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