails, indiscriminate granting of police remand, the torture of person arrested in police custody creates genuine concerns. What a number of advocates of Bangladesh Supreme Court told in a recently held Bar Council seminar organized for the new entrants to legal profession clearly reflects the situation. “The Magistracy virtually turns into an extension of the Police. In earlier days, magistracy was not so; magistrates were the real friends of the people whose liberties were at stake. The situation is getting worst.” Apart from that, the gross politicization of both Executive and Magistracy has become the prime concern for everyone, especially for the people pr groups who holds the dissenting views than the ruling party.
01. Mahmudur Rahman – The Detained and Tortured Editor
Mahmudur Rahman was arrested at his office on 11 April 2013 after the newspaper he works for, Amar Desh, published articles that criticized the government and some bloggers whose comments were perceived to be blasphemous. Amar Desh, a very popular Bangla newspaper is linked to the opposition Bangladesh Nationalist Party. After his arrest, on 12 April he was remanded into police custody for 13 days. Since 11 April, the government has sealed and closed the printing press of the Amardesh Publications. Rahman is arrested on three separate charges. The first case, of sedition, is lodged by a prosecutor of the “International Crimes Tribunal” (ICT) at the Tejgaon Police Station in Dhaka, accusing Rahman for reproducing a Skype conversation between a Judge of the ICT and a person living abroad concerning an ongoing trial. The Tejgaon police, accusing Rahman, that he destroyed vehicles on the road, lodged the second case. Interestingly, Rahman was in police custody, on the day he was accused of having destroyed property. The third case against Rahman is accusing him, of having published an unverified letter along with a photograph. It is trite to argue that none of these charges stands a chance in a trial, if the trial is impartial.
He was tortured severely in custody, and to add mental pressure upon the physical agony, a case was filed against his ailing mother who had nothing to do with any business of the Govt. or politics or whatsoever. In protest, already ill Mahmudur Rahman started hunger strike till death until the cases filed against his Mother and some of the Newspaper staffs were revoked. However, after 8 days of Hunger Strike, he broke the fast upon the request of Allama Shafi, the supreme leader of Hefazat-e-Islam. Human Rights activists like Amnesty International and Asian Human Rights Commission issued statements requesting to take immediate steps to save his life. Mahmudur Rahman has been previously detained and tortured for publishing articles critical of the current Awami League government.
On 18 April, a writ petition was filed at a High Court Bench challenging the order of sending Rahman in police remand. Rahman’s lawyers allege that placing Rahman in police remand without adequate measures in place to ensure the detainee’s physical health, violates the High Court’s directives concerning under trial detention. According to the High Court’s directives, every detainee has a right to be examined by a qualified medical practitioner prior to remand custody and for regular medical examinations, periodically, during the entire period of detention. The person is also entitled for a medical examination, before release. But despite all legal, humanitarian approaches, Mahmudur Rahman is still behind the bars.
02. Allama Junaed Babunagari – The Popular Cleric in life support after brutal custodial torture
Hefajat leader Allama Junaed Babu Nagri was arrested by the Detective Branch of Dhaka Metropolitan Police from Lalbagh Shahi Mosque in the capital on May 6, just after the massacre at Motijheel killing hundreds of Islamist protesters. A total of 26 cases were filed with Paltan and Motijheel police stations over the violence during the May 5 Dhaka siege programme of Hefajat-e-Islam Bangladesh. Babunagri was made accused in 11 of the cases, including a police killing one.
He was placed on a nine-day police remand on May 7 in each of two cases, including the sub-inspector Shahjahan Shikder killing one. The remand over, the Hefajat leader was taken on another 22-day remand in three cases on May 16. During this total remand period, he was brutally tortured in custody and then sent to jail on May 21 after he made a confessional statement before a magistrate of Dhaka CMM court disclosing that activists of Jamaat-e-Islami and Islami Chhatra Shibir tried to use the party’s May 5 Shapla Chattar rally for ousting the government. It is obvious that those statements were taken by compelling him to do so, using barbaric methods of torture.
Junayed Babu Nagri – During Arrest & After Severe Torture
However, he was shifted to the Intensive Care Unit (ICU) of Birdem Hospital as his condition deteriorated following a leg surgery on Tuesday afternoon. Extreme levels of blood sugar and kidney failure along with the injured knees and legs from tortures made his condition so severe that he had to go under life support at the ICU. To shift the burden of his imminent death, Govt. took a new action; Metropolitan Magistrate Shahriar Mahmud hastily passed the order of bail in all three cases and ordered to set him at liberty.
03. Delawar Hossain – A popular young leader now Half Paralyzed
Delwar Hossain Saidy is a brilliant student and the president of largest Islamic student organisation in Bangladesh name Islami Chattra Shibir (ICS). He is leading the organization in a time when whole country experiencing government intimidation, brutality, massacre and Genocide, mostly because of their opposition to government.
Delwar – During Arrest & after severe Torture
He was arrested March 31, 2013 form his relatives house in Dhaka. Newspapers report that police has prepared around 350 cases against him to file. According to the order of the government, law enforcing members have remanded this popular students’ leader for 45 days in 5 stages. He was torturing using the barbaric medieval techniques. He was so severely tortured that he couldn’t walk by himself to the court from the prison van. Despite worst condition of his body, court again granted the remand appeal of the police for 18 days. As like Guantanamo, he was tortured tying his hands, legs and eyes keeping in the unknown place. His nails of hands and legs have been rooted out. Even so, no treatment facility has been given to this popular leader. This despotic government has making a blue print to disable him to death amid torture.
Unconscious and paralyzed, yet Leg Chained
So far, Delawar Hossain Saidy has fulfilled over two months (60+ Days) in police remand which is unparallel to any other accused of Bangladesh. Yet, he si in custody and no proper Medical attention is provided to him yet. This is the present Bangladesh, this is the scenario of Rule of Justice and Democracy in Bangladesh.
Legal Protections against Torture in Remand and Custody
Bangladesh has 629 police stations. Torture is practiced as a routine in all of these police stations. It is an accepted means of maintaining law and order, investigation and extorting money by the police. Even if it is assumed that only a single person per day is tortured in the country per station, an alarming number of 229,585 persons are being tortured in Bangladesh every year. This figure excludes those victims who are tortured outside the police stations or other detention centers.
Even worse, police is not the only state agency that routinely practices torture. Paramilitary forces like the Rapid Action Battalion, the armed forces, the border security forces, the intelligence agencies like the Directorate General of Forces Intelligence (DGFI) and special cells such as the Task Force for Interrogation (widely known as TFI Cell) and the Joint Interrogation Cell (JIC) created by the government, also practice torture. The TFI and the JIC, by their very nature of the mandate are professionally trained to extract confessions from detainees, for which torture is the most common tool.
The Contrast – Before & After Severe Torture
i. On the Convention against torture:
Bangladesh ratified the Convention Against Torture (CAT) on 5 October 1998. Even after a decade the country still does not have any specific law criminalizing torture. Bangladesh has not ratified the Optional Protocol of the CAT.
A draft Bill for criminalizing Torture and Custodial Death, which was prepared in compliance with the mandates of the CAT, was submitted to the Parliament as a Private Member’s Bill by Mr. Saber Hossain Chowdhury (MP) on 5 March 2009. The Bill has primarily been reviewed by the Private Member’s Bill Review Committee led by the former Law Minister Mr. Abdul Matin Khasru (MP), a lawyer of the Supreme Court of Bangladesh. But four years had been passed since then, it has no advancements.
ii. On the existing domestic law:
The right against torture is a fundamental right under Article 35 (5) of the Constitution of Bangladesh, which reads “No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment”. Ironically, Article 46 of the Constitution empowers the State to provide impunity to the perpetrators.
In reality, torture is not a punishable crime in the domestic laws of Bangladesh. The Penal Code of 1860 penalizes offences relating to causing hurt or wrongful confinement to extract confession. However, these provisions do not meet the standards of the CAT or define ‘torture’ as a crime.
In contrast, the provisions of the Code of Criminal Procedure, 1898 protects the public servants such as police officers from prosecution unless prior approval from the government is obtained. According to the current interpretation of these provisions, the courts refuse to take cognizance of crimes committed by state agents without the prior approval of the state. This reflects the moral as well as jurisprudential deficit of the judiciary in the country.
In addition, until recently the subordinate judiciary of Bangladesh, which includes the Magistrates’ and the Sessions Judges’ courts had been under the control of the Ministry of Home Affairs and the Ministry of Law, Justice and Parliamentary Affairs. This subjugated the judiciary to such an extent that even after the change of circumstances the judicial officers behave as if they are not accountable to a superior court, but to a government officer. The temporal framework of the subordinate judiciary is still that they believe that they are part of the executive, but not the judiciary. This cuts the root of the impartiality quotient of the subordinate judiciary in the country. In addition, the process for complaints, investigation and prosecution of cases involving allegations against state agents is almost impossible in the country.
Custodial Torture has become a daily routine in some places
iii. The Safeguard against Torture ~ Supreme Court Directives given in BLAST vs. Bangladesh (55 DLR 363)
In the Writ petition No. 3806/1998 regarding the killing of the meritorious student Rubel popularly known as BLAST case filed by the Bangladesh Legal Aid and Services Trust (BLAST) on 07 April, 2003 a bench of High Court Division of the Bangladesh Supreme Court comprising Justice Md. Hamidul Haque and Justice Salma Masud Chowdhury pass an epoch making judgment regarding section no. 54 of the criminal Procedure Code relating to arrest on suspicion and for amendment of Section no. 167 of Cr. P.C regarding police remand and directed the government for amending the relevant act. Simultaneously High Court opined to abide by some specific guide lines in these two cases until the time of promulgation of new act.
In the direction given by the court mainly two recommendations have been made. firstly, in it has been said to add sub-Section (2) to the section no. 54 of the Cr. P. C and amend sub section (3), (4) and (5) of Section no. 167 of Cr.P.C Simultaneously it has been said to increase the extent of the awarded punishment under the section 220 and 348 of the penal code by making amendment of these to section.
Guideline given in the case of Section no. 54 of the criminal Procedure Code includes- for arresting any person under this section, after expressing their own identity that matter shall have to be informed to his close relative. And it has been said that if arrest is done from the road, then for what cause the arrested person has been arrested that shall have to be informed within three hours.
In special case of arrest, medical checkup shall have to be done immediately after the arrest. The court also recommended that, if there shall have any mark of injury on the body of the arrested person, then the relevant police officer shall record the matter properly and if there shall not be any proper cause, order of detention shall not be given after arrest under section no. 54 of the Criminal Procedure Code.
Above all, Metropolitan Sessions Judge or Sessions Judge shall ensure the order of remand. Arrested persons shall have the opportunity of opposing or objecting in there also. For giving remand in this case medical cheek up shall have to be done instantaneously and if the arrested person shall complain about torture after completion of remand, then medical cheek up shall have to be done again. If the doctor (Physician) shall become sure about torture, Magistrate shall take lawful measure against the investigation officer immediately without any formal petition.
The court further mentioned that, if there shall be requirement of interrogation of someone, then interrogation of the arrested person of a jail shall have to be done in a glass room in presence of advocate appointed by him and his relatives. So that in the interest of the investigation relatives and advocate of the arrested person shall not hear any question-answer. But they may observe on the matter whether or not any torture is inflicted. But we did not follow the above mentioned direction.
The alarming trend of torture the hands of the law enforcers in Bangladesh exposes once again its inherent tendency of being viewed with a philosophy of paramilitarism associated with the mechanism of awe, threat and coercion. The culture of impunity endorses the existing trend and protects the culprits from being prosecuted. It encourages others to follow the suit, as the criminal justice system is open to manipulation by the agencies. The Supreme Court, as usual, remains the key institution for the protection of human rights of the bewildered. The traditional conservative doctrine of judicial restraint poses a serious threat to liberty, and is therefore not consistent with the fundamental objective of the framers of the Constitution of the People’s Republic of Bangladesh.
The need of the hour is an organizational culture that condemns abuse of power and misuse of force and encourages pro people policing. All those who are concerned with the arrest, detention, and custody of the people, particularly of the poor and vulnerable sections of the society, must strictly implement the constitutional and legal protections and safeguards. It is necessary that the guardians of law and the custodians of lock-ups and prison houses should be made aware of the constitutional and legal rights of the people. For Bangladesh, an activist, goal oriented judiciary can limit the scope of executive arbitrariness ensure the implementation of its dictates.
Apart from that, the over-politicization and abusing the Executive power with political vindication will keep destroying the structures of Administration of Justice from the inside. To build the better Bangladesh with a better Democracy, everyone must stand up and step forward to stop this colonial attitude and medieval malpractices in every sphere.