Asian Legal Resource Centre, Hong Kong
Although Bangladesh has twice gone through independence struggles, culminating in full political independence in 1971, its laws have not yet emerged from the 19th century. Meanwhile, policing has for the most part degenerated back into the feudal ages. At no stage has there been a serious attempt to modernise it or to take advantage of significant developments happening elsewhere in the world. Legal and investigative reforms are moving so slowly as to place Bangladesh completely out of touch with the rapid developments in communications, transportation and sense of time among people in other countries. The last “sweeping reforms” referred to on the Bangladesh Police webpage of the Ministry of Home Affairs, for instance, occurred in 1861. This atrophy and its consequences are manifest.
Arbitrary arrest: Anyone, anywhere, anytime
Despite a constitutional prohibition, arbitrary arrest is among the most common features of policing in Bangladesh. It is routinely accompanied by assault and extortion, and also often leads to torture, killing and further grave abuses of the arrested person and others.
Laws in Bangladesh make it easy for a police officer to arrest someone on a suspicion and try to pry some information out of them, with which to conjure up a better excuse to hold the person in custody. Section 54 of the Code of Criminal Procedure 1898, which permits arrest on “a reasonable suspicion” of a crime, is perhaps the most commonly used provision. For police in Dhaka, section 86 of the Dhaka Metropolitan Police Ordinance is frequently used to make arrests without valid reason after dark wherever someone is found “without any satisfactory explanation”. The section carries a summary one year penalty, fine or both. A person can also be held in detention through provisions such as the Special Power Act 1974, through which the police can propose to the district commissioner (executive officer) who is also the district magistrate (judicial officer), that any person shall be detained for a certain period of time.
Under these laws a hapless ordinary pedestrian may end up in jail for months simply for crossing the road at the wrong time and in the wrong place: namely, where police are present. Many others are targetted arrestees, having been identified as political opponents of a local official, or the government as a whole.
Some descriptions of incidents help to understand how easily this works in practice.
On 24 November 2005 Mohammed Abul Kashem Gazi was on his way to buy spare parts for his refrigerator shop (Lawless law-enforcement & the parody of judiciary in Bangladesh, article 2, vol. 5, no. 4, August 2006, story 28). He was stopped by a number of policemen in front of the Khilgaon police outpost, apparently without any particular reason. Somehow an altercation followed, and it soon led to three of the officers assaulting Gazi on the street, and dragging him back to their main station, where they kept him in detention overnight and took his mobile phone. He was brought before a magistrate the next day under section 54, who mercifully released him on bail due to health grounds.
Police commonly arrest people as a service to someone they know, or in exchange for money or other rewards. On 28 December 2005, a young man named Imon Chowdhury went to collect his pregnant wife from her family’s house in Barisal and return home to Gaibandha together (story 25). When he arrived, a dispute erupted and his in-laws allegedly beat him up. His father-in-law had a connection with an assistant superintendent of police in the district, and he handed Chowdhury over to the officer. He was taken back to the police station and assaulted, apparently as a favour to the family, after which he was held in custody under section 54, despite differing police accounts of what had taken place at the house.
The periodic use of these laws to make mass arrests also encourages the continued routine detention of innocent persons on a whim. In the first week of February 2006, for instance, some 10,000 or more people were detained simply in order to thwart opposition party plans for a mass rally (story 19). Many were not produced before a court for some days. On February 5 the Supreme Court ordered that the arrests stop. It also went so far as to question the constitutional legality of section 86. Although the court’s injunction had the effect of halting that wave of arrests, the laws and practices that allowed for them still stand.
Ironically, laws that have been ostensibly intended to protect human rights have also been used instead to arrest innocent persons. For instance, as it is easy to secure a temporary detention order under the Women and Children Repression Prevention (Special Provision) (Amended) Act 2003, the law is used by political, personal or business rivals to harass one another. This is one of the reasons that the overwhelming number of cases brought to courts under that law are reported to fail.
|Section 54 of the Code of Criminal Procedure 1898
Any police officer may, without an order from a Magistrate and without a warrant, arrest-
First, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;
Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking;
Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the [Government];
Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property [and] who may reasonably be suspected of having committed an offence with reference to such thing;
Fifthly, any person who obstructs a police officer while in the execution of his duty, or has escaped, or attempts to escape, from lawful custody;
Sixthly, any person reasonably suspected of being a deserter from [the armed forces of ];
Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh;
Eighthly, any released convict committing a breach of any rule made under section 565, sub-section (3);
Ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
Section 86 of the Dhaka Metropolitan Police Ordinance (unofficial translation)
If any person is found between dusk and dawn
Article 33 of the Constitution of Bangladesh
(1) No person shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
Torture, the Third Degree Method
Once a person is under custody, the police have a range of alternative ways to proceed. If the detainee can be accused of a serious offence like murder or storing illegal weapons then the investigating officer will already be calculating how much money can be made and from whom it can be collected. On one side, he will be taking money from the complainant (such as on the pretext of needing to purchase fuel for the police vehicle). On the other, he will be bargaining with the accused about how much it will cost to escape from the charges, or at least from the Third Degree Method, or death by “crossfire” (see further: Nick Cheesman, “Fighting lawlessness with lawlessness [or] the rise & rise of the Rapid Action Battalion”, article 2, vol. 5, no. 4, August 2006).
If threats and negotiations with an accused do not yield anything lucrative, police will turn to what is euphemistically known as the Third Degree Method: torture. The third degree starts out light, and is gradually increased in intensity as the interrogation continues. The scale of torture also depends upon the severity of the charges and amount of money involved, as well as other factors such as the amount of interest in the case from politicians or other influential persons, and the identity of the accused. The methods start with beating with sticks and other objects on the joints, and soles of the feet; then, walking over the body, forcing hot or cold water into the nose (depending on the season), applying chilli or itching powders, and Banshdola: rolling and pressing on the body with bamboo; then, hanging upside-down from the ceiling or a tree and beating, inserting sharp objects under fingernails and into other sensitive parts of the body, and hanging a heavy weight from the penis and forcing to stand on a table or chair.
The Third Degree Method is an all-round winner for police who use it. It brings in money and helps curry favour with senior officers, members of parliament and other important people. It reinforces the status quo, as the only truly effective means that victims have at their disposal to deal with it is to pay the police and other influential people to escape. The relatives of persons under the Third Degree can be seen rushing in and out of police remand cells and other places of detention, doing their bit for one of the most corrupt economies in the world: making mobile phone calls, negotiating with middlemen, seeking help from political leaders or high-ranking civil or police officials, and spending huge amounts which they are forced to borrow from rich persons, money lenders or micro-credit groups, or by selling valuables like gold and land on the cheap.
Many others have an indirect interest in keeping this whole performance going. Lawyers get more clients, magistrates have an endless supply of easy prey, and the government earns revenue out of every transaction. Prison staff must be bribed to take even so much as a bar of soap to a new inmate. After the accused is released, he needs medical treatment and drugs, which if they are to be of a reasonable standard must be paid for through a private clinic and pharmacy.
By contrast, the victims of the Third Degree Method often become unemployed, traumatised burdens on their families. They may need treatment for years or decades to come. They remain a permanent physical reminder of the violence and injustice meted out by the state, for their own generation and the next.
Police officers who use the Third Degree Method run very few risks of ever being punished. Although article 35(5) of the Constitution of Bangladesh prohibits torture and the country has ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, there is no law to prohibit the method or any effective means through which to lodge a complaint, initiate an independent investigation and have a perpetrator prosecuted. The government has also said that it will apply article 14(1) of the UN convention, which stipulates the right to redress, compensation and rehabilitation for a victim, only in accordance with existing laws. As there are no existing laws for redress, compensation and rehabilitation for torture victims in Bangladesh, it is not difficult for the government to say that it has fulfilled its obligation by doing nothing.
|Article 35(5) of the Constitution of Bangladesh
No person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment.
Article 14(1) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
By refusing to implement article 14(1) of the Convention against Torture, the government has effectively negated its commitment to the entire treaty. It has also shown that it has no sincerity to see international standards on torture introduced in Bangladesh. Instead it has strongly endorsed impunity, and by implication, given the green light to the Third Degree. The government of Germany was among others which at the time of ratification objected to the reservation on article 14(1). It noted with concern that it “raises doubts as to the full commitment of Bangladesh to the object and purpose of the Convention”. That is diplomatic talk for, “We can see that you aren’t going to do what you say you’re going to do.” All other evidence points to the same conclusion: despite its continued pretences to be a good international citizen, the government of Bangladesh has not yet lodged a report on its compliance with the treaty to the UN monitoring body. Its first report was due in 1999, the second in 2003. Somehow, non-submission of reports to UN human rights treaty bodies did not seem to count against Bangladesh when it came to being elected to the new UN Human Rights Council. Or perhaps no one noticed. Presumably the diplomats from Dhaka did not make a point of bringing it up.
It follows from the above that no coherent legal provisions exist to enable victims of torture and other serious abuses to make claims for compensation or rehabilitation. The state does not provide medical facilities for physical and psychological injuries suffered. Only after high-profile incidents such as the assault on sports journalists at an international cricket match (story 14), might some compensation and rehabilitation be used as a way to set aside pressure to lay legal charges against the accused. But more often than not, as in the case of the villagers in Meherpur (story 21), victims are left to obtain treatment themselves.
Corruption, the god of all institutions
In Bangladesh corruption is the one and only god of all public institutions. Each and every person has to think about how much money will be needed to get something done. Corruption starts from the top political leaders and runs right down to the most junior functionaries. The ruling party, whichever it may be, wallows in it: being in government is first and foremost a chance to make money illegally, and for one’s supporters to make it too. There are few exceptions to this rule, and there is not a single institution in the country that is corruption-free. Whether recruiting, training or transferring staff; purchasing, deciding or investigating anything; collecting, registering and recording land or goods; auctioning or transporting something, bribery and other corruption is present.
Corruption in policing, as noted, has a close relationship to the use of torture. But it is also found in every transaction involving police, in one way or another. For instance, when a person goes to a police station, the on-duty officer or others there will assess the complaint not on its merits but rather according to the identities of the two parties:
1. What is the identity of the complainant? Does she belong to a political party? If so, is it the ruling party or the opposition party, or a minor party? Is her family well-known? Do they have money? Does she have relatives in the government bureaucracy or police department?
2. What is the identity of the accused? Does he belong to a political party? If so, is it the ruling party or the opposition party, or a minor party? Is his family well-known? Do they have money? Is he a police officer or government officer? Does he have relatives in the government bureaucracy or police department? How do the answers to all these questions compare to those of the complainant?
If the complainant is a poor and illiterate person, then she will be refused, or asked to pay some money for the expenditure of the policemen, and given a false assurance that someone will solve the problem. She will be advised not to file a case against the alleged perpetrators.
If the complainant belongs to a rural middle class family, then her case can be filed following the intervention of some local influential persons such as the Union Council chairperson, a local political party leader or any representative of a powerful family in the locality, together with a sum of money.
If the complainant belongs to the ruling political party, then the case will be recorded without any question, provided that the accused is not also someone equally or more powerful and that there is no evidence of any request coming from such a person not to take the complaint. Of course, some cigarettes and money will also still change hands.
Unquestionably, complainants belonging to the ruling party or moneyed groups of people are warmly welcomed and entertained in police stations, and their complaints recorded with assurances that the alleged perpetrators along with all their surviving family members will be thrown into prison in the shortest possible time.
If the complaint is against any police officer, then the complainant, whatever is his qualification or identity, shall be refused, threatened, intimidated and ousted from the police station.
The tiger’s claws
Today the ordinary person in Bangladesh will try to avoid going to a police station even if his house is robbed. This is because the cost of the robbery is likely to be less than the cost of trying to get the case solved. When asked, the person may repeat a popular expression: “A tiger’s claws inflict 18 injuries; a policeman’s hands inflict 36.”
A malfunctioning policing system is not merely a defect of society; it is a threat to society. As in Bangladesh today, where the police are out of control, it encourages crime. As in Bangladesh today, where they lack both competence and interest in criminal investigations, it destroys people’s faith in the prospects for redress. As in Bangladesh today, where the police are corrupted from top to bottom, bridges between organised crime and the state are firmly secured. As in Bangladesh today, where they are thoroughly politicised, it allows for easy violent revenge against persons with opposing views. Where policing is such, to talk of human rights is meaningless.
Photo Courtesy of BIHR