Magistrates must act

The Supreme Court has directed magistrates to take action against errant police officers whenever they find infringement of the law against torture and death in police custody.

Amid widespread allegations of police torture, parliament in 2013 enacted the "Torture and Custodial Death (Prevention) Act", prohibiting both mental and physical torture in any situation and custodial death.

But there has been little application of the law which in view of the apex court is one of the finest laws in the country.

"It is only the magistrates who can ensure its [anti-torture law] enforceability and see that this piece of legislation does not remain in the statute [book] only," said the SC.

"The magistrates shall not remain as silent spectators whenever they find infringement of this law and shall take legal steps against errant officers." 

The SC has come up with the directives in its full verdict on the arbitrary use of powers by the law enforcement agencies. The copy of the judgement was released on Thursday.

The law was enacted three years ago. But torture by law enforcement agencies and custodial death didn't stop, as records of Ain O Salish Kendra (ASK), a human rights body, show at least 126 people died in custody till September this year from January last year.

The law prohibits torture by law enforcement agencies even in an emergency situation.

Section 12 of the law says if a person commits any offence during the period of preparation of war, threat of war, internal political stability, or emergency or orders of superior authority or government, it will not be acceptable.

"The court is under no obligation to accept any sort of excuse and the offender shall be dealt with according to law. This provision is very important but practically we find no application of this section," observed the SC.

According to Section 15 of the law, the minimum punishment will not be less than five years and the maximum sentence is life imprisonment with a fine for crimes committed under this law.

Lack of effective enforcement of the law saw recurrence of custodial deaths, many of which were blamed on alleged torture by law enforcement agencies.

According to ASK, 57 people died in custody from January to September this year. Of them, 23 were convicted and 34 were detainees.

Last year, the number of custodial death was 69, and of them, 42 were facing trial, according to ASK's record prepared on the basis of newspaper reports.

Moreover, a section of lower-tier police officers were accused of engaging in extortion by threatening people with cases.

Since December last year, more than a dozen such cases were reported in Dhaka Metropolitan Police area alone, according to a Daily Star report published yesterday.

Had the law been enforced properly, incidents of torture and custodial death would have reduced, according to legal experts.

Asked about little application of the law, jurist Shahdeen Malik said this law is not widely known.

"Besides, people are too scared to file cases against police," he said.

In its verdict in May, the Appellate Division of the SC upheld a High Court judgment against law enforcers' arbitrary use of powers and stressed the need for application of the anti-torture law.

The HC delivered the verdict on April 7, 2003, in response to a petition by a group of human rights organisations and individuals after the tragic death of Shamim Reza Rubel, a student of Independent University, in police custody on July 23, 1998.

The then BNP-led government appealed against the verdict, and later the AL government did the same.

But the SC dismissed the appeal.

The anti-torture law was made after one and a half decade of Rubel's death in police custody.

The SC highly lauded the law, saying, "This is one of the finest piece of legislation so far promulgated after the independence of the country." 

It reflects the aims, aspirations and objects of our founding fathers while framing the constitution, the apex court noted.

"By this law, the safeguards of human dignity, personal liberty, undue harassment and torture of a detainee at the hands of law enforcing agency, deprivation of life and liberty, honour and dignity, and also payment of compensation to the victim's family have been protected."

In its 2003 verdict, the HC recommended bringing changes to some provisions of the Code of Criminal Procedure (CrPC), Penal Code and Police Act for preventing custodial death.

The SC, however, sees no necessity for bringing those amendments after the enactment of the anti-torture law in 2013 which deals with custodial death.

Referring to the provision of the anti-torture law, the SC directed that if a magistrate gets materials or information that a person has been subjected to torture or died in custody, he would refer the victim to the nearest doctor in case of torture. The magistrate would refer the matter to a medical board in case of death for ascertaining the injury or the cause of death.

"If the medical evidence reveals that the person detained has been tortured or died due to torture, the magistrate shall take cognisance of the offence suo-moto under section 190(1)(c) of the Code without awaiting the filing of a case," said the SC. 

It pointed out that previously there was no safeguard of a detainee. "The court should not take such violation of human rights lightly and no leniency should be shown to such officer."

POLICE SOUGHT CHANGES IN LAW

In 2015, police submitted proposals to the home ministry for bringing major changes to the law, and sought safeguard for law enforcers from prosecution for custodial death and torture under this law.

Police wanted the Rapid Action Battalion (Rab), the Criminal Investigation Department (CID), the Special Branch (SB) and the Detective Branch (DB) of police excluded from the purview of the anti-torture law.

Police have sought cancellation of a legal provision that bars them from justifying torture and inhuman treatment of anyone in custody even in circumstances like war and political unrest.

In defence of the proposed changes, police argued that the law might cause impediment to the duties of law enforcement agencies to save lives and property during political instability, arson attacks and subversive activities during hartals and blockade.

The home ministry formed a committee to scrutinise the proposals and made a move to bring amendments. 

At that time, rights organisations, including Amnesty International and ASK, expressed deep concern, and denounced the government move and the police demand.

They said the government enacted the law criminalising custodial torture in accordance with the UN Convention against torture and other cruel, inhuman or degrading treatment or punishment.

Bangladesh became a signatory to the convention on October 5, 1998, promising effective legislation, and administrative and judicial measures to prevent torture.

Article 35 (5) of Bangladesh constitution also prohibits torture. It reads, "No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment."