On October 5 1998, the government of Bangladesh, under the leadership of Sheikh Hasina, ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Ratification to any international treaty by a nation-state automatically imposes an international obligation to make domestic legislation that is in conformity with the treaty that the State is party to. Eleven years has now passed since the ratification of CAT into domestic law in Bangladesh. However, Bangladesh has not yet criminalised torture in compliance with the CAT.
Moreover, apart from Bangladesh’s international obligation as a party to CAT, the state has a mandatory constitutional obligation to protect the people from torture since the Constitution was adopted by the Parliament after independence. The Constitution of Bangladesh enshrines the citizens’ right to be protected from torture as a fundamental right in Article 35 (5).
In reality, Bangladesh has double — constitutional and international — obligations to ensure the people’s right to be free from torture, which has been endemic in the country, at the hands of the law-enforcement agencies and the security forces, for decades. Torture continues unabated in Bangladesh for many reasons. Firstly, “torture” is not defined as a crime in any of the existing laws of Bangladesh.
Secondly, the police, who operate according to the laws of the colonial era and follow the colonial training patterns and practices, apply torture as the easiest tool to extort money and confessional statements from criminal suspects or individuals that they choose to target. They also use torture to fabricate evidence as they wish. The police not only routinely deny victims of torture access to complaint mechanisms but they also fabricate criminal cases against the victims and their relatives, as well as the witnesses, in order to stigmatize the persons socially and to demoralise the community.
Thirdly, the existing laws of the Penal Code (1860) as well as the Code of Criminal Procedure (1898) have sufficient loopholes that deny the victims their right to justice regarding cases of torture.
Fourthly, criminal complaints are initially dealt with at the Magistrates Court where the prosecution is handled by the police. This helps the alleged perpetrators instead of making room for the victims or for the law to proceed unhindered. The public prosecutors, who are politically chosen by the successive ruling regimes and who appear on behalf of the State in certain cases, prefer to maintain their relationship with the police, who happen to be the perpetrators in a case of torture, in order to avoid creating any trouble for the ruling party of the government.
Fifthly, the magistrates and judges lack adequate knowledge about the consequences of torture, which creates innumerable physical and psycho-social problems followed by unavoidable financial expenditures to the victims of torture. Judges do not comprehend the systemic problems for victims of proving a case of custodial torture against the police who control the complaints procedure, the investigation and the prosecution, alongside their colleagues and friends who often are the perpetrators.
Sixthly, the leaders of the ruling political parties in Bangladesh treat members of the law-enforcement agencies as their hired musclemen. Many senior politicians belittle custodial torture by exclaiming that Bangladesh is a third world democracy which requires torture in order to control political opponents, as well as law and order. These politicians wrongly conceptualize that torture is useful for controlling crimes and alleged criminals. They overlook the reality that the police abuse their legal power as result of the absence of any functioning system of accountability before a strong and effective judiciary with capability of providing fair trial.
Such political notions discourage the political will to eradicate human rights abuses, particularly torture, in Bangladesh. In fact, the practical system neither facilitates the upholding of the due process of law nor sympathises with the victims of torture.
Bangladesh’s current government, led by the Bangladesh Awami League, promised to the people that human rights and the rule of law will be established in their country. The country’s Parliament has got an opportunity to fulfil the government’s pledge of stopping human rights abuses in the country by enacting the Torture and Custodial Death (Prohibition) Bill (2009), which was tabled in the Parliament on September 10, 2009.
The Asian Human Rights Commission (AHRC) urges the Government of Bangladesh to pass the Torture and Custodial Death (Prohibition) Bill (2009) in order to fulfil its constitutional obligation, international commitment and election pledge. The civil society of the country should raise their voice to pressurise the authorities to criminalise torture.
