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AHRC urged Bangladeshi legislators to act on pending Bill on criminalization of torture

By William Gomes
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Basil Fernando the Director of Asian Human Rights Commission had

written to the Chairperson of the Parliamentary Committee on Private

Members' Bill and Resolution, Mr. Abdul Matin Khasru, a week before

urging the Committee to fasten the pace of discussions and debates to

criminalise torture in Bangladesh. The text of the letter is

reproduced below:
Basil Fernando said I am writing this to you on the occasion of the

International Day In Support of Victims of Torture, which is observed

on 26th of June. This is an appropriate date to reflect on the

progress relating to proposed Bill before the Parliament on Torture

and Custodial Death (Prohibition) Bill-2009.
Through article 35¬¬ (5), the constitution of Bangladesh has

incorporated the prohibition against torture. Universally, torture is

considered among the worst of human rights abuses, and the right

against torture is considered an absolute right. On the 5th of October

1998, Bangladesh ratified the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

He also said that however, it is admitted by everyone that torture is

practiced very widely throughout police stations, cells of the

paramilitary forces and intelligence agencies, as well as, sometimes,

by the military in Bangladesh. The use of torture by the police is a

part of the whole criminal justice history of the country. The police

rely on confessions obtained by the use of torture as the most

important element in criminal investigations. The approach of

Bangladesh's criminal investigation system remains still in a very

primitive stage. The details about the use of torture are a matter of

factual information which is beyond controversy.
He noted that the torture should be eliminated is also a norm about

which no responsible person would argue against anymore. The question,

therefore, is as where to begin the process of elimination of torture.

Endless discussions on the desirability of the elimination of torture

or the expressions of determination of the nation to eliminate it is

of little use unless some basic steps are taken in order to

practically realize the prohibition against torture which is

incorporated into the constitution.
He shared that the former Secretary General of the United Nations

speaking about the human rights stated that the period of articulating

the basic norms of human rights has almost been completed, but that

the challenge today is about the implementation. The same principal

applies to the issue of elimination of torture. The validity of the

provisions in the Universal Declaration of Human Rights (UDHR), the

International Covenant on Civil and Political Rights (ICCPR) and in

the Convention against Torture, Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT) relating to the prohibition against

torture are not be challenged by any politician in Bangladesh. What is

lacking is the agreement about the first steps that need to be taken

for the elimination of the widespread practice of torture.

He stressed that the question before the parliament is as how to

ensure that the discussion about the elimination of torture become

credible one. Mere discussions about the states honouring the all

obligations regarding human rights in general, or regarding

elimination of torture in particular, would do little to convince the

population of Bangladesh and the international community. Some basic

practical steps have to be taken first in order to convince everyone

that the government is giving serious attention to this subject.

Therefore, the discussion about torture should centre on the practical

matters of implementation; about taking elementary first steps to

outlaw torture in Bangladesh.
He addressed that Bangladesh also faces the need to improve its

criminal justice system. It is once again not a matter of controversy

that its system is still unable to deal with the massive amount of

crimes taking place in the country, and that providing basic security

needed to the population is still a formidable task¬¬¬¬ for the

nation. Throughout the country there are complaints about frustrations

regarding the entire process of criminal justice in Bangladesh. Once

again the problem is as how to find the way to take some basic first

steps in order to deal with this enormous problem of criminal justice.

Nobody will argue that there is a trend of fabricating criminal cases,

by the police against the people, followed by the use of torture. Such

fabrications are done as attempts to create fear among the victims of

torture and put their families in the back foot. Of course, extracting

bribes from the parties involved in criminal cases remains one of the

key reasons of the police when they fabricate cases by themselves or

register such cases from other parties. Criminalization of torture

will definitely reduce the practice of fabrication of cases and, thus,

the country's criminal justice system will be less burdened with cases

that they have to handle with a limited capacity.
He noted that Without doubt the most elementary step in creating

credibility for a criminal justice system is the elimination of

torture from the process of criminal investigations. The history of

Europe clearly indicates that transition of European legal systems

into modern legal systems took place only at the point when criminal

justice system based on confessions and on torture was replaced by the

modern type of system where more rational and scientific policing take

place.
He expressed that We are fully aware that the modern policing system

creates more fear in the population than the confidence which is

needed for cooperation with the policing system. A serious crime

cannot be eliminated till the people have sufficient confidence to

approach the policing system without a sense of fear and distrust.

That such distrust exists now is quite well-known. How then is it

possible to displace this distrust and create the type of confidence

that is needed for people to come forward to make their complaints to

the police stations and to cooperate with the police in reporting

about crimes and criminal activities, and thereby give the law

enforcement authorities the necessary cooperation in order to resolve

the basic criminal justice issues?
All these matters are tied up with the very first step that the nation

needs to take for the elimination of torture. The most basic steps in

the elimination of torture are the criminalization of torture and

incorporating it as an offence recognized within the law. At the

moment there is no such law in Bangladesh. There are a few provisions

which prescribe punishments for the assault by police. However, this

limited recognition of torture is inadequate because Bangladesh has

not yet recognized torture as a crime. In the rest of the world,

torture is not only recognized as a crime but it is a crime which is

considered so hideous that universal jurisdiction is recognized in

matters relating to torture. Many nations today recognize the rights

of the courts to entertain the complaints of torture that take place

outside the national boundaries. The reason for giving such wide

liberty to the courts to deal with the issue of torture is based on

the recognition of the gravity of tortu re as a criminal offence.

He shared that Of course, mere criminalization of torture is not going

to bring about a dramatic change by way of stopping torture

altogether. However, without criminalizing torture it is not possible

to take any steps in order to eliminate it as a practice by the public

officers. As torture prohibits causing of severe pain by any public

authority, the criminalization of torture would create a serious

deterrence in the mind of any state officers, as the commission of

crime related to torture may jeopardize the possibilities of further

employment as state officers. Thus, in bringing about an atmosphere of

discipline within the state officers, outlawing torture is an

essential component.
He said It is a general complaint in Bangladesh that a standard of

discipline has deteriorated in all areas of life. When the police

practice torture, that itself is an indication of a serious lack of

discipline within police stations. It is not possible to seriously

engage in trying to improve respect for discipline throughout the

country without first of all bringing such recognition within the law

enforcement system itself. Thus, in the attempt of the state to bring

about respect for discipline and order within Bangladesh, the first

amongst the steps needed to be taken is to criminalize torture.

He also said Access to justice still remains a primary problem in

Bangladesh. It is a common public criticism among all persons,

particularly the poor, that they have no access to the institutions of

justice. The fear that people have in approaching the police prevent

people from making complaints even about serious crimes. People also

fail to give information about crimes to the police when there is

enormous fear regarding the police. Therefore, in providing access to

justice to all the people, the aspect of elimination of torture plays

a very important role. The very image of the police will change if the

prohibition against torture is incorporated into the Bangladesh law.

He stressed that Without access to justice and without elimination of

torture in police stations, the functioning of the courts in an

independent manner will be extremely difficult. It is easy enough to

recognize independence of judiciary abstractly. The actual respect for

the courts will depend on the capacity of people brings grievances to

court. This cannot happen unless the investigation into crimes takes

place properly. Fair trial is not possible without such

investigations. When the judges themselves are aware all the time of

the possibility of the use of torture by the police, they will not

have the faith in the system of justice.
Al last he urged that looking at all these considerations, the failure

of the Bangladesh government to criminalize torture so far should be

considered a very serious delay on matter of great importance. By a

quick introduction of law for elimination of torture, even in this

belated stage, the nation can have great benefits.
Basil Fernando also noted Mr. Saber Hossain Chowdhury, MP – the

proposer of the above mentioned Bill on the letter. Human rights

organization Christian Development Alternative (CDA) welcomed the

continuous works of AHRC in campaign to criminalize the torture in

Bangladesh. The organization also stressed the government to

Criminalize torture in Bangladesh.