BANGLADESH: AHRC urged Bangladesh’s Parliament to legislate pending Bill on criminalisation of torture
The Asian Human Rights Commission (AHRC
) has 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:
June 18, 2010
Mr. Abdul Matin Khasru, MP
Chairman
Private Members’ Bill and Resolution
Bangladesh Parliament
Parliament Office: 241, East Block
Sher-E-Bangla Nagar, Dhaka
BANGLADESH
Tel: +880 2 8117873
Dear Chairman, Abdul Matin Khaasru:
BANGLADESH: Enactment of bill on criminalization of torture should be done as a first step to benefit the nation in the establishment of discipline
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Yours sincerely,
Basil Fernando
Director
Asian Human Rights Commission, Hong Kong
CC.
1. Mr. Saber Hossain Chowdhury, MP – the proposer of the above mentioned Bill
