Bangladesh Jurisprudence Resources

Bangladesh’s anti-torture law – an analysis by ACHR, July 2018

The Government of Bangladesh ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in 1998 but it has refused to ratify the Optional Protocol to the UNCAT. It has enacted the Torture and Custodial Death (Prevention) Act, 2013 “with a view to giving effect to the provisions of the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 1984”[1]. The Act was passed in November 2013 following demands by rights groups and concerned politicians to outlaw torture and custodial death and address widespread impunity enjoyed by law enforcers. The Act, however, originated from a private member’s bill tabled by a lawmaker from ruling Awami League, Saber Hossain Chowdhury who was brutally tortured in custody when he was in opposition.[2]

Article 35 of the Bangladesh Constitution prohibits torture but it is for the first time “torture” has been defined in the Torture and Custodial Death (Prevention) Act 2013.[3] Section 2(6) of the Act defines “Torture” as follows

“(6) “Torture” means any physical or psychological torture that hurts;

Besides the following acts will considered as torture –
(A) Extorting any information or confession from the person or any other person;

(B) Punishing any suspected person or any offender

(C) Intimidating any person or any other person through him

(D) Any work done on a discriminatory basis, in each case, act done with someone’s provocation, with someone’s consent or by dint of the power of any government officer or government power.”

The Act also defines “custodial death”’ in section 2(7) to mean “death of any person in the custody of any government official, beside this, “custody” will also mean illegal detention order or a death during an arrest by law enforcing agency, custodial deaths will also include death during interrogation, regardless of whether the person is a witness of the case or not.”

Section 2(4) of the Torture and Custodial Death (Prevention) Act, 2013 defines “Law Enforcement Agencies” as “(4) “Law enforcement agencies” means the law enforcement agencies of the country including the Police, Rapid Action Battalion, Border Guard Bangladesh, Customs, Immigration, Crime Investigation Department (CID), Special Branch, Detective Branch, Ansar VDP and Coast Guard”.

Section 3 states that if there is any conflict with any other law in force, the provisions of this Act will get precedence. No exceptional circumstances including a state of war or threat of war, internal political instability or any other public emergency, or order from a higher official or government authority may be invoked to justify an act of torture.[4]

Investigation of the allegation of torture

Section 4 provides that notwithstanding anything contained in the Code of Criminal Procedure 1898, if a person brought before a court complains that she/he has been tortured, the court will (a) immediately record the statement of the person, (b) order that a physical examination of the person be conducted by a registered doctor, and (c) if the complainant is female then the court will make arrangements to get her examined by a female doctor. Within 24 hours of court’s order, the doctor will prepare a report with detailed description of the injuries and signs of torture found on the body of the person and the approximate time of torture. A copy of the report will be given to the court as well as to the complainant or any person nominated by him/her. If the doctor prescribes that the person needs treatment, the judicial officer will direct that person be admitted into a hospital.

Section 6 of the Act also allows a third party who is a witness of torture to file complaint before the court and if the court feels necessary the court may visit the place of the incident. The court shall ensure protection of the witness.

Section 10(1) states that all offences under this Act shall be cognizable, non-compoundable and non-bailable and bail matters will be decided by the court after proper scrutiny of the case.

Section 5(5) provides that the court shall direct a police officer whose rank is not less than that of the accused person to investigate a complaint of torture brought before it. But if the victim/aggrieved person feels that it would not be possible for the police to conduct a proper investigation, he/she may submit an application to the court and the court can order a judicial investigation[5]. The investigation must be completed within 90 working days[6] and in case of delay the investigation officer shall explain the reason before the court by being present in person. After hearing the victim/aggrieved person/persons, the court, shall settle the matter of time extension within 30 days. While submitting the report the investigating officer or judicial investigating officer, as the case may be, shall have to inform the court that the complainant has been provided a copy of the report[7] and the complainant can oppose the report within 30 days of submission of the report. [8]

Trial of the offence of torture

The trial of any offence committed under this Act shall be held only at the court of sessions judge[9]. The trial must be completed within 180 days of filing the case[10]. If the trial is delayed beyond this period, the trial must be completed within the next 30 days[11]. In relation to appeals, those convicted under this Act may appeal against conviction to the High Court Division subject to the deposit of fine and compensation within 14 days of the judgement.[12] The aggrieved person can also seek appeal and review in the higher courts.

Protection of Complainant/victim

Section 11 of the Act provides for mechanism for the protection of the complainant/victim, under which he/she can file a petition to the sessions court to seek protection from the accused. On receipt of the petition, the court after giving 7 days notice to the accused/respondents, shall issue an order on the petition within 14 days. If necessary, the court may order detention of the accused for at least seven days. The court also may take special measures to transfer the court and may prohibit the accused from entering a particular area.

Punishment under the Act

The punishment for torture under this Act is either rigorous imprisonment for a period not less than five years, or fine of minimum fifty thousand Taka, or both and the convict shall pay additional twenty five thousand Taka to the victim/aggrieved person/persons [clause (1) of section 15] if the torture results in death, then the punishment is up to imprisonment for life, or fine of not less than one lakh (100,000) Taka or both and the torturer shall pay additional two lakh (200,000) Taka to the victim/aggrieved person/persons [clause (2) of section 15]. Those who attempt to commit or assist or provoke torture, or conspire in committing torture, may face punishment of two years rigorous imprisonment, or a fine of a minimum of twenty thousand Taka, or both [clause (3) of section 15]. In all the cases, the fine must be submitted to the trial court within 14 days from day of conviction, else no appeal can be filed under this Act [clause (4) of section 15]. Section 16 states that an appeal against the order of the trial court can be filed before the High Court.

Despite adoption of the Torture and Custodial Death (Prevention) Act, 2013, human rights organizations and UN Human Rights Committee found torture to be “widespread” in Bangladesh. According to prominent human rights organization, the Odhikar, since the anti-torture law came into force, at least 59 persons have been tortured to death by the law enforcement agencies from 2014 to May 2018, including 45 tortured to death by police, five by Rapid Action Battalion (RAB), two each by Army and Detective Branch of Police, four by Border Guards Bangladesh and one by Railway Police.[13] In addition, at least 125 persons have been subjected to various forms of torture by the law enforcement agencies from 2014 to May 2018.[14] Further, a total of 913 persons have been extrajudicially killed, many of them tortured, during 2014-May 2018, as per the data maintained by the Odhikar.[15] A total of 261 prisoners (both convicted and undertrial) died in judicial custody from 2014 to May 2018, many of whom may have been subjected to torture.[16]

Torture continues in Bangladesh unabated. The Odhikar in its report “Half-yearly Human Rights Monitoring Report, January – June 2018” stated, “The government is suppressing political opponents by using members of law enforcement agencies; and as a result such agencies are enjoying impunity. From January to June 2018, allegations of arrest, harassment, extortion and torture and killing of the opposition political party leaders-activists and ordinary people were found against the members of law enforcement agencies. It has been proved that incidents of death of detained persons occur in custody due to torture and ill-treatment in police remand. The Torture and Custodial Death (Prevention) Act, 2013 was passed after relentless demands from human rights defenders. However, a vast majority of the torture victims and family members are not able to file any cases under this Act due to fear of reprisals; and those cases that have been filed are yet to see light in the court.”[17]

On 6 February 2018, police arrested a former President of Ward unit Chhatra Dal, Md Nader in a case filed under the Explosive Act with Bongshal Police Station in Dhaka in December 2017. There were allegations that police broke his arms while he was tortured in custody. On 7 February 2018, police produced Nader before the Court with bandaged arm and sought for a 7-day remand. Md Nader alleged in the court that police beat him and broke his arms.[18]

On 6 March 2018, police arrested the Vice-President of Dhaka City (North) unit Chhatra Dal, Zakir Hossain, in front of the National Press Club while he was returning from a rally demanding the release of BNP Chairperson Khaleda Zia and on 12 March, he died at Dhaka Medial College Hospital due to brutal torture during remand in DB Police custody. Zakir’s family members alleged that he died due to brutal torture in remand. Zakir’s sister Sultana Razia said that her brother had been in good health before he was arrested.[19]

On 6 May 2018, a team of Dhaka Metropolitan Detective Branch of Police (West) led by Inspector Mahbub, brought Ashraf Ali (45), a driver, to Dhaka Medical College Hospital, who was in their custody. Doctors at the hospital declared him dead. Police claimed that he was arrested in an investigation into an incident of a missing expatriate person. There were marks of injury on different parts of deceased’s body. The Head of Forensic Department of Dhaka Medical College Hospital, Sohel Mahmud said that marks of injury were found on deceased’s legs. Ashraf’s wife Nasima Akhter told Odhikar that her husband died due to torture in DB Police custody.[20]

The UN Human Rights Committee in its concluding observations (CCPR/C/BGD/CO/1), adopted on 22 March 2017, on the initial report of Bangladesh on the International Covenant on Civil and Political Rights expressed concerns that “in the light of information that torture and ill-treatment by law enforcement or military personnel is widespread in the State party during interrogations to extract confessions”. The Committee noted that “such practices [of torture] continue despite the existence of the Torture and Custodial Death (Prevention) Act, 2013, and is concerned about reports that law enforcement officials are requesting to repeal this law and are seeking safeguards from prosecution on torture charges.” The Committee urged Bangladesh to “put an end to the practice of torture and ill-treatment”, “enforce the Torture and Custodial Death (Prevention) Act, 2013, and ensure that no immunity provisions in other laws supersede the protections in this act” and further urged Bangladesh to establish an independent complaint mechanism to investigate all reported allegations of torture and ensure that alleged perpetrators of those crimes were prosecuted.

The Human Rights Committee also expressed concern at the poor conditions of detention in the State party’s prisons, particularly with respect to overcrowding, unsanitary conditions and extortion of inmates and their relatives by prison guards to enjoy basic rights. The Committee also raised concerns about the high number of deaths in prisons over the past five years, all of which were attributed by the State party to natural causes or suicide, while reports indicated that “at least some of these deaths can be attributed to poor prison conditions, negligence by the authorities or lack of access to treatment, and some are cases of death as a result of injuries sustained by torture while in police custody”.

Bangladesh has not submitted any State party’s report under the UNCAT which has been due since 4 November 1999.

The judiciary in Bangladesh has played a positive role in the fight against torture and to address impunity enjoyed by the security forces. On 24 May 2016, a four-judge Appellate Division bench of Supreme Court chaired by Chief Justice S K Sinha dismissed a government appeal against a High Court judgement dated 7 April 2003 asking the government to amend the two Sections (sections 54 and 167) of the Criminal Procedure Code (CrPC) that allow police to arrest someone on suspicion without warrant and detain him for a period of 15 days with a magisterial approval. The SC also upheld the 15-point guideline issued by the High Court to regulate the arrests and detention under those two sections of CrPC. The SC also directed that if the medical evidence reveals that the person detained has been tortured or died due to torture, the magistrate shall take cognizance of the offence suo-moto under section 190(1)(c) of the CrPC without awaiting the filing of a case under sections 4 and 5 of the Torture and Custodial Death (Prevention) Act 2013 and proceed in accordance with law.[21]

There have been demands from the police to amend several provisions in the Torture and Custodial Death (Prevention) Act 2013. In February 2015, the Police Headquarters sent a proposal to the Ministry of Home Affairs to amend the definition of torture, investigation process and punishment provisions stipulated in the Act and to repeal Section 12 of the Act which stipulated that no circumstance such as war situation, threat of war, political instability, state of emergency, or orders of senior official or the government authorities will be acceptable as an excuse for torture. If this section is dropped, it would provide impunity to the law enforcers to use torture.[22] As late as January 2017, the Police asked Prime Minister Sheikh Hasina to repeal the Torture and Custodial Death (Prevention) Act 2013 to ‘protect peace, stability and security of the country’ and to motivate the police force.[23] Human rights groups have been opposing any amendment to water down the law against torture. The NHRC of Bangladesh in its report during the thirtieth session (7-18 May 2018) of the Universal Periodic Review recommended enforcing the Torture Act and refrain from any regressive amendment to it.[24]


ENDNOTES:

[1]. Bangladesh’s National Report (A/HRC/WG.6/30/BGD/1 dated 26 February 2018) submitted to the Human Rights Council under Universal Periodic Review (UPR) in the thirtieth session held from 7-18 May 2018, Para 67

[2]. Police want revocation of anti-torture law, New Age Bangladesh, 24 January 2017, http://www.newagebd.net/article/7666/police-want-revocation-of-anti-torture-law

[3]. Review of the Torture and Custodial Death (Prohibition) Act, 2013, Bangladesh Legal Aid and Services Trust (BLAST) https://www.blast.org.bd/content/publications/Review%20of%20The%20Torture%20&%20Custodial%20Death(Prevention)%20Act,%202013.pdf

[4]. Torture and Custodial Death (Prevention) Act, 2013, section 12

[5]. Torture and Custodial Death (Prevention) Act, 2013, section 5(2)

[6]. Torture and Custodial Death (Prevention) Act, 2013, section 8(1)

[7]. Torture and Custodial Death (Prevention) Act, 2013, section 5(3)

[8]. Torture and Custodial Death (Prevention) Act, 2013, section 5(4)

[9]. Torture and Custodial Death (Prevention) Act, 2013, section 14(1)

[10]. Torture and Custodial Death (Prevention) Act, 2013, Section 14(2)

[11]. Torture and Custodial Death (Prevention) Act, 2013, section 4(3)

[12]. Torture and Custodial Death (Prevention) Act, 2013, Section 15(4)

[13]. Odhikar’s data on “Tortured to death” and “Beaten to death” figures have been clubbed together. See http://odhikar.org/wp-content/uploads/2018/06/Statistics_Torture-to-Death_2001-May-2018.pdf and http://odhikar.org/wp-content/uploads/2018/06/Statistics_Beaten-to-death_2001-May-2018.pdf

[14]. See Odhikar’s “Torture (Dead and Alive) from 2004 – 2018 (upto May)”, available at http://odhikar.org/wp-content/uploads/2018/06/Statistics_Torture_2004-May-2018.pdf

[15]. http://odhikar.org/wp-content/uploads/2018/06/Statistics_EJK_2001-May-2018.pdf

[16]. http://odhikar.org/wp-content/uploads/2018/06/Death-in-jail-2001-May-2018.pdf

[17]. See Odhikar’s Six Month Human Rights Report of 2018 availabl at http://odhikar.org/wp-content/uploads/2018/07/Six-Month_HRR_2018_Eng.pdf

[18]. See Odhikar’s Human Rights Monitoring Report of February 2018, http://www.odhikar.org/wp-content/uploads/2018/03/human-rights-monitoring-report-February-2018_Eng.pdf

[19]. See Odhikar’s Human Rights Monitoring Report of March 2018, http://www.odhikar.org/wp-content/uploads/2018/04/HRR_March-2018_Eng.pdf

[20]. See Odhikar’s Human Rights Monitoring Report of May 2018, http://www.odhikar.org/wp-content/uploads/2018/06/human-rights-monitoring-report-May-2018_Eng.pdf

[21]. SC releases full text of verdict on detention, remand, Dhaka Tribune, 10 November 2016, https://www.dhakatribune.com/bangladesh/2016/11/10/sc-releases-full-text-verdict-detention-remand

[22]. See The Daily Star, 20 March 2015, https://www.thedailystar.net/editorial/hrfb-demands-rejection-police-proposal-72582 and The Daily Star, 6 March 2015, https://www.thedailystar.net/op-ed/politics/police-wants-modify-torture-prevention-act-5316

[23]. Police want revocation of anti-torture law, New Age Bangladesh, 24 January 2017, http://www.newagebd.net/article/7666/police-want-revocation-of-anti-torture-law

[24]. A/HRC/WG.6/30/BGD/3, para 21

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