Police remand and the desecration of human fundamental rights of Bangladesh by Adv.Sayed Taufiq Ullah
Adv.Sayed Taufiq Ullah
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The culpability of arrested persons cannot be customary by extracting confession through cruelty. The gravity of the situation calls for urgent remedial and reform measures in order to forestall an outright public confidence predicament in the government of the criminal justice system. This psychoanalysis explore the put into practice of torture under police remand from the perspective of constitutional and criminal law of Bangladesh. Human rights are infringed with impunity from the moment of mistrustful arrest until the end of the remand period. The police have consistently been misusing their knowledge precisely to arrest people without warrant and in most cases for illegal purposes on the plea of maintaining law and order.
Adv.Sayed Taufiq Ullah
Bangladesh
Abstract
The need for a step change in Police remands system research.
We are at a turning point, and leadership is required to prevent disaster.
In Bangladeshi culture since the liberation war of 1971, there has not been any dearth of public display of patriotism. On different national days, political leaders and intellectuals compete with each other in critiquing an erstwhile villain.
For this research I am trying to find the real picture and make an assessment with them. Then make an idea about Human rights, Justices, Social Brutality, Victimization of society, Present Police remands scenario of Bangladesh.
Bangladesh. Government officials labeled Rohingya “intruders” and “criminals,” and blamed them for destroying Buddhist temples in mass riots in October, without offering evidence to prove they were responsible.
International Crimes Tribunal and Bangladesh Rifles Mutiny Trials against those accused of war crimes during the 1971 war of independence continued, despite calls by the US war crimes ambassador, Stephen Rapp, and several international groups to amend the International Crimes Tribunal Act (ICT Act) to ensure it complied with international fair trial standards. The trial chamber allowed several prosecution witnesses statements as evidence, without any live testimony being heard. While the prosecution claimed the witnesses were unavailable, the defense produced safe house logbooks that showed they were available at the time when they were meant to appear in court. However, the tribunal rejected the defense’s claims. In the first trial against the accused Delwar Hossain Sayedee, defense lawyers claimed that they could not produce their witnesses due to intimidation and threats against them by the prosecution. The prosecution denied the claims. Mass military trials against the 6,000 soldiers of the Bangladesh Rifles (since renamed Bangladesh Border Guards) continued, with nearly every accused soldier being found guilty. A mass trial in a civilian court of over 800 soldiers continued in 2012.
In addition to the allegations of torture, most of the accused did not have proper access to lawyers and were often unaware of the charges against them. The government rejected Human Rights Watch’s concerns—published in a July 2012 report—concerning these mass trials, which involved as many as 800 accused being tried at one time, in one courtroom. Instead, the government mounted a public relations campaign that denounced Human Rights Watch and local groups that had helped to research the report.
Bangladesh’s overall human rights situation worsened in 2012, as the government narrowed political and civil society space, continued to shield abusive security forces from accountability, and flatly ignored calls by Human Rights Watch to reform laws and procedures in flawed war crimes and mutiny trials. Civil society and human rights defenders reported increased governmental pressure and monitoring. The security forces’ practice of disguising extrajudicial killings as “crossfire” killings or legitimate confrontations between alleged criminals and security forces continued, as did disappearances of opposition members and political activists.
Increasingly, the magistracy controlled by the executives becomes insensitive to civil liberties. Denial of bails, indiscriminate granting of police remand, the alleged torture of person(s) arrested in police custody creates genuine concerns. What a number of advocates of Bangladesh Supreme Court told in a recent Bar Council seminar organized for the new entrants to the legal profession clearly reflects the situation. "The Magistracy virtually turns into an extension of the Police. In earlier days, magistracy was not so; magistrates were the real friends of the people whose liberties were at stake. The situation is getting worse."
Widespread torture of detainees is common in criminal investigations in Bangladesh in all regimes, and has become an unmistakable feature of the government's crackdown against independent and political voices. Persons detained by police are routinely subjected to physical and psychological abuse, often from the initial moments of their arrest. The concerned authority often refuses to hold police and security forces accountable for acts of torture, and even tacitly encourages torture though it’s broadcasting of political prisoners' public "confessions" as tools of political propaganda. Instituting legal and judicial reform to halt torture, and ending impunity for it, should be a matter of priority for the government of Bangladesh and for all parties interested in human rights and the security and stability of the region.
Unqualified use of the qualified power of arrest a lot has been written on the abuse of the Section 54 of the Code of Criminal Procedure. The Code of Criminal Procedure, 1898 deals with some of the crucial procedural elements of the power and function of the police. Chapter V of the Code particularly deals with procedure and mode of arrest of which section 54 is of utmost important. It grants police qualified power to arrest any person on reasonable suspicion without warrant on nine grounds practically section 54(1) is the most abused section of the Code. The Police, in fact do not comply with the provision in its totality. They bluntly ignore the qualifying terms mentioned in the section e.g., cognizable offence' 'reasonable complaints', 'credible information', and reasonable suspicion'.
It is being indiscriminately used by the police and as application of this section fraught more with ulterior motives than prevention of crimes and or arrest of persons suspected of having committed or about to commit cognizable crimes. Most of the arrests under section 54 are caused on fanciful suspicion and in most cases to fill in the quota allotted to an individual police officer to make an arrest each day. This incredible practice has been going on with impunity for many years. An arrest under section 54 is often a prelude to issuance of detention order under the Special Powers Act, 1974 (SPA). The SPA allows the authorities to detain any person on eight grounds, vague enough to detain any person according to the whim and caprice of the executives and the party in power. Such detention can extend to six months, and may extend beyond this period, if so sanctioned by the Advisory Board. The use and abuse of the SPA in the name of securing law and order have resulted in a steady pattern of human rights violations. Successive governments have supported the continuation of this legal instrument that offer wide discretionary powers of detention.
Response:
Recently, the rates of custodial torture and death is on the rise in Bangladesh, with the courts routinely handing over detainees to police custody for torture in the guise of a legal instrument commonly referred to as "remand." But what is this remand and what is the legal basis of this term remand?
It is respectfully submitted that our fundamental right to
freedom of movement ought to be jealously guarded by the judiciary. Magistrates must take time and trouble to ensure that the detention of the accused is absolutely necessary. The remand order cannot be granted merely because the police or investigating authorities require it. The Magistrates must realize that it is also their responsibility to uphold our constitutional right and fundamental liberties.
Actually, in our Criminal Procedure Code, the word "remand" is mentioned nowhere. However it is commonly understood by the magistrates and lawyers that remand is that process whereby the accused/detainee is taken into police custody and tortured to solicit information or obtain forced confession. Political leaders and activists often fall victim to this procedure of remand. So does the underprivileged members of the society. The privileged few however, use influence and money to avoid torture in remand.
Ultimately, the widespread discretionary power of the police to arrest any individual suspected of committing an offence and this power coupled with the threat of torture while in "remand" has resulted in a "racket" of corrupt police officials, extorting money from families of unfortunate victims.
This well-known typology goes some way to responding to objections of justifiability:
An obligation to respect is essentially negative in nature and does not require the use of State resources, an obligation to protect might require State action (such as adopting legislation) but does not place undue strain on State resources; it is only the obligation to fulfill that raises the two obligations – costliness and positive nature – most acutely. Another way of phrasing the Committee’s typology is in terms of State roles rather than State obligations. In this way, the obligations to respect, protect and fulfill suggest that the State can play a negative role as perpetrator of a violation of a right, and positive roles as enabler and a provider of the subject of a right. A focus on the roles played by a State emphasizes the implementation of rights. It also provides a framework through which to analyze rights in a disaggregated way. The notion of indivisibility of human rights and their universality make it almost absurd to erect any artificial glass wall between civil and political rights on one hand and the ESC rights on the other. Additionally, this unnecessary and ill-conceived debate creates an environment where the danger of diluting the significance and immediate nature of the ESC rights looms large.
Backgrounds:
Mass anti-British - British use first this as NIBARTANAMULAKA laws in 1898 to stop the movement. Section 54 of the Act, millions of people without warrant were arrested. They use things that seem to stop at the colonial activists. To run a tool of repression Pakistan period was 54. After Independence, a series of loud, even against those who are in power they forget the things seem necessary in light of exploration. The legislation is now being used as a tool to repress NIBARTANAMULAKA as weapons’ to us.
Section 54 of the criminal Procedure Code, any police officers or magistrates' orders without warrant, arrest any person can do. Amalayogya involved in a crime or the person or persons involved in this type of work involved in yuktasangata against which complaints have been received or a reasonable suspicion exists or credible news. Has been declared a guilty person, a person may have stolen things, resistance movement against police officers, defense forces away from the people, by the people abroad who return, the accused was released in violation of the rules and other people at the request of a police officer from arrest law can be arrested.
British made under section 54 of the Criminal Law NIBARTANAMULAKA, Action conflict The Last Constitution. Article 31 of the Bangladesh Constitution relating to fundamental rights, 33 (a), 33 (b) and 35 (5) of section contrary. All of the sections prohibit torture and to keep talking to the person misapply section 54 of the country's human rights are being diminished. Section 31 of the Constitution, the law and the law shelter and only use it at any point of law and every citizen of Bangladesh all persons temporarily inalienable rights, and in particular shall not be lawful, except that no action was taken, so that a person's life, Independent, body, reputation or property loss does not occur. '
The interrogation in police custody or remand one screams to panic. In particular the ruling party used this against the opposition political workers. Member of the opposite political party was spotted by police about the running of deadly violence. Property contains the size of the levels of horror.
Criminal law to allow investigation interrogation the accused, but there will not be tortured or forced upon Accept Quote Not a chance. The court directed the police if it Manichean. CrPC section 167 investigation cases magistrates have been accused of police interrogation. The cold has become one of the interrogations. The idea is now confirmed that torture is remand. Remand is human and physically attacks. In all cases the accused of theft from the police for interrogation remand see. The 54 detained by police in political worker remand us. Horror in the government's recently increased in intensity. Cognizance of all the opposition political movement for weak political workers arrested. The government is remand arrested. Reminder is arrested in torture. You can't imagine the protesters who were victimized by police remand.
Police Remand:
Mounting numbers of torture and deaths in pre- and post-conviction detention facilities over the past three decades attest to the brutality of the treatment meted out against detainees and prisoners. Although the Constitution of Bangladesh prohibits torture, few law enforcement officers are held accountable for it.
Illegal action of the police personnel, in most cases, are either authorized or endorsed by a magistrate. Refusal to grant bail to a person accused of a billable offence at the instance of police is an example of police-magistrate joint collaboration. Section 167 of the Cr.P.C. allows the magistrate to grant police remand in custody beyond 24 hours for a total period of 15 days on request from the police after she/he satisfied that there are grounds for believing that the accusation or information is well founded" (Sec. 167.1 of the Cr.P.C.).
The term 'remand' is practically synonymous with torture for extracting confession. Like refusal of bail, granting of remand is another instance of police-magistrate joint solidarity, which at the end inspires the law enforcers to flout the legal safeguards more easily. In most cases, the magistrate does not ask for a copy of the entries in the diary of the police officer making the investigation (Sec. 167.1 of the Cr.P.C). The magistrate in majority cases does not record his reasons with substance and clarity for allowing detention in the custody of the Police.
The criminal justice system lacks adequate procedural safeguards against police abuse, as it grants the prosecution wide powers concerning pre-trial custody, accesses to lawyers, and access to forensic evidence. Against the backdrop of such flagrant violations of the letter of the colonial law, the role of an assertive, pro-active higher judiciary becomes more important to break the unfortunate nexus between police and magistracy.
Legal Framework on Arrest, Detention and Torture:
Section 54 and 167 of the Code of Criminal Procedure, 1898, gives wide powers to the police to arrest a person without warrant on reasonable suspicion. The phrase ‘reasonable suspicion’ is not defined and as such creates ample scope for misuse by police. In Bangladesh, custodial confessions are outlawed unless made to a Magistrate and then, if an accused states that he is unwilling to make a confession, he 7 must be sent only to judicial custody if not released.
According to Section 27 of the Evidence Act, a statement made by the accused in police custody that leads to the recovery of incriminating information is, when it is found to be true, admissible in court. This provision enables law enforcement officials to use material evidence obtained through torture. There is a widespread belief that most of the information and confessions extracted during remand are not voluntary. The involuntary means for extracting confession goes against Article 35(4) of the Constitution, which makes provision against self-incrimination and Article 35 (5) which provides that “No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” In many incidents, however, victims died after arrest even before they were produced before the courts as required by Article 33 of the Constitution and Section. 61 of Cr. P.C. Many detainees are also deprived of the right to consult lawyers and to see relatives despite the court orders for the same. There are a number of special criminal laws which also contribute to a culture of arbitrary arrest, detention and torture. The most infamous piece of special law is the Special Powers Act, 1974 under which a person can be ‘preventively detained’ by the executive, i.e., detained to prevent that person from committing any prejudicial act, which the administration deems detrimental to the interest of the state. The most important power conferred by this Act is that a person can be detained if the government ‘suspects’ that he is about to commit a ‘prejudicial act’, though the individual has not yet committed such an act. It is common for persons arrested under Section 54 of the Code of Criminal Procedure to later be charged under the Special Powers Act 1974. The Constitution of Bangladesh adheres to the protection and respect for fundamental human rights, equality and due process of law to establish a just society.
The most important constitutional safeguards as to arrest and detention are Incorporated in Articles 27, 31, 33 and 35 of the Constitution.
An aggrieved person can file a writ petition under Article 102 of the Constitution of Bangladesh. While Article 27 guarantees the right to equality and equal protection of law, Article 31 provides that all citizens have the inalienable right to be treated only ‘in accordance with law’.
Article 33 of the Constitution of Bangladesh provides four fundamental freedoms or safeguards upon a person arrested under ordinary law.
- he cannot be detained in custody without being informed of the charge against him/her as soon as may be, of the grounds of his arrest (rephrase);- he must be given the right to consult and to be represented by a lawyer of his own choice;
- he has the right to be produced before the nearest magistrate within 24 hours of his arrest; and - he cannot be detained in custody beyond the period of 24 hours without the authority of the magistrate.
Similar safeguards can be found in several provisions of the Cr. P.C. Section 60 of the Cr. P.C provides that a police officer arresting a person must produce him before the Magistrate having jurisdiction. Section 61 provides that a police officer must not detain an arrested person for more than twenty four hours without the authority of a magistrate. The other two guarantees are absent in the Cr. P.C. But these constitutional and legal safeguards are honored more in the breach than their observance.
Daulatpur in Kushtia was recently spotted by one of the women he allegedly sexually tortured. Police said the woman was phenasidilera business. But he said he spotted a woman phenasidilera business license of sexual violence by the police, who? The marmanti, hrdayabidaraka and nyakkarajanaka aharahai events happening.
The 17 December from 1 to student organizations for women unjustly arrested in December. 1 in 5 women were pregnant. He has been given bail ajaabadi. The common law bayaska people, women, children, the sick and the agradhikara receive bail. Nasrin lady habiba taken was not given bail. The Department of Justice needs arise.
Section 167 of the Criminal Procedure Code has permission from the investigating judge accused of hyphenation cannot police for interrogation. A series of torture carried out by law suyogei police custody asamike. But it has accused during interrogation in police custody are not tortured, he is a director of the 003 in the High Court.'Blasta v Bangladesh' case has been referred to the High Court direction and rimanda rimanda manjurera after returning from a court rules you must check the medical report. Accused in police custody after his relative about it. You should speak with his lawyer accused.Upasthiti the lawyer of her interrogation. Jijnasabada him to be in a room, where the accused can be seen from the outside. The High Court has directed the police thurai care of. Rimanda manjurera before and after returning from a lower court rimanda not seen the medical report.
The rimanda the case of unchecked police powers. Radish has the power to police the theft of shipping detainees. Even with recent court remanded the practice of police power. Demand that is bound to give the police magistrates Rimanda. Rimandera commands the police, the police demand manjur akrta. However, the magistrates were not spotted any asamike police have the power to both. However, the police dimandai more effective.
Is our Law can protects from Police grilling or unforgivable torture?
Rimandera prevalence of common people being criticized. Rimanda granted the question being criticized. According to the police or the police demand cahiba only allow the rimanda magistratura Why does not end at the criticism. Conventional sort or suspected (section 54) of the cases the police basache rimanda demand and are granted the Magistrate. Rimanda manjurera in honor of the magistrates bicara yastha ganache. The reality is that the government rimanda common law magistrates have the power, not the fact that there is no power.
In some cases, after the defendant or their shipping relative claim that obese by the police. Not the threat of violence. There are numerous complaints. According to the demand for money to increase the torture. But seriously, is seen as the torture of political dikata.
The December 14 order of the search, the police tortured. They include, Guitar, badura washable, water therapy, naked, throughout the day to keep his feet, like a bottle of therapy, jhalamuri, torture, etc. drawn.
Overall human rights situation in Bangladesh.
Bangladesh’s overall human rights situation worsened in 2012, as the government narrowed political and civil society space, continued to shield abusive security forces from accountability, and flatly ignored calls by Human Rights Watch to reform laws and procedures in flawed war crimes and mutiny trials.
Civil society and human rights defenders reported increased governmental pressure and monitoring.
The security forces’ practice of disguising extrajudicial killings as “crossfire”, killings or legitimate confrontations between alleged criminals and security forces continued, as did disappearances of opposition members and political activists. A prominent labor activist was kidnapped and killed, and other labor activists threatened.
After June 2012 sectarian violence in Arakan state in neighboring Burma, the government responded to an influx of Rohingya refugees by pushing back boatloads of refugees and insisting that it had no obligation to provide them sanctuary. The government curtailed the activities of nongovernmental organizations operating in pre-existing Rohingya refugee camps in Cox’s Bazaar in Chittagong.
Flawed trials against those accused of war crimes in the 1971 war for independence continued, as did mass and unfair trials of the Bangladesh Rifles (now Bangladesh Border Guards) accused of mountaineering in 2009.)
The government continued to demand that Indian border guards stop killing Bangladeshi nationals who cross into India for smuggling or other crimes.
Extrajudicial Killings, Torture, and Impunity Although there was a decline in overall numbers of civilians killed by security forces in 2012, the Rapid Action Battalion (RAB)—a force comprised of military and police—continued to carry out extrajudicial killings. The ruling political party, the Awami League, pledged to bring the RAB under control when it assumed office, but abuses persisted.
The government continued to persecute 17-year-old boy, Limon Hossain, whom RAB officials shot and maimed in March 2011. Although the government initially said that Hossain was injured in a botched RAB operation, it quickly retracted the statement and filed criminal charges against him. In August 2012, an alleged RAB informant attacked and beat Hossain in a street in his hometown. Instead of protecting Hossain, the government filed further charges against him, and accused him and his relatives of murdering a bystander.
The authorities failed to investigate and prosecute the RAB or other security forces responsible for extrajudicial killings or torture. While the RAB set up an internal investigative unit with technical assistance from the United States, no RAB member has ever faced criminal prosecution for a human rights violation. In April, Elias Ali, secretary of the Sylhet Division of the opposition Bangladesh Nationalist Party (BNP), disappeared without trace. Prime Minister Sheikh Hasina called on the police to investigate Ali’s disappearance, but undermined the effort by claiming that Ali and his driver were “hiding” at his party’s orders to allow the opposition to blame the government. Human rights groups reported more than 20 disappearances in 2012.
A case in terms of section 54 of the High Court verdict in the correction of 010 rimanda the arrest and interrogation Common provisions of section 54 are correct. This is tied for the six-month period. Prior to the correction a few things seem to point to follow the directions of the government.
If the police used torture in the name of the general culture of the country they have no friends in the administration. List of torture used by the desabaranye, BNP acting secretary general Mirza Fakhrul Islam Alamgir's arrest such person, after appeal rimanda, rimanda the unnecessary torture of women, people from other political issues in the country's recent appeal to the general aim of rimanda the morning and at didhagrastha .
Arbitrary arrest, detention and custodial torture by law-enforcing agencies have remained a persistent feature of our criminal justice system. These practices have been widespread in Bangladesh irrespective of the forms of government and successive governments have failed to stop this endemic problem. Arbitrary arrest, detention and infliction of torture are unacceptable in any form of government that is committed to democracy and the rule of law. Despite the legal and constitutional provisions against arbitrary arrest and detention, the practice of arbitrary arrest, detention and torture is rampant in Bangladesh. Against this background, the higher judiciary in Bangladesh has taken a proactive stand in prevention of arbitrary arrest, detention and torture and delivered a number of guidelines in some Public Interest Litigation (PIL) cases for initiating legal reform by the government.
Increasingly, the magistracy controlled by the executives becomes insensitive to civil liberties. Denial of bails, indiscriminate granting of police remand, the alleged torture of person(s) arrested in police custody creates genuine concerns. What a number of advocates of Bangladesh Supreme Court told in a recent Bar Council seminar organised for the new entrants to legal profession clearly reflects the situation. "The Magistracy virtually turns into an extension of the Police. In earlier days, magistracy was not so; magistrates were the real friends of the people whose liberties were at stake. The situation is getting worse."
Widespread torture of detainees is common in criminal investigations in Bangladesh in all regimes, and has become an unmistakable feature of the government's crackdown against independent and political voices. Persons detained by police are routinely subjected to physical and psychological abuse, often from the initial moments of their arrest. The concerned authority often refuses to hold police and security forces accountable for acts of torture, and even tacitly encourages torture though its broadcasting of political prisoners' public "confessions" as tools of political propaganda. Instituting legal and judicial reform to halt torture, and ending impunity for it, should be a matter of priority for the government of Bangladesh and for all parties interested in human rights and the security and stability of the region.
Unqualified use of the qualified power of arrest A lot has been written on the abuse of the Section 54 of the Code of Criminal Procedure. The Code of Criminal Procedure, 1898 deals with some of the crucial procedural elements of the power and function of the police. Chapter V of the Code particularly deals with procedure and mode of arrest of which section 54 is of utmost important. It grants police qualified power to arrest any person on reasonable suspicion without warrant on nine grounds Practically section 54(1) is the most abused section of the Code. The Police, in fact do not comply with the provision in its totality. They bluntly ignore the qualifying terms mentioned in the section e.g., cognisable offence' 'reasonable complaints', 'credible information', and reasonable suspicion'. It is being indiscriminately used by the police and as application of this section fraught more with ulterior motives than prevention of crimes and or arrest of persons suspected of having committed or about to commit cognisable crimes. Most of the arrests under section 54 are caused on fanciful suspicion and in most cases to fill in the quota allotted to an individual police officer to make an arrest each day. This incredible practice has been going on with impunity for many years. An arrest under section 54 is often a prelude to issuance of detention order under the Special Powers Act, 1974 (SPA).
The SPA allows the authorities to detain any person on eight grounds, vague enough to detain any person according to the whim and caprice of the executives and the party in power. Such detention can extend to six months, and may extend beyond this period, if so sanctioned by the Advisory Board. The use and abuse of the SPA in the name of securing law and order have resulted in a steady pattern of human rights violations. Successive governments have supported the continuation of this legal instrument that offer wide discretionary powers of detention.
Police Remand
Mounting numbers of torture and deaths in pre- and post-conviction detention facilities over the past three decades attest to the brutality of the treatment meted out against detainees and prisoners. Although the Constitution of Bangladesh prohibits torture, few law enforcement officers are held accountable for it.
Illegal action of the police personnel, in most cases, are either authorised or endorsed by a magistrate. Refusal to grant bail to a person accused of a bailable offence at the instance of police is an example of police-magistrate joint collaboration. Section 167 of the Cr.P.C. allows the magistrate to grant police remand in custody beyond 24 hours for a total period of 15 days on request from the police after he is satisfied that there are grounds for believing that the accusation or information is well founded" (Sec. 167.1 of the Cr.P.C.).
The term 'remand' is practically synonymous with torture for extracting confession. Like refusal of bail, granting of remand is another instance of police-magistrate joint solidarity, which at the end inspires the law enforcers to flout the legal safeguards more easily. In most cases, the magistrate does not ask for a copy of the entries in the diary of the police officer making the investigation (Sec. 167.1 of the Cr.P.C). The magistrate in majority cases does not record his reasons with substance and clarity for allowing detention in the custody of the Police.
The criminal justice system lacks adequate procedural safeguards against police abuse, as it grants the prosecution wide powers concerning pre-trial custody, accesses to lawyers, and access to forensic evidence. Against the backdrop of such flagrant violations of the letter of the colonial law, the role of an assertive, pro-active higher judiciary becomes more important to break the unfortunate nexus between police and magistracy.
What is judicial activism?
The terms ``judicial restraint" and "judicial activism" describe how a judge judges, that is, how he applies the law to facts in the cases before him. The difference is that restrained judges take the law as it is and activist judges make up the law as they go along. Judicial activism does not find any mention in the Constitution of Bangladesh, it is not defined anywhere but is widely talked about in all sections of society, NGOs and bureaucrats. Assertion of Judiciary and its power is judicial activism, many people label it is over active judiciary. In South Asia, the Judiciary of India has created classic precedents of judicial activism for protecting human rights, human dignity and establishing good governance. Kesavananda Bharati Vs. Kesala, Minerva Mills Vs. Union of India, India of Gaudlis Vs. Raj Naraian & S.P. Vs. Union of India etc. are few landmark cases that highlight judicial activism.
Using judicial activism as a weapon, the Supreme Court gives directives through the government. In Vineet Narayan Vs. Union of India, the famous Hawala case Supreme Court monitored the riweshgahous, it issued directives for CBI and intelligence services to be present in all hearings. He said that Judicial reforms are needed therefore judicial activism should go hand in hand with judicial restraint.
Restrained judges respect the political process, whether they agree with its results or not, until it clearly crosses a clear constitutional line. Activist judges feel free to re-write statutes or the Constitution, to use extra-legal factors in their decisions, to ignore limits on their power in the search for desirable results. However, in an established and well-balanced democratic system, judicial activism rarely adventures beyond certain limits. Because ultimately it is the Legislature, and the Executive created and sustained by the Legislature, that is accountable to the people whose will, after all, is sovereign.
The last hope?
The alarming trend of torture the hands of the law enforcers in Bangladesh exposes once again its inherent tendency of being viewed with a philosophy of paramilitarism associated with the mechanism of awe, threat and coercion. The culture of impunity endorses the existing trend and protects the culprits from being prosecuted. It encourages others to follow the suit, as the criminal justice system is open to manipulation by the agencies. The Supreme Court, as usual, remains the key institution for the protection of human rights of the bewildered. The traditional conservative doctrine of judicial restraint poses a serious threat to liberty, and is therefore not consistent with the fundamental objective of the framers of the Constitution of the People's Republic of Bangladesh. The purpose of the desired judicial activism, in the words of Justice V. R. Krishna Iyer, a living legend in South Asian legal fraternity, "To obliterate procedural anfractuosities, to broaden the idea of locus standi, to enable the penurious many to exercise their right of access to judicial justice, to abolish expensive nuances and pachydermic chaos of interpretation so popular in British Indian lawyering practices and to establish free legal aid and public interest litigation these were forensic urgencies and jural necessities if the democracy of judicial remedies were to reach the indigent, illiterate and alienated Indians who would otherwise find the complicated court system "untouchable" and even not "approachable''.
The need of the hour is an organisational culture that condemns abuse of power and misuse of force and encourages pro people policing. All those who are concerned with the arrest, detention, and custody of the people, particularly of the poor and vulnerable sections of the society, must strictly implement the constitutional and legal protections and safeguards. It is necessary that the guardians of law and the custodians of lock-ups and prison houses should be made aware of the constitutional and legal rights of the people. For Bangladesh, an activist, goal oriented judiciary can limit the scope of executive arbitrariness and ensure the implementation of its dictates.
It is common belief within the police forces around the world that torture is a civil necessity and if some force is not applied, no clue can be found from hard-nut criminals.
In Bangladesh there is serious allegation against the police of using torture and often lethal force on persons detained in custody. We commonly hear rumors of physical and psychological assault, the so-called “water treatment,” “shock treatment” and “egg treatment.” Those who come out of such torture usually prefer not to speak in public but close ones know and see the marks of apparent torture on their bodies.
Recently, the rates of custodial torture and death is on the rise in Bangladesh, with the courts routinely handing over detainees to police custody for torture in the guise of a legal instrument commonly referred to as "remand." But what is this remand and what is the legal basis of this term remand?
Actually, in our Criminal Procedure Code, the word "remand" is mentioned nowhere. However it is commonly understood by the magistrates and lawyers that remand is that process whereby the accused/detainee is taken into police custody and tortured to solicit information or obtain forced confession. Political leaders and activists often fall victim to this procedure of remand. So does the underprivileged members of the society. The privileged few however, use influence and money to avoid torture in remand.
Ultimately, the widespread discretionary power of the police to arrest any individual suspected of committing an offence and this power coupled with the threat of torture while in "remand" has resulted in a "racket" of corrupt police officials, extorting money from families of unfortunate victims.
If one looks at the law, it is difficult to find any legal basis for this torture in the name of remand. Custodial torture and death runs counter to the high ideals on which this nation is founded.
Article 35(5) of the Constitution gives protection to every person from being subjected to torture or cruel, inhuman or degrading punishment or treatment.
In 2003, the Supreme Court of Bangladesh in a landmark judgment (Blast v Bangladesh and Others) held that the provision of the Criminal Procedure code (sections 54 and 167) which gives the police widespread authority to arrest individuals and thereafter carry out torture in police custody in the name of remand is unconstitutional.
The court stressed that there ought to be detailed guidelines on how to conduct an interrogation of a detainee in police custody.
The court further held that failure to observe those guidelines should result in criminal charges being filed against those officers responsible for unlawful conduct. Moreover, the victim of torture is entitled to compensation for his suffering.
The Hon’ble Court observed: “The magistrate in the absence of any guideline passes ‘parrot like’ orders authorising detention in police custody which ultimately results in so many deaths and incidents of torture in police custody.”
To remedy the lapses in the existing law, the Supreme Court proposed certain modifications/amendments to the law in order to ensure proper accountability of police officials.
Unfortunately, 10 years after the deliberation of the Supreme Court, the government has made no necessary amendment to the law.
By contrast, the observation by the Supreme Court declaring the caretaker government unconstitutional gets the attention of the Parliament within days of passing a short order and the constitution gets amended at light speed. One can only infer that the political parties whenever they assume office want to maintain the culture of inhumane policing for collateral purposes; hence the blatant disregard to a judgment of the Supreme Court.
Bangladesh is a signatory to United Nations Convention Against Torture. The Convention requires states to take effective measures to prevent torture within their borders, and forbids states to transport people to any country where there is reason to believe they will be tortured.
Unfortunately, the government has taken no visible steps to comply with its international obligation.
The government is yet to enact a law directed to end torture and inhuman or degrading treatment by law enforcers or government officials although a bill in this regard has been placed in parliament by one of its lawmakers on September 10, 2009.
In reality, paying lip service to any international obligation is unlikely to bring about any substantial change. What is needed is a political will to stop custodial torture once and for all.
Failing that determination and political will to make the police force an independent, efficient and accountable body of civil defence, all attempts to redress the current problem is bound to fail.
In spite of Article No. 35 (5) of the constitution of the People’s Republic of Bangladesh, prohibited torture completely, incident torture is increasing day by day. International Convention Against Torture (CAT) has also been declared torture as the punishable offence.
As the member state of above mentioned convention Bangladesh is bound to comply with this convention i.e it is bound to take necessary steps regarding this matter. Rather, without ratify that article No. 14 of the international convention against Torture which is most effective against torture, Bangladesh has made the convention against torture totally ineffective.
Moreover, Bangladesh did not promulgate any act till now treating torture as an offence in the prevalent law. As a result, way of getting relief by the victim of torture in the prevalent law remained closed i.e. it is not becoming possible to get any relief against the perpetrators in the prevalent law of Bangladesh.
Main weapon of torture by the police in Bangladesh remains within the laws prevalent in the country. Especially they oppress at different times by abusing section no. 161, 54 and 167 of the criminal procedure code. Rules and provision of taking and writing down of the evidence of witnesses at the time of investigation of any complaint has been described in section 161 of Cr. P.C. According to the said section, in the case of recording of a witness after taking a witness by a witness there is no requirement of signature of the said witness. As a result, the investigation officer gets the opportunity to record the witness according to his wish and makes abuse of that.
At many occasions, they get the opportunity to complete investigation by recording information according to their wish without appearing to the witness or without taking their statement. In the majority of cases it is seen that, as a result of personal enmity with the investigation officer or for realizing illegal money or being influenced by others through taking of unlawful money they record names of different innocent person in pursuance of witness given by the previous witness subsequently he realizes unlawful money and mitigates his aggression.
Many people die as a result of it and many become disabled for their whole life. If after making amendment of section 161 of the Cr. P.C provision shall be made for taking of signature of the witness by his own hand after reading out it for the hearing of the witness, then the way of harassment or oppression or torture of the innocent people by implicating an innocent person through the recording of false witness in the way shall be thwarted to some extent.
Besides, police are oppressing or violating human rights on a regular basis through the application of Section no. 54 of the Criminal Procedure Code. Said section gave police extensive power to arrest without warrant. Even Police can arrest any one due to suspicion by the without warrant. However, suspicion must be logical.
There must be a strong basis of suspicion. Suspicion must not be whimsical. But the police administration is continuing merciless torture by arresting innocent persons by abusing the said power. Although in the said section nine conditions were mentioned clearly, yet police don’t care the said condition in the least and they arrest according to their wish and realize money and make oppression. In this way by making abusing section 167 of the Criminal Procedure Code Police is continuing torture and violation of human rights regularly.
In section 167 of Cr.P.C has been given power to make interrogation of the accused in the interest of investigation. In this case it has been said that, if it shall not become possible to complete the works of investigation within 24 hours of arrest of an accused and if it shall appear relevant police official logically that more information shall be received from him, then he may take him under remand subject to the permission of the learned Magistrate. But they can not make torture upon an accused by the name of remand.
In the Writ petition No. 3806/1998 regarding the killing of the meritorious student Rubel popularly known as BLAST case filed by the Bangladesh Legal Aid and Services Trust (BLAST) on 07 April, 2003 a bench of High Court Division of the Bangladesh Supreme Court comprising Justice Md. Hamidul Haque and Justice Salma Masud Chowdhury pass an epoch making judgment regarding section no. 54 of the Criminal Procedure Code relating to arrest on suspicion and for amendment of Section no. 167 of Cr. P.C regarding police remand and directed the government for amending the relevant act. Simultaneously High Court opined to abide by some specific guidelines in these two cases until the time of promulgation of new act.
In the direction given by the court mainly two recommendations have been made. Firstly, it has been said to add sub-Section (2) to the section no. 54 of the Cr. P. C and amend sub section (3), (4) and (5) of Section no. 167 of Cr.P.C Simultaneously it has been said to increase the extent of the awarded punishment under the section 220 and 348 of the penal code by making amendment of these to section.
Guideline given in the case of Section no. 54 of the criminal Procedure Code includes- for arresting any person under this section, after expressing their own identity that matter shall have to be informed to his close relative. And it has been said that if an arrest is made from the road, then for what reason the arrested person has been arrested that shall have to be informed within three hours.
In special cases of arrest, medical check up shall have to be done immediately after the arrest. The court also recommended that, if there shall have any mark of injury on the body of the arrested person, then the relevant police officer shall record the matter properly and if there shall not be any proper cause, order of detention shall not be given after arrest under section no. 54 of the Criminal Procedure Code.
The Court said about remand given under section 167 of the Criminal Procedure code, no accused shall be given remand to police. If it shall be necessary to make an interrogation in the interest of investigation, then only the Investigation Officer may do that in a separate room of the jail. In its opinion the Court further said that, for giving remand in any case relevant Magistrate shall have to be sure that, specific policy has been followed in that case. In this case the Magistrate shall have to hear the saying of the arrested and his advocate.
Above all, Metropolitan Sessions Judge or Sessions Judge shall ensure the order of remand. Arrested persons shall have the opportunity of opposing or objecting in there also. For giving remand in this case medical cheek up shall have to be done instantaneously and if the arrested person shall complain about torture after completion of remand, then medical cheek up shall have to be done again. If the doctor (Physician) shall become sure about torture, Magistrate shall take lawful measure against the investigation officer immediately without any formal petition.
The court further mentioned that, if there shall be a requirement of interrogation of someone, then interrogation of the arrested person of a jail shall have to be done in a glass room in presence of an advocate appointed by him and his relatives. So that in the interest of the investigation relatives and advocate of the arrested person shall not hear any question-answer. But they may observe on the matter whether or not any torture is inflicted. But we did not follow the above mentioned direction.
- Arafat Hosen Khan and Kazi Ataul-Al-Osman
In Bangladesh Legal Aid and Services Trust vs. Bangladesh (55 DLR (HCD) 2003 363), the High Court Division of the Supreme Court of Bangladesh provided elaborate guidelines in the form of fifteen directives on arrest without warrant, detention, remand and treatment of suspects to be followed by law enforcement agencies and magistrates. Subsequently, in Saifuzzaman vs. State and others (56 DLR (HCD) 2004 324) the Court issued guidelines to be followed by the government, magistrates and police in respect of arbitrary arrest, detention, investigation and treatment of suspects. Bangladesh Legal Aid and Services Trust (BLAST) filed their writ petition in 1998, while the latter petition came before the Court in 2002.
In the BLAST case, the Court directed that the legislature consider amending sections 54, 167, 176 and 202 of the Code of Criminal Procedure dealing with the powers and functions of police and magistrates. The proposed amendments of these sections explicitly ensure accountability on the part of the police and magistrates while dealing with issues relating to arrest of a person in suspicion of any offence, detention in custody, investigation manner, persons empowered to investigate, duties of magistrates in case of detention and custodial deaths. It further observed that the existing provisions of sections 54 and 167 of the Code (which provide police with powers to arrest without warrant, and magistrates to place persons on police remand, respectively) are inconsistent with the constitutionally guaranteed rights to equality before law and equal protection of law, to be treated in accordance with law to life and personal liberty, to protection against arbitrary arrest and detention, and to ensures fair trial in criminal prosecution (Arts 27, 31, 32 33 and 35 respectively)
The BLAST Guidelines provide that in order to prevent torture, or cruel or inhuman punishment or treatment, a police officer shall not arrest any person under section 54 of the Code for the purpose of detaining him under Special Powers Act, 1974, and the magistrate shall not make any such order of detention. Lacking the necessary knowledge, magistrates often grant detention of arrestees in such cases. Clearly, arrest under Special Powers Act is preventive in nature. A person is arrested under this Act not for his involvement in any offence; rather to prevent him from getting engaged with any prejudicial activity. The Court ruling requires every arresting officer to disclose his/her identity to the arrestee/detainee, and to inform their relatives about the arrest. The Guidelines also require the officer to record all information relating to the arrest of the person in an arrest memo. In a particularly important measure, designed to prevent torture, a police officer is required to record any marks of injury on an arrestee, and to take him to the nearest hospital for treatment. The police officer shall furnish reasons for arrest within three hours of bringing the person to the police station and allow the arrested person to consult a lawyer of his choice. A police officer shall incorporate reasons as to why investigation could not be completed within 24 hours of arrest of a person under section 54 of Cr. P. C (if this occurs), and why he considers that the information regarding the allegations well founded along with transmitting a copy of the case diary. The magistrate must be satisfied with the reasons stated in the forwarding letter of the police officer before making any order for detention in jail. Otherwise he shall release the person. For interrogation purposes the accused shall be kept inside a room in the jail as prescribed by the Court within the view but not hearing of a close relative or lawyer of the arrestee, rather than in police custody per se. In the application for taking the accused on remand in police custody for interrogation, the investigating officer shall state grounds for taking the accused to custody.
These Guidelines, though not systematically observed, have played an essential role in safeguarding vulnerable persons from the threat of violence in custody by being cited in lower courts and, in the course of writ petitions to the High Court, to prevent persons being taken on remand or being maltreated while on remand. For instance, in 2005 a Division Bench of the High Court directed the government to show cause as to why the case against Mr Shaibal Saha Partha, who was falsely arrested and detained after allegedly sending an email threat of a grenade attack to the former Prime Minister Sheikh Hasina, should not be quashed. Mr Partha was later released on Court order.
But a more systematic approach is necessary. To incorporate the guidelines made by the judiciary, certain initiatives need to be taken. It is critical that the government as well as the police change their mindset by avoiding the use of unlawful methods of interrogation on an accused and only bring them to justice under the due process of the law. To make the law effective, law enforcement personnel have to be given proper training consistent with fundamental rights. The government must be more vigilant to prevent and to punish instances of arbitrary arrests, remand and custodial violence. The government must also ensure police effectiveness and accountability, both of which go hand in hand.
The BLAST judgment highlighted the need to ensure effective policing alongside safeguards for arrestees and detainees. Reformation of the existing police code is a prerequisite for its effective function. Monitoring cells could be established in different police stations to identify if there is any abuse of power by the police under sections 54 and 167 of the Code; unless benefits like salary, ration and other social incentives are provided, the police cannot work fairly and without influence. In order to ensure accountability and improve the service of the police, the Government had earlier initiated a ‘Draft of Police Ordinance, 2007’ to reform the century and a half old existing Police Act of 1861. However, no such initiative was taken for the implementation of this draft Ordinance so far. We hope that the 150th anniversary of the Police Act can best be celebrated by observing its demise and its rebirth in the form of a new Police Act that incorporates the High Court’s BLAST Guidelines. This would usher in a new era of police effectiveness on the one hand and accountability on the other.
Assignment on Torture Responsibility and Fundamental Right Violation
The criminal laws prevailing in Bangladesh do not have the definition of torture in particular. The definition of torture as stated in the Article-1, of the Convention against Torture and Other Cruel, Inhuman, or degrading Treatment or Punishment is as follows:
“Torture” means any act by which sever pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
But in Bangladesh such kind of definition of torture has not been enacted yet. However the Bangladesh Penal Code 1860, and the Criminal Procedure Code 1898 provide some definitions of offences and procedures to be followed which very narrowly covers the area of torture.
In the Bangladesh Penal Code Chapter XVI contains the offences affecting the human body-
Offences affecting Life (Section 299-311)
Offences causing miscarriage, injuries to unborn child and concealment of birth. (Section 312-318)
Offences relating to Hurt (section 319-338A)
Offences relating to wrongful restraint and wrongful confinement (Section 339-348)
Offences relating to criminal force and assault (Section 339-358)
Offences relating to kidnapping, abduction, slavery and forced labour (Section-359-374)
Offences relating to rape (Section 375-376)
Unnatural offences (Section 377)
The offences mentioned above are all cognisable offences which means that in case of an information given to the police relating to the commission of such offences the police can arrest such person involved with the offence committed without any warrant issued from the Magistrate.
In case any of the offences mentioned above is caused the procedure enumerated in the Criminal Procedure Code 1898 is followed. Part V, Chapter XIV of the Code of Criminal Procedure deals with the Police and their powers to investigate. As per section 154 when any information relating to any commission of a cognisable offence if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant and every such information whether given in writing or reduced to writing shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer. This is generally known as FIR (The First Information Report).
It has been discussed earlier that there is no specific definition of torture in the Penal Code of Bangladesh. If any injury is sustained by any person either the accused shall be charged with hurt, grievous hurt, attempted to murder, murder, kidnapping or abducting etc. if any of the these element is present. But no criminal liability of torture can be imposed upon the accused. According to the definition of torture it means to cause pain or suffering, whether physical or mental, on a person for the purposes of obtaining any unlawful gain. But the Bangladesh Penal Code did not mention anything about such offences. Though it has stated about the offences affecting the human body but not the offences affecting the human body with a view to obtain any unlawful gain. Therefore the law relating to torture in Bangladesh is very inadequate to cover the crime of torture.
Torture Committed by the Governmental Agencies,
· Torture by Police:
At present it has become a major social issue, which has threatened the fundamental rights of the people in Bangladesh. There are many reports of death in police custody mostly due to torture. The Police have been given immense power in Bangladesh. According to section 54 of the criminal procedure code the police can arrest anyone whom it suspects to be involved with any crime. And after the arrest police forward the person before the magistrate with a prayer for remand under section 167 of the criminal procedure code. And if remand is approved by the Magistrate the arrested person is taken into the police custody for interrogation for the interest of investigation. And in the name of interrogation usually the police torture the arrested person to obtain information or confessional statement. Now a days it has become a practice by the police and they also take money from the arrested person just not to torture him. After the expiry of the remand period the arrested person is brought before the Magistrate and if there is any confessional statements the Magistrate records it and the police also may pray for further remand.
There is no provision of compulsory medical examination of the arrested person after the remand period and therefore the police have the opportunity to utilize the situation. If at the time of appearing before the Magistrate it appears to him that the person is sick he may be sent to the hospital for treatment and medical examination and the arrested person may also apply before the magistrate for medical examination. There are no specific procedures to be followed in case of death in police custody. The same procedure mentioned earlier is followed.
There have been several cases of conviction of police officers for causing death in custody.
The leading cases are-
1. Arun Murder Case,
2. Yasmin Murder Case,
3. Rubel Murder Case.
Torture by Army:
In the recent past due to the rise of terrorist activities and crimes in the country the Government deployed the Army to arrest the top criminals. The Army in the name of arrest of the criminals arrested thousands of people without any proper ground and put them into torture to obtain information whether they can get it or not. There have been 44 reported deaths at the time of the operation by the army during the period of 16 October 2002 09h January 2003. But not a single case was investigated and the Government on 24 February 2003 passed an Act called ‘Joutha Abhijan Daemukti Ain-2003 by which all the acts of the army at the time of the operation from 16 October- 9 January 2003 were legalised and it has been also contended in the said Act that no action of the army during the said period can be challenged in any court.
Constitutional Safeguards against Torture:
Though there are no specific laws relating to torture in Bangladesh hence the Constitution of Bangladesh provides safeguards against torture. It has been made a fundamental right under the Constitution. Article 35(5) of the Constitution provides that “No person shall be subject to torture or to cruel, inhuman or degrading punishment or treatment.” Bangladesh urgent Need for legal and Other Reforms to Protect Human Rights.
For decades, successive governments in Bangladesh have failed to curb serious human rights violations arising from the use of legislation and widespread practices in the law-enforcement and justice system which violate international human rights standards.
These violations include torture, deaths in custody; arbitrary detention of government opponents and others; excessive use of force leading at times to extrajudicial executions; the death penalty; sporadic attacks against members of minority groups; and acts of violence against women. Over years, Amnesty International has reported on all these human rights violations.
In this report, Amnesty International is highlighting in particular its concerns with regard to two specific laws that facilitate endemic human rights violations in Bangladesh: the Special Powers Act (SPA) which allows arbitrary detention for long periods of time without charge, and Section 54 of the Code of Criminal Procedure (Section 54) which facilitates torture in police or army custody.
Amnesty International recommends that the Government of Bangladesh repeals the Special Powers Act. It is further urging the government to review the Code of Criminal Procedure in order to establish clear and enforceable safeguards against abuse of Section 54 resulting in torture; to ensure that law enforcement agencies understand that torture is a criminal act; and to bring perpetrators of torture to justice.
Amnesty International also believes that the government should urgently address factors which contribute to human rights violations, such as impunity and corrupt practices in law enforcement, and establish an independent, impartial and competent body, such as a national human rights commission, to investigate human rights violations. Amnesty International would welcome the creation of such a body with appropriate power to investigate, and forward their information to the prosecutors so that they undertake prosecution of offenders. Such a body should, in collaboration with the Bangladesh Law Commission, review all laws that allow for impunity.
The implementation of these recommendations would be a decisive and welcome step towards the fulfilment of Bangladesh’s human rights obligations under international human rights treaties to which Bangladesh is a state party. These include the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women.
The current report also makes recommendations about the steps the government should take to ensure proper training of the law enforcement personnel and proper monitoring of their conduct so that they do not violate human rights.
ARBITRARY DETENTION, UNDERMINING THE JUDICIAL SYSTEM:
Each year, thousands of people are arbitrarily detained under administrative detention laws which deny them access to judicial remedies. The most commonly used of these laws is the Special Powers Act, 1974 (SPA).
The SPA overrides safeguards against arbitrary detention in excess of 24 hours in Bangladeshi laws. It allows the government not only to detain anyone without having to justify the detention before a court, but also to keep the detainee in prison initially for up to four months or, in certain cases, indefinitely, without charge.
Amnesty International believes that states should not detain people unless they are charged with recognizably criminal offences promptly and tried within a reasonable period; or unless action is being taken to extradite or deport them within a reasonable period. Human rights standards relating to the rules of evidence and standard of proof to be applied in the criminal justice system have been prescribed in order to minimize the risk of innocent individuals being convicted and punished. It is unacceptable for governments to circumvent these safeguards and Amnesty International believes that it is a violation of fundamental human rights for states to detain people whom they do not intend to prosecute or deport.
The SPA was promulgated by the Awami League Government of Sheikh Mujibur Rahman on 9 February 1974. It allows the government to detain anyone on suspicion of involvement in a “prejudicial act”, defined as follows:
“2. DEFINITION – In this act, unless there is anything repugnant in the subject or context, -
(f) “prejudicial act” means any act which is intended or likely –
(i) to prejudice the sovereignty or defence of Bangladesh;
(ii) to prejudice the maintenance of friendly relations of Bangladesh with foreign states;
(iii) to prejudice the security of Bangladesh or to endanger public safety or maintenance of public order;
(iv) to create or excite feelings of enmity or hatred between different communities, classes or sections of people;
(v) to interfere with or encourage or incite interference with the administration of law or the maintenance of law and order;
(vi) to prejudice the maintenance of supplies and services essential to the community;
(vii) to cause fear or alarm to the public or to any section of the public;
(viii) to prejudice the economic or financial interests of the State;”
Two authorities can invoke the SPA – a) the Government Section 3.1 of the Special Powers Act, 1974 (SPA) , and b) the District Magistrate or an Additional District Magistrate Section 3.2 of the SPA. A SPA detention order issued by either of these authorities has the status of a warrant of arrest and is applicable in all parts of the country. A SPA detention order made by the government can remain in force indefinitely subject to confirmation by an Advisory Board (see below) but an order made by the District Magistrate or an Additional District Magistrate remains in force for 30 days “unless in the meantime it has been approved by the Government”. Section 3.3 of the SPA.
In practice, when the government invokes the SPA, it is invariably to detain members of opposition parties. For example, see, Bangladesh: Senior Awami League politician in danger of torture (AI Index: ASA 13/002/2003 When the district magistrates invokes the Act, it is usually to secure the detention of someone whose release – whether or not on bail – would, in their opinion, cause the commission of a “prejudicial act”.
Under the act, the government can even determine the place and the condition of detention of the detainee:
POWER TO REGULATE PLACE AND CONDITIONS OF DETENTION -
Every person in respect of whom a detention order has been made shall be liable
(a) to be detained in such place and under such conditions, including conditions as to discipline and punishment for breaches of discipline, as the Government may, by general or special order specify: and
(b) to be removed from one place of detention to another place of detention by order of the Government.”
The SPA provides that the grounds on which a detention order has been made should be communicated to the detainee “as soon as may be” but no later than 15 days from the date of detention “to enable him to make a representation in writing against the order”. However, there is no requirement to supply all the information on which the order is based to the detainee so that he/she knows the basis for the detention. The authority can refrain from disclosing “the facts which it considers to be against the specific interest to disclose”. Sections 8.1 and 8.2 of the SPA.
The government is required to constitute an Advisory Board (AB) consisting of two persons “who are, or have been, or are qualified to be appointed as, Judges of the High Court” and a third person “who is a senior officer in the service of the Republic”, all appointed by the government. It is also required to place before this AB, within 120 days from the date of detention under the SPA order, “the grounds on which the order has been made and the representation, if any, made by the person affected by the order”. There is no right of legal representation before the Board.
The AB shall consider material placed before it and seek further information from the government or the detainee if necessary and submit its report to the Government within 170 days from the date of detention. In this report “the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned” will be specified. If the AB approves the grounds for detention, the prisoner shall remain in detention indefinitely and the only remedy will be a review of the case by the AB every six months. However, a detention order under the SPA may at any time be revoked or modified by the government. Sections 9, 10, 11, 12, 13 of the SPA.
The SPA provides immunity from prosecution for the use – or abuse – of the Act by the government even when this contravenes fundamental rights.
“34. BAR ON JURISDICTION OF COURTS –
Except as provided in this Act, no order made, direction issued, or proceeding taken under this Act, or purporting to have been so made, issued or taken, as the case may be, shall be called in question in any Court, and no suit, prosecution or other legal proceeding shall lie against the Government or any person for anything in good faith done or intended to be done under this Act.”
To ensure the supremacy of the SPA, it provides:
“34B. ACT TO OVERRIDE ALL OTHER LAWS -The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Code or in any law for the time being in force.”
Although the SPA gives a wide discretion to the detaining authority to act according to its own opinion, in practice, most detention orders are declared unlawful by the high court – but only on procedural grounds. This is because the Constitution empowers the High Court to satisfy itself that a person is detained in custody under a lawful authority. Obaidul Huq Chowdhury, Special Powers Act, Case Law: Abdul Latif Mirza Vs. Bangladesh 31 DLR (AD)1, Al-Afsar Press, Dhaka, 1996, p.15.
Lawyers seeking to overturn a SPA detention order identify omissions or errors in the application of the SPA which allow the High Court to declare such orders illegal. For example, the grounds given may not fit the definition of “prejudicial act”, or the grounds for detention may not be communicated to the person within 15 days, as required.
According to a parliamentary sub-committee studying the use of the SPA from its inception in February 1974 until December 1998, at least 69,010 people had been detained under the law during this period. Of these, 68,195 (98.8%) detainees were eventually released after their detention was declared unlawful by the High Court on the grounds, for example, that the SPA orders had been vague, issued by unlawful authority, not placed before the Advisory Board within 120 days, or that different reasons for detention were mentioned in the order and in the affidavit-in-opposition, or the detaining authority failed to communicate the grounds for detention to the detainee within 15 days, or it failed to produce the necessary papers in court, or because of delays in ordering an extension of detention. See: ‘SPA mostly misused’, Daily Star, 8 September 2000. The three member sub-committee submitted its report to Parliament in September 2000, but opposed a proposed amendment to the SPA which would provide for financial compensations in those SPA orders declared unlawful by the High Court.
Calls for the repeal of the SPA have come from the Bangladeshi legal community and human rights organizations. It has also come from political parties but only when they are in opposition. When in government, they have defended the use of the SPA and maintained it.
A rare pledge by any government to repeal the SPA was made by the current Prime Minister, Begum Khaleda Zia, in her “Speech for the Nation” delivered on 19 October 2001 in Dhaka:
“Dear brothers and sisters,
Now I shall give you some good news.
We have finalized our new government’s 100-days activities. …
Following are the highlights of the programme:
Observing a day to thank the voters for the victory of the four-party alliance. ….
Starting the process of repealing the Public Safety Act (PSA) and Special Power Act (SPA).
Starting legal process for releasing the persons who are in prison without trial and political prisoners.Repealing all previous unfair administrative orders…
Starting the process of judicial inquiry into the much talked about bomb explosions.” Excerpts from the – Speech for the Nation – by Begum Khaleda Zia, 19 October 2001, Dhaka (http://www.bangladeshgov.org/pmovisited 19/03/03, 17:30gmt).
Despite this pledge, the government continued to detain people under both the Special Powers Act and the Public Safety Act. Of these two laws, the Public Safety Act, which had been enacted by the previous government in February 2000 and which denied certain categories of prisoners the right to appeal for release on bail, was repealed by Parliament on 2 April 2002. However, the Special Powers Act still remains in force.
TORTURE IN BANGLADESH:
For many years, torture has been the most widespread and persistent human rights violation in Bangladesh but has been routinely ignored by successive governments since Bangladesh’s independence in 1971.
Children, women, the elderly, opposition politicians, criminal suspects, and innocent bystanders in the streets, have all been victims of torture. Perpetrators are most often police personnel but members of the armed forces carrying out law enforcement duties have also been involved in torture.
Methods of torture have included beating with rifle butts, iron rods, bamboo sticks, or bottles filled with hot water so they do not leave marks on the body, hanging by the hands, rape, “water treatment” in which hose pipes are fixed into each nostril and taps turned on full for two minutes at a time, the use of pliers to crush fingers, and electric shocks.
The failure to curb torture and impunity,Successive governments in Bangladesh have failed to prevent torture, despite provisions in the Constitution of Bangladesh and their obligation to provide durable and effective protection against torture to the people in the country under treaties which Bangladesh has ratified. These treaties – with the dates they were ratified – include: the International Covenant on Civil and Political Rights (6 September 2000), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (5 October 1998), Convention on the Rights of the Child (3 August 1990), and the Convention on the Elimination of All Forms of Discrimination against Women (6 November 1984).
Amnesty International has documented instances of torture in Bangladesh for many years. In November 2000, it published a report entitled Bangladesh: Torture and impunity AI Index: ASA 13/07/00 , which concluded that law enforcement agencies used torture for a variety of reasons, including to extract money from detained suspects or their families; as favour to local politicians in return for a bribe; and to obtain confessions from detainees.
Impunity is one of the major reason why torture continues. Government authorities have persistently failed to bring perpetrators of torture to justice. Allegations of torture are rarely investigated, particularly when victims are members of opposition parties. On the rare occasions when allegations of torture have been investigated, this has usually been due to a public outcry generated by the death of the victim. In other cases, victims who have filed complaints about torture in police custody have been put under pressure by police to withdraw the case. This has most often been done by threats and intimidation, but in some instances, money has been offered to the victim in return for the withdrawal of the case as “out of court settlement”.
Furthermore, judicial proceedings against a public employee – including a police officer – can proceed only if the government authorises that proceeding. Section 197 of The Code of Criminal Procedure (1898) [as modified up to 30 September 1993]. In practice, the government rarely does so.
In its November 2000 report, Amnesty International urged the Government of Bangladesh to establish clear and enforceable safeguards against abuse of administrative detention procedures resulting in torture; to ensure that magistrates do not ignore safeguards against unlawful detention when considering police request for prisoners’ remand; that magistrates ensure physical presence of the prisoner before them as required by law; that they do not ignore signs of torture on the prisoner’s body or the prisoners’ allegations of torture. It also urged the government to ensure investigation of every allegation of torture through an independent and impartial inquiry; to make public the findings of all such inquiries ensuring that perpetrators are brought to justice; to introduce training for police, including in professional methods of investigation which exclude torture and by making clear to them that torture is a criminal act punishable by law; and to ensure that victims or their families are compensated.
Amnesty International sent this report to the then Prime Minister and to various government authorities in Bangladesh. In addition, Amnesty International members brought the matter to the attention of the Awami League government through letters or in representations they made to a number of Bangladesh diplomatic missions.
However, by the end of the tenure of the Awami League government, Amnesty International had received no substantive response to its recommendations, nor was it aware of any effective measures taken by the government to address the issue of torture and impunity in the country.
In January 2002, Amnesty International brought to the attention of the new BNP government its longstanding concern about torture. To date the organization has received no reply from the current BNP-led government either.
Government blocking judicial processes against torture;
In April 2002, Amnesty International raised serious concern about steps taken by the Government to stop disclosure of information about a case of torture to a court. The prisoner, an opposition politician, was reported to have been held in early March 2002 in army custody and severely tortured. See Bangladesh: Government to stop disclosure of information on torture to the court (AI Index: ASA 13/004/2002), Amnesty International 19 April 2002.
<http://web.amnesty.org/library/Index/ENGASA130042002?open&of=ENG-BGD>
The High Court ordered on 3 April 2002 that:
”To ascertain whether the accused was subjected to any torture as alleged, it is necessary to obtain a statement from the I.O. [Investigating Officer] who took the accused on remand and kept him in his custody for the purpose of interrogation for more than five days, for about seven days. So, he must explain in which places the accused was kept during this period of about seven days. Whether the accused was taken to the cantonment [military area] and if so, under whose order or authority”.
This High Court order was stopped on 8 April 2002 through a ”stay order” issued by the Appellate Division of the Supreme Court on an appeal by the Attorney General on behalf of the government. The High Court had also ordered on 3 April 2002 that a new medical board should be set up to examine the prisoner as there were grounds to believe that a previous medical board had failed to record or disclose the details of the alleged torture to the court. This order was also stopped by the same ”stay order” issued by the Appellate Division, through an appeal by the government.
Amnesty International has serious concerns in relation to such developments. It is the obligation of the authorities to investigate promptly, effectively, independently and impartially all allegations of torture, and to bring perpetrators to justice. Stopping the process of investigation reinforces a climate of impunity, violating not only fundamental rights enshrined in the Bangladesh Constitution but also international human rights standards. Article 12 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Bangladesh is a party, states:
”Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”
Amnesty International was particularly concerned that the Government, instead of ensuring that Bangladesh’s competent authorities proceeded to a prompt and impartial investigation of the allegations of torture, was effectively blocking such an investigation. To date, no investigation of the allegations of torture made by the prisoner has been carried out.
Legislation facilitating torture;
While the constitution of Bangladesh guarantees fundamental human rights and specifically forbids torture and while torture is a criminal act under the Penal Code See Bangladesh: Torture and impunity (AI Index: ASA 13/07/00), Amnesty International, November 2000, section 7.1 , a number of laws in Bangladesh create the conditions which facilitate torture. The most commonly used of these is Section 54 of the Code of Criminal Procedure (Act V of 1898). Section 54 enables the police to arrest anyone without a warrant of arrest and keep them in detention for up to 24 hours on vaguely formulated grounds – for details, see Appendix 1.
Any person arrested by the police can be detained for up to 24 hours. Section 61 of the Code of Criminal Procedure (Act V of 1898) [as modified up to September 1993], Bangladesh Government Press, Dhaka, 1993. At the end of this period, the prisoner should be either released or produced before a magistrate – either to be formally charged with a criminal offence or to be remanded in custody for further investigation. According to reports from many sources, detainees arrested by the police are usually offered the option to buy their release through a bribe.
There is reportedly a lack of due diligence by magistrates in exercising their powers. They do not scrutinize the case to ensure that there are objective and legitimate grounds for remand, and do not record the reasons for ordering further remand in police custody – although this is a requirement under the Code of Criminal Procedure. Section 167 of the Code of Criminal Procedure There are persistent reports that magistrates do not take allegations of torture seriously, and rarely seek an investigation of these allegations. Often, they do not even record them.
Exact statistics on the number of people arrested under Section 54 are not available, partly due to the fact that the detention of many detainees who are released after the payment of a bribe is never recorded.
In all cases of detention under Section 54 of the Code of Criminal Procedure reported to Amnesty International, the detainees claimed that they had been tortured and that torture began from the moment of their arrest.
3.4 Legal immunity from prosecution to perpetrators of torture
On 9 January, President Iajuddin Ahmed issued “The Joint Drive Indemnity Ordinance 2003″ which provided impunity to “members of the joint forces and any person designated to carry out responsibilities in aid of civil administration during the period between 16 October 2002 and 9 January 2003″. Under the ordinance, no civil or criminal procedure could be invoked against “disciplinary forces” or any government official for “arrests, searches, interrogation and [other] steps taken” during this period.
The Ordinance related to “Operation Clean Heart” which started on 17 October as a campaign against crime carried out jointly by army and police forces. The campaign was the government’s response to growing concern within Bangladesh and the international community about the continuing deterioration in law and order, including a rise in criminal activity, murder, rape and acid throwing.
As the campaign proceeded, there were mounting allegations of torture in army custody. At least 40 men reportedly died as a result of torture after being arrested by the army. The government acknowledged only 12 deaths and claimed they were due to heart failure. Families of the victims and human rights activists, however, claimed the deaths resulted from severe torture while in army custody.
Amnesty International called upon the government to withdraw the Ordinance, institute an effective, independent and impartial investigation of the deaths and other allegations of torture, and bring perpetrators to justice. Bangladeshi media as well as human rights organizations in the country also expressed serious concern about the ordinance.
Far from withdrawing the ordinance, the government placed it before parliament as “The Joint Drive Indemnity Bill, 2003″. The Bill was amended to provide the aforementioned immunity from prosecution in any “criminal or civil court or tribunal, including the Supreme Court” with the exception of “courts or tribunals constituted under laws governing the security forces and their members”. The “Joint Drive Indemnity Act, 2003″ was passed by Parliament on 23 February 2003.
The legal status of the Act has been challenged before the High Court. Following a petition before the Court by a woman seeking compensation for her brother’s death allegedly as a result of torture in custody during “Operation Clean Heart”, the Court ordered the government on 13 April 2003 to explain within four weeks why the Joint Drive Indemnity Act, 2003 should not be declared illegal. ‘Why indemnity is not illegal – High Court asks government’, the Daily Star, 13 April 2003.
Concern about the Act has continued to be raised within Bangladesh and internationally. At the conclusion of a four day visit to Bangladesh on 27 February 2003, a European Union parliamentary delegation stated:
“The recent indemnity law limiting retrospectively the possibility to prosecute members of the armed forces but in court martial, and totally indemnifying police forces and political personnel from acts of murder, torture, illegal arrests and other Human Rights violations committed during the ‘Operation Clean Heart’ is a blatant violation of the responsibility of Bangladesh to abide the Rule of Law.” ‘European team urges Bangladesh to respect human rights, democratic values’, Agence France-Presse, 27 February 2003, 17:02:00.
To the best of Amnesty International’s knowledge, no army or police personnel has been brought to justice for acts of torture allegedly perpetrated by the joint forces during this period – 17 October 2002 to 9 January 2003.
Amnesty International is concerned that the Joint Drive Indemnity Act, 2003, together with other legislation which allows the government to block judicial proceedings against officials, will only perpetuate the climate of impunity which prevails in Bangladesh, giving yet another signal to those who use torture that they can continue to do so with impunity.
HIGH COURT RULING FOR SAFEGUARDS AGAINST TORTURE:
On 7 April 2003, the High Court announced its judgement on a writ petition in public interest filed before the court in November 1998 by three Bangladeshi human rights organizations and five concerned individuals following the death of a man in police custody in July 1998. The petition sought mandatory guidelines to prevent torture in custody after arrest under Section 54. For more details about the petition, see Bangladesh: Torture and impunity (AI Index ASA 13/07/00), Amnesty International, November 2000, section 7.3, p.25.
An authorised copy of the judgement is not available to Amnesty International at the time of writing. According to press reports and Bangladeshi lawyers contacted by Amnesty International, the judgement restricts arbitrary use of administrative detention law including the Special Powers Act. It makes it mandatory for the police to inform the family members of anyone arrested; for the accused to be interrogated by an investigation officer in prison instead of police interrogation cell, and behind a glass screen so that his/her family members and lawyers can observe whether or not he or she is being tortured; and for the detainee to receive medical examination before and after remand into police custody. It empowers the courts to take action against the investigating officer on any complaint of torture if it is confirmed by medical examination. It directs the government to amend relevant laws, including Section 54, within six months to provide safeguards against their abuse, and recommends raising prison terms for wrongful confinement and malicious prosecution.
Amnesty International welcomes these recommendations and urges the Government of Bangladesh to implement them without delay.
LACK OF INDEPENDENT BODIES TO INVESTIGATE HUMAN RIGHTS VIOLATIONS:
Fundamental rights are guaranteed by the Constitution of Bangladesh. These include freedom of movement, assembly, association, thought and conscience, speech and religion. The Constitution also guarantees equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; equal rights for women and men in the public sphere; affirmative action “in favour of women or children or for the advancement of any backward section of citizens”; equal opportunities for employment save in areas where certain sections of the society are under-represented or in religious institutions which require “persons of that religion or denomination” or where the work “is considered by its nature to be unsuited to members of the opposite sex”. Constitution of the People’s Republic of Bangladesh [as modified up to 30 April 1996],
Articles 26-29 & Article 31 of the Constitution states:
“To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”
The Constitution includes provisions against unlawful detention and unfair trials – but it does not oppose administrative detention. Article 35 of the Constitution specifically prohibits torture:
” (4): No person accused of any offence shall be compelled to be a witness against himself. (5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.”
The Penal Code The Penal Code (Act XLV of 1860) [as modified up to 30 September 1991], Bangladesh Government Press, Dhaka, 1998. generally reflects the guarantees of fundamental rights set out in the Constitution. Nonetheless, violations that contravene some of the provisions of the Constitution as well as international human rights law, continue to occur. Of these torture and arbitrary detention are widespread.
Government failure to protect people against human rights violations has followed a clear pattern. Except in cases where there is a public outcry – usually following the death of the victim as a result of torture or rape in custody by police or other security personnel – Bangladeshi governments have hardly ever taken action to investigate the case. Under pressure from public opinion, the government may constitute a judicial inquiry but to Amnesty International’s knowledge, the terms of reference of such inquiries have never been made public. When the inquiry has been completed and its report submitted to the government, the authorities have not made the report public. Except in a few high-profile cases, successive governments have failed to prosecute the law enforcement personnel involved in acts of torture or other human rights violations.
The following case is a recent example: on 24 July 2002, police raided Shamsunnahar hall of residence at DhakaUniversity and subjected dozens of female students to brutal beatings. More than 50 students were reportedly injured. Following widespread condemnation of the action, the authorities ordered a judicial inquiry which submitted its findings in September 2002. The inquiry reportedly confirmed police brutality and recommended that the perpetrators should be punished. However, as in the past, the report of this inquiry was not made public and there has been no news of any action taken by the government against the police personnel involved in the attack.
The failure of successive governments to address human rights violations in a consistent and effective manner points to the desperate need for an independent, impartial and competent human rights watchdog in the country – such as a National Human Rights Commission (NHRC). Human rights defenders and the international community have been urging Bangladeshi governments to set up a NHRC. Both the previous Awami League government and the present BNP government have acknowledged the necessity for its formation, but neither have taken the appropriate action to establish it.
In April 1995, the then BNP Government of Prime Minister Begum Khaleda Zia approved a project to assess the need for a NHRC and make recommendations on its establishment. This project was to start in July 1995, but it was delayed reportedly due to a political crisis in the country.
Work on the project formally began in July 1996 under the then Awami League Government of Prime Minister Sheikh Hasina. The project was supported by the United Nations Development Program which had assisted the establishment of such national institutions in a number of other countries.
In June 1997, Amnesty International published a report: Bangladesh: Proposed standards for a national human rights commission, (AI Index: ASA 13/03/97), Amnesty International publication, June 1997. in which it reviewed the content of the “Action research study on the institutional development of human rights in Bangladesh” which had been completed within the above-mentioned project. Amnesty International made a series of recommendations aimed at ensuring that the body is fully independent, empowered and effective in the promotion and protection of human rights in Bangladesh and providing redress to victims.
In March 1998, Amnesty International received an updated draft of the “Bangladesh Human Rights Commission Act, 1998″. The draft reflected most of the recommendations made by Amnesty International and Bangladeshi human rights groups. These recommendations were given in the Amnesty International report, Bangladesh: Proposed standards for a national human rights commission (AI Index: ASA 13/03/97) and subsequent letters to the authorities with further recommendations. It was understood that the draft would be approved by the cabinet shortly and would be sent as a bill to Parliament soon.
However, by early 2000, the government had not yet placed the bill before Parliament. On 27 April 2000, Amnesty International conveyed its concern to the then Government of Prime Minister Sheikh Hasina about the lack of progress with regard to the establishment of the NHRC. It expressed concern about reports that a draft bill finalised and approved by the cabinet in April 1999 had been sent to a special review committee because the Home Ministry objected to some of its provisions. Amnesty International sought clarification from the government about this delay but received no reply.
In late 2001, Bangladeshi newspapers reported that on 10 December that year a cabinet committee headed by Moudud Ahmed, Minister of Law, Justice and Parliamentary Affairs, had been formed to examine the prospect of setting up the NHRC. Throughout 2002, there were sporadic news reports that work on finalizing a draft bill for a NHRC was under way.
On 23 January 2003, it was reported that the cabinet committee formed in December 2001 had finalized the draft bill, and that it would be placed before parliament on 3 February 2003. So far, however, there has been no further news about the status of the draft bill.
Amnesty International would welcome the creation of a National Human Rights Commission if it is empowered as an independent body to investigate all instances of human rights violations impartially and competently, regardless of the identity of the perpetrator or their links to political parties. However, Amnesty International recommends that such an initiative should be accompanied by a determined government policy aimed at holding the perpetrators of human rights violations fully accountable, thus ensuring that those who violate human rights cannot do so with impunity.
Amnesty International reiterates that while the creation of a national human rights commission can be an important mechanism for strengthening human rights protection, it can never replace, nor should it in any way diminish, the safeguards inherent in comprehensive and effective legal structures enforced by an independent, impartial, adequately resourced and accessible justice system. The creation of a national human rights commission should, therefore, go hand in hand with a thorough review of existing legal and other institutions in order to make these more effective instruments of human rights protection.
In October 2001, Amnesty International published a set of recommendations for the effective protection and promotion of human rights with particular reference to the establishment of national human rights institutions. Amnesty International believes that these recommendations are essential elements to ensure the independence and effective establishment and functioning of such institutions. See National Human Rights Institutions: Amnesty International recommendations for effective protection and promotion of human rights (AI Index: IOR 40/007/2001), Amnesty International publication, October 2001.
Amnesty International calls upon the Government of Bangladesh to incorporate these recommendations, alongside other guidelines such as the “Principles relating to the status of national institutions” (adopted in the UN Commission on Human Rights Resolution 1992/54, known as “the Paris Principles”), in the statute of the proposed national human rights commission in Bangladesh.
AMNESTY INTERNATIONAL RECOMMENDATIONS:
Concerning the Special Powers Act;
Amnesty International considers the Special Powers Act a law designed to bypass safeguards against arbitrary detention. It allows the government to detain people who are not charged with recognizably criminal offences. It circumvents the rules of evidence and standard of proof in the criminal justice system, leaving individuals, who should be presumed innocent unless found guilty by a court, at risk of being punished without trial.
Amnesty International believes that it is a violation of fundamental human rights for states to detain people whom they do not intend to prosecute or deport.
Amnesty International is therefore urging the Government of Bangladesh to repeal the Special Powers Act as it has pledged to do.
Concerning the use of Section 54 of Code of Criminal Procedure;
Amnesty International particularly welcomes the High Court ruling on 7 April 2003 – see section 4 above – for the establishment of safeguards against torture. In support of that ruling, Amnesty International reiterates the recommendations it has made to the present and previous governments of Bangladesh since November 2000. These are as follows.
-Establish clear and enforceable safeguards against abuse of Sections 54 of the Code of Criminal Procedure and other administrative detention procedures resulting in torture.
-Ensure that the magistrates do not ignore safeguards against unlawful detention when ordering a prisoner’s remand into police custody; to that effect, ensure that the prisoners are physically produced before the magistrates when police request a prisoner’s remand into custody, and ensure that the magistrates actively take steps to ascertain whether or not the detainee has been tortured, taking care not to prejudice the detainee’s safety, for example, by asking questions in the presence of the detaining police officers.
-Investigate every allegation of torture through an impartial and independent inquiry to identify perpetrators of torture according to international standards.
-Ensure that all perpetrators of torture and those whose negligence has facilitated torture are brought to justice without delay.
-Make public all reports of previous commissions of inquiry into allegations of torture and any such future reports.
-Provide compensation to torture victims or their families.
Invite the Special Rapporteur of the United Nations Commission on Human Rights on Torture to visit Bangladesh.
-Amend Bangladeshi law to reflect the provisions of the international human rights instruments to which Bangladesh is a party.
-Implement the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Adopted by General Assembly resolution 55/89 Annex, 4 December 2000) – please see Appendix 2.
-Implement the recommendations of the UN Special Reporters on torture to the General Assembly of July 2001(UN Doc A/156/56, para 39 – 3 July 2001).
Concerning police training:
Train police personnel in effective methods of investigation which respects human rights. Make it clear to them that any act of torture including rape and sexual abuse of detainees is a criminal act punishable by law.
Ensure that training on the gathering, analysis and preservation of evidence and other aspects of the investigation of alleged crimes, including techniques of interviewing and taking statements from suspects and witnesses, is designed to develop the capacity of the police to build a case in an efficient manner that avoids reliance on coercion.
Ensure that human rights is a permanent component of police training, reflected in long-term training plans and resources allocation. It should be a key component of all basic training for new recruits. It should also be included in all relevant in-service courses, such as refresher courses, training in crime investigation skills and public order policing.
Ensure that police personnel at all levels know that they will be held personally responsible and accountable for their own actions or omissions. Police personnel at all levels should be made aware that they have a right and duty to disobey orders to carry out acts of torture or ill-treatment.
Ensure that all detainees are given immediate access to relatives, legal counsel, medical assistance and relatives after being taken in custody.
Ensure that the detainees are promptly informed of their rights to lodge complaints about their treatment.
Ensure that special training is given to the police on dealing sensitively with issues of violence against women, as well as how to deal with all women victims of crime, Female guards should be present during the interrogation of female detainees and should be solely responsible for carrying out any body searches of female detainees.
Ensure that children are detained only as a last resort and for the shortest possible time. Special training should be given to the police on the specific rights and needs of children. Training should involve how to deal sensitively with issues of violence against children, as well as how to deal with children that have been victims of crime.
Ensure that all training initiatives are linked to the creation of effective accountability mechanisms.
Establish internal monitoring and investigation procedures to ensure that allegations of human rights violations committed by police are immediately and impartially investigated and those found responsible are brought to justice.
Concerning the creation of a National Human Rights Commission.
Amnesty International encourages the creation of a national human rights commission in Bangladesh if it conforms to Amnesty International recommendations as detailed in its publication entitled:
National Human Rights Institutions: Amnesty International’s recommendations for effective protection and promotion of human rights. See reference in endnote 22.
It urges the Government of Bangladesh to ensure from the outset that such a commission is empowered as an independent body to investigate all instances of human rights violations impartially and competently, regardless of the identity of the perpetrator or their links to political parties.
It recommends that the creation of a national human rights commission should be accompanied by a determined government policy aimed at holding the perpetrators of human rights fully accountable, thus ensuring that those who violate human rights cannot do so with impunity.
It reiterates that the creation of such a commission should go hand in hand with a thorough review of existing legal and other institutions in order to make these more effective instruments of human rights protection.
REMAND PROCEEDINGS - PRACTICE AND PROCEDURE:
This article examines the power of court to authorize detention of an accused person for Investigation under s. 117 of the Criminal Procedure Code. A detention order made under this Section is frequently referred to by criminal practitioners as the "remand order". This article Considers the duty of a Magistrate hearing the application and the rights of the accused person at the remand proceedings. The meaning of the word "remand" is not defined in the Criminal Procedure Code ('Cr.P.C') nor is it found in s. 117 itself. It can be found in s. 259 Cr.P.C. It denotes "re-committal" to custody of a person who has been brought up in custody, see Deepak Mahajan v. Director of Enforcement [1991] Cr LJ 1124 (Del). InState of Maharashtra v. Ramesh Taurani [1997] Supp 5 SCR 463, the court rightfully pointed out: Remand applications are to be filed by the investigation agency to satisfy the Court that there are justifiable grounds to detain an accused already arrested, in police or judicial custody. By such application the investigation agency is required to bring to the notice of the Court the materials collected against an arrested accused to persuade the Court to remand him in custody for the purpose of further investigation. Where an investigation could not be completed within 24 hours after the arrest of the suspect, the police officer must bring the suspect before a Magistrate to obtain an order that the suspect be further detained to enable the police to complete their investigation. Such an order granted by the Magistrate is invariably known as the "remand order". The power to grant such an order can be found under s. 117 Cr.P.C.
Section 117(1) Cr.P.C:
Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or
information is well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the
Accused before the Magistrate. Section 117(2) Cr.P.C:
The Magistrate before whom an accused person is produced under this section may, whether he has or has not jurisdiction to try the case, from time to time authorize the detention of the accused in such custody as the Magistrate thinks fit for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case and considers further detention unnecessary he may order the accused person to be produced before a Magistrate having such jurisdiction or, if the case is triable only by the High Court, before himself or another Magistrate having
jurisdiction with a view to committal for trial by the High Court.
Section 117(3) Cr.P.C:
A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing. Whether Reasons For Making A Remand Order Must Be Recorded Section 117(3) Cr.P.C requires the Magistrate to record his or her reason for authorizing the detention of the suspect under this section.
However in Sundar Singh v. Emperor AIR [1930] Lahore 945, the court held that:
It was argued that the order of remand was illegal as the Magistrate has given no reasons for remanding the prisoner to police custody as he was required to do so, by sub-s. 3 of the aforesaid section. The order of the magistrate is, no doubt, not sufficiently clear in this respect. Although he was not expected to pass any elaborate order, he should certainly have briefly indicated his reasons for remanding the prisoner to police custody. However, it appears that there were some grounds for believing that the prisoner was concerned in a serious conspiracy and further information has been since obtained during the course of the investigation. In the circumstances, the defect in the Magistrate's order cannot be treated as more than an irregularity.
In Lau Kong Peng v. PP [1988] 4 CLJ Supp 156, the High Court cited with approval the case of Sundar Singh (supra), and held that failure to record reasons for making an order under s. 117 Cr.P.C is only a mere irregularity. What is important is that there are some grounds which warrant the detention of the suspect for further investigation. However in Re Syed Mohammad bin Syed Isa & 3 Ors [2001] 3 AMR 3769, the High Court ruled that it was imperative for the Magistrate to record his or her reasons in granting a remand order as it will enable the High Court to review the order if the occasion should arise, as and when an application for extension of remand is made. It could also be argued that the failure to do so may gravely prejudice the person so remanded, see as well Daultram AIR 1933 Or 315. It is respectfully submitted that the language of s. 117(3) Cr.P.C is clear and unambiguous and therefore the court must give full effect to the language of the provision. To hold otherwise would render s. 117(3) Cr.P.C nugatory and meaningless. It must also be noted that a person remanded under this section is being deprived of his liberty and therefore the reasons justifying the deprivation of his liberty must be clearly stated as required under s. 117 Cr.P.C.
In Bilkis Akhter Hossain v. Bangladesh 2 CHRLD 312, where the Supreme Court (High Court Division) Bangladesh said:
The rights to liberty, movement and freedom are such valuable fundamental rights of every citizen that no authority can take them away without due course of law. Every moment's detention should be treated as unlawful detention unless and until the detaining authority can show to the satisfaction of the court that the detention is lawful, and within jurisdiction. Remand Application Must Be Made In Open Court. All remand applications must be conducted in open court where members of public have right of access. This is consistent with s. 7 Cr.P.C. Section 7 Cr.P.C provides that: The place in which any criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open and public Court to which the public generally may have access.It is unfortunate that in some courts, the Magistrates actually go to the lock-ups to grant remand orders instead of requesting the accused to be brought before them in open court. Such practice is highly undesirable as members of public generally have no right of access to the lock-ups and lawyers and family members will not know how long the suspect is ordered to be detained by the Magistrate. By requiring the suspect to be brought in open court, not only will it allow counsel to receive instructions from his client in court, but it will also afford family members an opportunity to see the accused. Effect Of A Failure To Produce Investigation Diary Every police officer making a police investigation must day by day enter in the investigation diary his progress in the investigations (s. 119(1) Cr.P.C).
The investigation diary must contain the
Following information:
(i) The time at which the order, if any, for investigation reached him
(ii) The time at which he began and closed the investigation
(iii) The place or places visited by him
(iv) A statement of the circumstances ascertained through his investigation
An accused person however, does not have a right to inspect the investigation diary as expressly provided by s. 119(2) Cr.P.C. In Lau Kong Peng & Ors v. Public Prosecutor (supra) Elizabeth Chapman J was of the view that the reason why an accused person is not entitled to inspect the investigation diary is simply because the diary may contain the identity of the informant who gave the information which resulted in the investigations into a particular aspect of the case.
Public interest therefore demands that information in the diary is not made available to an accused person as it may endanger the identity of the informants and may deter them from further assisting or giving information to the police in the investigations.
In applying for an order of remand, the investigation authority must transmit the investigation diary to the Magistrate. The transmission of a copy of the diary is mandatory as it enables the Magistrates to decide whether further detention is necessary. It could also be argued that it would be a serious dereliction of duty if the Magistrate did not peruse the case diary before authorizing the detention of the accused. See Trilochan [1981] Cr LJ 173 (D). In Hashim Saud v. Yahaya Hashim [1977] 1 MLJ 259, Harun J held that Magistrates must be fully informed at the time the application for remand is made:
The purpose of a detention under section 117 Cr.P.C therefore is to enable the police to complete investigations. The detention itself is subject to judicial control. The power to detain rests squarely and fully on the magistrate not the police. The magistrate is required to satisfy himself on every occasion if detention is at all necessary and if so to determine the length of time actually required to complete the investigation; section 117(ii) Cr.P.C. If he orders detention he must record his reasons for doing so; section 117(iii) Cr.P.C. To enable the magistrate to make the decision whether to detain or not the police must supply the magistrate a copy of the investigation diary; section 117(i) Cr.P.C. This copy of the investigation diary to be transmitted to the magistrate must contain all the particulars
as required under section 119 Cr.P.C, that is to say, the police must tell the magistrate all they know so far up to the time of application and not what they think the magistrate need only know .
In Re The Detention of R. Sivarasa & Ors [1997] 1 CLJ 471, 67 people were arrested at Asia Hotel, Kuala Lumpur for allegedly taking part in a demonstration. A remand order was initially obtained under s. 117 Cr.P.C from 10 November 1996 to 13 November 1996. Subsequently an application for extension of 10 days was made to 10 suspects. The Magistrate granted the extension on the ground inter alia that the detention was too short and insufficient for the police to complete their investigation. Apparently the investigation diary relied by the Magistrate consisted only of three sheets of paper typewritten containing the words "Pergerakan Soalsiasat Tahanan" and a timetable of when the suspects were taken out and sent back to detention. On revision it was contended that the Magistrate did not comply with s. 117 Cr.P.C.
The High Court acting on revision held that under s. 117 Cr.P.C, the police officer has a positive duty to transmit to the Magistrate a copy of the entries in the diary prescribed under s. 119 Cr.P.C when producing a suspect before the Magistrate. In this case, no copy of the entries in the diary was transmitted to the Magistrate and was held to be fatal to the application for the extension of remand, as it meant that the Magistrate did not have the prescribed material (especially that referred to under s. 119(1)(d) to act upon in his judicial enquiry in deciding whether or not to order further remand). The three sheets of paper produced in that case did not contain copies of entries in the diary as prescribed under s. 119 Cr.P.C, and certainly did not relate to the day to day proceedings of the officer making the police investigations which were entered into his diary.
Also the timetable listed in the papers could not be considered as copies of the entries prescribed under s. 119. The High Court then set aside the remand order.
In Pendakwa Raya v. Audrey Keong Mei Cheng [1996] 2 CLJ 430, the Court of Appeal made a similar observation:
In our judgment, it is mandatory for the police to produce a copy of the diary as prescribed by s. 119 of the Cr.P.C.
The details in such a diary would provide a true picture of the proceedings in the investigation in compliance with s.
199 of the Cr.P.C. Since the police in this case failed to do this, the registrar would be right, in law, to refuse to order.
The further detention of the respondent:
However it must be stressed that in remand proceedings, the Magistrate need not be concerned with the issue of legality or otherwise of the arrest of the suspect, because to do so would require the Magistrate to embark on an enquiry which in turn would necessitate the calling of witnesses which is not the intention of the s. 117 Cr.P.C procedure. The principle object of s. 117 Cr.P.C is to enable a person arrested to be further detained for longer than 24 hours where it appears that the investigation cannot be completed within that period. What the magistrate has to decide at this stage is merely to consider whether there are any grounds for believing that the accusation or information against the accused is well-founded. Where a remand order is granted in contravention of any of the provisions under s. 117 Cr.P.C, the person detained may seek revision of the detention order by the High Court pursuant to s. 325 Cr.P.C.
The Police Cannot Use s. 117 Cr.P.C To Detain Witnesses For The Purpose Of Conducting Investigations;
In Pendakwa Raya v. Audrey Keong Mei Cheng (supra) it was also held that: We would, without hesitation, hold that it would be an abuse of the process of law for police officers to use the Machinery of s. 117 of the Cr.P.C to compel witnesses or potential witnesses to come forward to assist them in their Investigations. There are other provisions in the Cr.P.C for this purpose. Where There Is More Than One Suspect Where two or more suspects are arrested together and are brought before a Magistrate for an order under s. 117 Cr.P.C, the Magistrate must consider whether or not to grant a remand order to each suspect individually. In Re Syed Mohammad bin Syed Isa & 3 Ors (supra), Abdul Wahab Patail J at p. 3786 held: …
The record does not show the question of remand was considered in relation to each suspect as an individual. In other words, the circumstances of each individual, as to whether he ought to be remanded or not, are not shown to be separately considered. A remand order must be in respect of each individual separately, for in doing so separately, it helps the Magistrate to direct and focus his mind to consideration of the necessity of ordering that individual to be remanded.
Duty of Court:
A Magistrate cannot grant a remand order as a matter of course. In Nabachandra v. Manipur Administration AIR [1964] Man 39 at 45, Tirumalpad JC held that: There is an impression among the police …
that the remand of an arrested person should be done as a matter of course. The sooner this impression is gotten rid of, the better it will be. I wish to impress on all the Magistrates as well as on the police that it is the duty of the police to comply with the provision of s. 167(1) of the Cr.P.C and that the Magistrate should insist on such strict compliance and if the police do not satisfy the Magistrate with the documents that a remand was necessary for the purpose of investigation, the Magistrate may release the accused. Although s. 117 Cr.P.C confers the Magistrates absolute discretionary powers to order the detention of a suspect, it must exercise its powers judiciously. In The Re Detention of R Sivarasa & Ors (supra) KC Vohrah J opined:
It will be noted that ss. 28 and 117 have been inserted into the Cr.P.C for a good reason, so that the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with art 5(4) of the Federal Constitution (see also Hariharanand v. The Jailor [1954] Cr LJ 1317 at p. 1321).
In exercising the discretion the Magistrates should be guided by the well known observation of Lord Halsbury in Sharp v. Wakefield [1981] AC 197, in that "discretion" means according to the rules of reason and justice, not according to private opinions; according to law and not humour. It is not to be arbitrary, vague and fanciful, but legal and regular.
It is respectfully submitted that the Magistrates must satisfy themselves that the further detention of the suspects are absolutely necessary in order for the police to complete their investigation. In Re The Detention of R Sivarasa & Ors (supra) KC Vohrah J also cautioned that:
The Liberty of an individual after arrest is at stake and art 5(4) of the Federal Constitution reposes an onerous judicial duty on a Magistrate to decide whether a person should be detained or detained further. It has to be stressed that a Magistrate ought not give remand order in police custody without satisfying himself as to its necessity and that the period of remand ought to be restricted to the necessities of the case (see Bal Krishna v. Emperor AIR 1931 Lah 99). If the necessities of the case for remand or further remand are not shown, no remand order should be made. Although s. 117 Cr.P.C fixes a maximum detention period of 15 days, the term must be limited as much as possible to what is necessary for the object in view (see Kampu 11 CWN 554, Bal Krishna A 1931 L 99).
Rights Of A Suspect At Remand Proceedings:
It is trite law that a suspect has a right to be represented at remand proceedings. This was made clear in Saul Hamid v. PP [1987] 2 MLJ 736. In this case the accused was represented by an advocate during an application by the police to have a continued remand order against the accused. The learned Sessions Court Judge ruled that the counsel had no right of audience during the hearing of the application. On revision Edgar Joseph Jr. J in the High Court held that:
The conclusion that I have arrived at is that generally an arrested person has a right to be represented by a legal practitioner in remand proceedings before a Magistrate under s. 117 of the Criminal Procedure Code unless the police discharge the onus of satisfying the Magistrate that to allow him to exercise that right would result in undue interference with the course of investigation ... the police must adduce sufficient evidence to convince the legal mind that there is sufficient grounds to support their objection.
Although it is not disputed that an accused person has a right to be represented by an Advocate during remand proceedings, it is respectfully submitted that an Advocate, at this stage, has a limited role. An advocate can only make representations to the Magistrate to ensure that the police had complied with s. 117 Cr.P.C requisites and to submit that his client should not be detained for a period more than is absolutely necessary. This is because a Magistrate in exercising his discretion under s. 117 Cr.P.C must be confined to materials found in the investigation diary and satisfies himself that there is some credible information against the accused and that the police need time to complete their investigations. The Magistrate cannot act on the factual submissions of the accused as s. 117 Cr.P.C does allow the Magistrate to act on materials other than those found in the investigation diary. However it would not be out of place for an advocate to place his objection on record in the granting of remand order if no investigation diary is tendered or that the Magistrate had authorized detention for a period of more than 15 days or to voice out any other irregularities in the proceedings. Where a ground of arrest has not been communicated to the accused as required under art. 5(3) of The Federal Constitution, the accused will be well within his rights to point it out to the Magistrate. See Vikram v. State [1996] Cr LJ 1536 at p. 1540.
Whether A Child Could Be Remanded Under s. 117 Cr.P.C;
A "child" is defined under s. 2 of the Child Act 2001 ('CA') as any person under the age of 18; and in relation to criminal proceedings, means any person who has attained the age of criminal responsibility as prescribed in s. 82 of the Penal Code. Section 83 CA provides that "a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with this Act". The Act does not expressly state as to whether a child could be detained under s. 117 Cr.P.C to enable the police to complete their investigations.
The issue was first raised in PP v. N (A Child) [2004] 2 CLJ 176. In this case, N, a child within the meaning of the CA was arrested on suspicion of committing an offence under s. 420 of the Penal Code. As investigation could not be completed within 24 hours, the police produced N before the Magistrate for a remand order pursuant to s. 117 Cr.P.C. The Magistrate realizing that N was a child, ordered that she be detained for four days. Thereafter the Magistrate entertained some doubts as to the propriety of the course of action and thus requested the High Court to review the said order. Augustine Paul J (as he then was) in the High Court held that:
The issue for deliberation is whether the arrest and detention of a child must be under section 117 as contended by the learned Deputy Public Prosecutor or under the Act as understood by the learned Magistrate. The answer, to my mind lies in s. 83(1) of the Act which reads as follows:
Notwithstanding anything contained in any written law relating to the arrest, detention and trial of a person committing any offence but subject to subsections (3) and (4), a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with this Act.
This section is manifestly patent that the arrest and detention of a child shall be in accordance with the Act thereby rendering s. 117 inapplicable as expressly provided. Unlike s. 117, s. 84(2) of the Act deals with the detention of a child and does not prescribe any time period for detention.
However on appeal by the Public Prosecutor, the Court of Appeal unanimously overturned the decision of the High Court and held that as s. 84 and s. 86 CA does not provide for the detention of a child for the purpose of investigations, s. 117 Cr.P.C must and should continue to apply.
Section 83(1) CA cannot, therefore, be taken as having deactivated s. 117 Cr.P.C with respect to the detention of the child after his arrest for the purpose of investigations. The prohibition "shall not be arrested, detained or tried except in accordance with this Act" embodied in s. 83(1) CA does not cover "detention pending investigations." If Parliament had intended to categorically prohibit a child from being detained for investigations for more than 24 hours, it would have said so precisely.
ARRESTS, CUSTODY, BAIL & REMAND:
Power of Arrest:
The Police Officers of Delhi Special Police Establishment may arrest an individual, concerned in any cognizable offence notified under Section 3 of the DSPE Act or against whom a reasonable suspicion exists of his having been involved in the crime, without any warrant of arrest issued by a competent Court. This power is derived from Section 41 of the Code of Criminal Procedure (Cr.P.C). The Officer/s of DSPE may take assistance of the local Police while making arrest, whenever considered necessary. If any woman is to be arrested, she may be arrested between sunrise and sunset and with the assistance of a woman Police Officer, as far as possible.
In case of non-availability of a women Police Officer, a woman relation/ acquaintance could be allowed to remain present until she is released on bail or produced before the competent Court.
The Police Officers of Delhi Special Police Establishment may arrest an individual against whom a warrant of arrest has been issued by a Court and endorsed to him for execution. No discretion is available to Police Officer(s) in executing the warrants of arrest issued by a Court. In case, the individual against whom a warrant of arrest has been issued by a Court cannot be arrested within the time specified in the warrant, a fresh warrant may be obtained after returning the unexecuted one. In cases of individuals to whom it may be advisable to deny use of passport facility, arrest warrants shall normally be obtained to invoke the provisions of Sections 6 and 10 of the Passports Act, 1967.
However, as arrest takes away liberty of an individual, the power to arrest vested under Section 41 Cr.P.C. must be exercised with due care and caution. The power being discretionary must be used with due care to ensure that the human rights of any individual are not violated under any circumstances. The arrest may be made only when it is reasonably felt that the individual so arrested is involved in the commission of a heinous crime and will be prosecuted in the Court of Law for the offences committed by him and if it is feared that he is likely to tamper with or destroy evidence or is likely to evade the process of law. The Police Officers of DSPE must observe guidelines issued in this regard from time to time. The Superintendents of Police must satisfy himself, before Officers working under his control effect an arrest, by evaluating the evidence available against an individual, and need to affect the arrest. If the case has been registered with the approval of the regional office or the Head Office, necessary permission may be obtained from the Competent Authority by sending an arrest proposal to the said authority through the DIG concerned. In respect of public servants, the instructions given in the paragraph below may be observed. Undue publicity for arrests made must be avoided.
In affecting the arrest of a public servant, especially on operational duty, proper steps should be taken to see that the work of the Department is not unnecessarily dislocated. As far as possible, timely information of intention to arrest the public servant may be conveyed to the authority, to which such public servant is subordinate so that suitable alternative administrative arrangements could be made. In case, the arrest cannot be postponed for any exceptional reason and his immediate superior cannot be informed in advance, he should be informed soon after making an arrest of the public servant. A report will be sent to the Head Office detailing the reasons for effecting arrest without giving prior information to the immediate superior Officer of the public servant concerned.
The arrest of personnel of armed forces should be intimated to the nearest Commanding Officer and his/her parent unit.
In case, it is felt otherwise due to any reason, the handcuffs may be used only in accordance with law mandated by the Hon’ble Supreme Court in Prem Shanker Shukla v. Delhi Administration (1980 3 SCC 526) and Citizen for Democracy v. State of Assam (1995 3 SCC 743).
Person arrested to be informed of Grounds of Arrest and of the Right to Bail Every Police Officer arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. If it is a bailable offence, the person arrested should be informed that he is entitled to be released on bail and that he may arrange sureties on his behalf (Section 50 Cr.P.C.). The individual may be informed that he has a right to consult a legal practitioner of his choice. The individual may also be told that he can have his medical examination done and if he requests to be examined by a
Doctor, the same is attended to as per Section 54 Cr.P.C.
The Hon’ble Supreme Court in D.K. Basu v. The State of West Bengal (AIR 1997, S.C.610) has given directions to be followed scrupulously after the arrest of an accused person. Failure To comply with the said directions shall render the concerned Police Officer liable for Departmental action and he will also be liable to be punished for contempt of Court. All DSPE Officers arresting an accused must therefore follow these guidelines.
The directions of the Supreme Court are as follows:
(a) The Police Personnel carrying out the arrest and handling the interrogation of the arrest should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such Police Personnel who handle interrogation of the arrest must be recorded in a register.
(b) The Police Officer carrying out the arrest of the arrested shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrested or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrested and shall contain the time and date of arrest.
(c) A person who has been arrested or detained and is being held in custody in a Police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(d)The time, place of arrest and venue of custody of an arrestee must be notified by the Police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the Police Station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(e) The person arrested must be made aware of the list of rights to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(f) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the Police officials in whose custody the arrest is.
(g) The arrested should, where he requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrested and the Police Officer affecting the arrest and its copy provided to the arrested.
(h) The arrested should be subjected to medical examination every 48 hours during his detention in custody by a doctor on the panel of approved Doctors appointed by the Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.
(i) Copies of all the documents, including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(j) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(k) A Police control room should be provided at all District and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the Officer causing the arrest, within 12 hours of effecting the arrest and at the Police control room it should be displayed on a conspicuous notice board.
Arrest Report:
An arrest report showing the time, date and place of arrest as well as the FIR number with sections of law shall be prepared at the time of arrest by the Investigating Officer as required under section 57 Cr.P.C. and sent to the Magistrate. At least one witness who may either be a member of the family of the arrestee or a respectable resident of the locality may countersign the arrest report. The arrestee shall also countersign it.
CUSTODY OF ARRESTED PERSONS:
If an arrested accused is not released on bail, he should be produced before the Magistrate having jurisdiction over the case in accordance with the provisions of law, at the earliest and in any case within 24 hours (excluding the journey time) as per Section 57 Cr.P.C. and get remanded to Police/judicial custody. In cases where it is not possible to produce the accused before the Magistrate before the fall of night and it becomes necessary for the DSPE Officers to retain the accused in Police custody, he may be lodged in the Branch/ Unit lock-up or in the lock-up of the nearest local Police Station. The SP should have a working arrangement with the local Police authorities for using their lock-up facilities. In case the lock-up of the local Police Station is utilized for lodging an arrested accused or the accused who has been remanded to Police custody, at least one Officer of the Branch must be on duty as long as the individual is detained there. In the case of women accused, as far as possible a woman constable should be detailed to guard her in the woman lock-up.
When the accused is arrested on execution of a warrant of arrest in the jurisdiction of the Court issuing the warrant, he should be produced in the said Court at the earliest and in any case within twenty four (24) hours.
Whenever a person is arrested and it appears that the investigation as regards his involvement cannot be completed within the period of twenty-four hours provided in Section 57 of Cr.P.C., the Investigating Officer should produce him before the Magistrate with an application for Police custody remand as per the provisions of Section 167 Cr.P.C. The Magistrate may authorize detention of the accused in such custody for a term not exceeding 15 days and thereafter send the accused to judicial custody as per section 167 Cr.P.C. The Investigating Officer may seek Police custody of the accused, more than once within the first 15 days after his/her arrest, if deemed fit and necessary. Warrant directed to Police Officer for Execution outside Jurisdiction (Section 79 Cr.P.C.).
When a warrant directed to a Police Officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a Police Officer, not below the rank of an Officer-in-charge of a Police Station, within the local limits of whose jurisdiction the warrant is to be executed. The local Police shall, if so required, assist him in executing the said warrant.
Where intimation of arrest or detention is sent by wireless or e-mail or telegram, the information on all the points mentioned in the form should be given succinctly and clearly. Information whether an arrested member has been released on bail pending investigation or trial should also be given to the concerned authorities.
No arrest shall be made within the precincts of the House without obtaining permission of the Speaker. Similarly, no legal process, civil or criminal, shall be served within the precincts of the House without obtaining permission of the Speaker.
A Superintendent of Police in charge of a Branch may remove of the name of proclaimed offender/ absconders from the register on the occurrence of any of the following contingencies:−
(i) Arrest of the accused;
(ii) Death of the proclaimed offender or expiry of 30 years from the date of proclamation;
(iii) Any other good and sufficient reason, e.g., trifling nature of the case or lack of sufficient evidence for a successful prosecution or withdrawal of the case etc.
Lower courts, police flout SC ruling on police remand:
The Law Commission, led by former chief justice ABM Khairul Haque, and the parliamentary standing committee on the law ministry expressed views that the British era CrPC required changes.
By passing remand orders for any duration in excess of three days, many lower courts in the country have been continuously flouting a Supreme Court judgment and also the constitution, legal professionals said.
The very recent instance is that of Oishee and Sumi, being sent on five days’ remand in the case filed in connection with the alleged murder of SB Inspector Mahfuzur Rahman and his wife.
In 2003, the High Court Division of the Supreme Court, in a landmark judgement, directed the lower courts to not grant remand in excess of three days. The verdict was given in a news headliner case titled “Blast versus Bangladesh,” which was a public interested litigation filed the Bangladesh Legal Aid and Services Trust (Blast) regarding torture in the name of remand in police custody.
In the same year, the government appealed against the HC ruling with the Appellate Division.
Additional Attorney General MK Rahman told the Dhaka Tribune:
“The government’s appeal following the Blast verdict is still pending with the Appellate Division. During a hearing on the appeal in August 2010, the apex court asked the government to let it know about the progress in implementing the HC ruling regarding remand.”
Following that, the government on August 23, 2010, issued a circular to remind all the sessions and district judges, the inspector general of police, chief judicial and metropolitan magistrates to implement the HC directions given in the Blast case.
Article 111 of the Constitution of Bangladesh binds all the lower courts to obey any direction given by either of the divisions of the SC.
A Dhaka court on August 11 this year granted five days’ remand to Adilur Rahman Khan, secretary of rights body Odhikar. He was arrested as a suspect on the basis of a general diary under section 54 of the Code of Criminal Procedure. Section 54 empowers law enforcers to arrest someone without a warrant.
However, the HC annulled the order in line with the Blast case judgment as no case was filed against him when he was placed on remand.
The magistrate courts grant police remand under section 167 of the Code of Criminal Procedure 1898. But the word “remand” never appears in that provision.
The relevant section reads: “The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit.”
Recently, the Law Commission, led by former chief justice ABM Khairul Haque, and the parliamentary standing committee on the law ministry expressed views that the British era CrPC required changes.
A magistrate told the Dhaka Tribune: “The police personnel are not trained to find out the real cause and culprits using scientific means. They seek remand so that they can persuade the accused to give a confessional statement before the magistrate. In most cases, police inflict torture on the person in remand to get information about the alleged crimes. The court then gives judgment on the basis of the confessional statement.”
Referring to a recent research on police remand, Zahidul Islam Biswas, research adviser of Blast, told the Dhaka Tribune that police tortures the person in remand in the name of interrogation, flouting the remanded person’s constitutional rights.
Sara Hossain, honorary director of Blast, told the Dhaka Tribune that in most cases, the lower courts did not obey the HC direction. The same thing happened in case of Adilur, she added.
The HC bench of Justice Hamidul Haque and Justice Salma Masud Chowdhury delivered the historic judgment in the Blast case in 2003 that contained some directions on remand.
The judgment observed that remand impaired fundamental rights of citizens and such cases can be brought to the HC.
The judgment also referred to the article 35 of the Constitution of Bangladesh which read: “no person accused of any offence shall be compelled to be a witness against himself;” and, “no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.”
The HC judgment said: if the magistrate considered the accusation made or the information given by the investigating officer as well-founded, he should pass an order for further detention in jail. Otherwise, he should release the person forthwith and take action against the police for acting contrary to law.
SC lawyer Abdul Halim told the Dhaka Tribune: “Lower judiciary is granting police remand continuously without considering merit and ignoring the Blast case ruling.”
He emphasized on developing a mechanism to ensure the abidance of an SC direction. “If the lower judiciary does not obey the SC’s judgments, the entire legal system is bound to collapse,” Halim said.
An additional district judge told the Dhaka Tribune: “The lower courts flagrantly violate the SC judgment granting inconsiderate remands. If this goes on, people will lose their confidence in the judiciary, especially the Supreme Court. That will eventually result in failure to establish rule of law and democracy.”
He also said, as a constitutional duty the HC should take steps against the magistrates who were violating its ruling. “If it does not do so, the image of the court will be tarnished.”
The judge also alleged that people, who were being taken on remand, often had to pay bribes to the police personnel for avoiding custodial torture.
Remand is a source of income for police. They often register false cases against innocent people just to fill up their pockets with the bribe, he added.
These legal regimes- international and domestic- can and often do intersect in two different ways. A first is in regard to content, as international rights are often incorporated into domestic legislation either by reference to the international instrument or in identical or substantially similar terms to it.
A second is in regard to enforcement, as domestic courts often have regard to international instruments either to enforce them directly in monist jurisdictions where this is permitted or to use them as aids in interpreting and applying domestic rules in dualist jurisdictions where direct enforcement is not permitted.
The enforcement of ESC rights is hotly contested and is intertwined with the issue of recognition. Rights are often regarded in black and white terms, as being either fully justifiable or simply inspirational. Because economic and social rights are justifiable with difficulty at best, they are often placed in the aspiration category and thus not recognized as “rights”.
The justifiability of ESC rights is questioned on the grounds that they are too vague to have clear legal content, too costly to implement and thus too political for judicial decision, and too positive to be amenable to court supervision. These are the reasons why ESC rights are recognized e.g. “to the extent provided by law”. And these are the reasons why both the ICESCR and the European Social Charter were, for so long, monitored through state reporting procedures rather than complaints procedures like their sister treaties, the ICCPR and the European Convention on Human Rights. The U.N. Committee on Economic, Social and Cultural Rights (CESCR), the monitoring body of the ICESCR, has responded to the enforcement critique in a number of ways.
One response has been to modify the enforcement mechanisms so that judiciarisation can now be said to be supplementing dialogue. One change was to sharpen the reporting system itself to make it more adversarial in nature. It did this by encouraging the submission of “shadow reports” from national non-governmental organizations and by issuing rather pointed public “Concluding Observations” on the individual national reports. A second response has been to counter the objection of vagueness by issuing a number of documents clarifying the content of rights. In this vein, the Committee has issued General Comments on various rights guaranteed in the ICESCR; it has had Special Reporters named to study particular rights; and it has held “days of general discussion” on individual rights.
A third response has been to address justifiability arguments based on cost and positive nature by clarifying the nature of State obligations under the Covenant. In its General Comment No.3, the Committee defined them as comprising obligations to take steps towards realizing the rights (albeit progressively), to avoid any unjustifiable backsliding (i.e. deliberately regressive measures) in their realization, and to assume a minimum core obligation in regard to each right.
The Committee has also endorsed a “typology” of State obligations which disaggregates them into (1) the obligation to respect (i.e. to refrain from interfering with the rights of individuals), (2) the obligation to protect (i.e. to protect individuals from interference with their rights by others), and (3) the obligation to fulfill (i.e. to provide the object of the right, such as adequate food or housing etc.).
This well-known typology goes some way to responding to objections of justifiability:
An obligation to respect is essentially negative in nature and does not require the use of State resources, an obligation to protect might require State action (such as adopting legislation) but does not place undue strain on State resources; it is only the obligation to fulfill that raises the two obligations – costliness and positive nature – most acutely. Another way of phrasing the Committee’s typology is in terms of State roles rather than State obligations. In this way, the obligations to respect, protect and fulfill suggest that the State can play a negative role as perpetrator of a violation of a right, and positive roles as enabler and a provider of the subject of a right. A focus on the roles played by a State emphasizes the implementation of rights. It also provides a framework through which to analyze rights in a disaggregated way. The notion of indivisibility of human rights and their universality make it almost absurd to erect any artificial glass wall between civil and political rights on one hand and the ESC rights on the other. Additionally, this unnecessary and ill-conceived debate creates an environment where the danger of diluting the significance and immediate nature of the ESC rights looms large.
The National Human Rights Commission, Bangladesh (NHRC).
The National Human Rights Commission, Bangladesh (NHRC) deems its statutory obligation to closely monitor and report back to the government on the status of state compliance with international human rights treaties and conventions at least to the extent signed and ratified by Bangladesh. It is in this connection that the NHRC has undertaken a project to review the status of a number of international human rights instruments ratified by Bangladesh.
The first in this sequel are compliance status reports on ICCPR, CAT, ICESCR, CEDAW, Convention on the Rights of the Persons with Disabilities (CRPD) and an Analysis of decisions on Arrest and Detention and Women Rights, etc.
On the basis of these In 2008, The High Court Division in the case of State vs.Metropolitan Police Commissioner, Khulna and others issued the following directions:
- It is the duty of this Court and all other courts as well as other state departments, functionaries and agencies dealing with children, to keep in mind that the best interests of the child must be considered first and foremost in dealing with all aspects concerning that child.
- The parents of the children who are brought before the police under arrest or otherwise, must be informed without delay Analysis of Decisions of the Higher Judiciary on Arrest and Detention in Bangladesh- A probation officer must be appointed immediately to report to the Court with regard to matters concerning the child.
- Bail should be considered as a matter of course and detention/confinement should ensue only as the exception in unavoidable scenarios.
- In dealing with the child, its custody, care, protection and well being, the views of the child, its parents, guardians, extended family members as well as social welfare agencies must be considered.
- When dealing with children, detention and imprisonment shall be used only as a measure of last resort and for the shortest period of time, particularly keeping in view the age and gender of the child.
- Every effort must be made at all stages for reintegration of the child within the family and so as to enable him/her to assume a constructive role in society.
The Court acted suo motu following publication of a daily Star report “8-year old sued, sent to jail for drug trade” on 24.
April 2008. The court criticised the police for not considering granting bail themselves, for not attempting to find the girl’s guardians, and not informing the Probation Officer so that they could prepare a Social Enquiry Report, all of which they are required to do under the Children Act. Very recently, the High Court Division in the case of BLAST vs. Bangladesh banned corporal punishment in educational institutions in Bangladesh considering the severe effect of the corporal punishment on the mental and physical state, 31 and stature of the Child. The Court observed that laws which allow corporal punishment, including whipping under the Penal Code, Code of Criminal Procedure, Railways Act, Cantonment Pure Food Act, Whipping Act, Suppression of Immoral Traffic Act, Children Rules, 1976 and any other law which provides for whipping or caning of children and any other persons, should be repealed immediately by appropriate legislation as being cruel and degrading punishment contrary to the fundamental rights guaranteed by the Constitution.
- In order to ensure transparency and accountability of actions of the police authorities, it is imperative that the directives of the Supreme Court in BLAST vs. Bangladesh and Saifuzzaman vs. State should be implemented as soon as possible.
- Legislative reform should be initiated in line with the recommendations and guidelines of these judgments.
- Bangladesh should implement obligations under the Convention against Torture through adopting necessary legislative and administrative measures and institutional reform.
Suggestions for Legal Reform:
Analysis of Decisions of the Higher Judiciary on Arrest and Detention in Bangladesh, 31-Writ petition number of 5684 of 2010.- The government should repeal all provisions on impunities of law enforcement agencies and securities agencies for committing torture.
- Take urgent steps to ensure access to detainees, especially during periods of custodial interrogation. Relatives, doctors and lawyers should have access to detainees without delay and regularly thereafter.
- Witnesses including family members and human rights defenders should be protected against possible reprisal by the perpetrators of torture or other human rights violations.
- Interrogation should take place only at official centers and any evidence obtained from a detainee in an unofficial place of detention and not confirmed by the detainee during interrogation at official locations should not be admitted as evidence in court against 32-the detainee;
- The detainee should have the right to have a lawyer present during any interrogation;
- The police officer responsible for arbitrary arrest, detention, and torture should be accountable to the law for his/her criminal wrongdoing in ‘like manner’ as the citizen.
Para32-Report of the Special Reporters on Torture, 2001, UN Doc.A/56/156, July 2001, Para 39.- Section 24 of the Evidence Act 1872 should be amended to include the terms ‘coercion’, ‘torture’ and ‘violence’ along with the terms ‘inducement, threat or promise’ as conditions that make a confession irrelevant and thus inadmissible.
- Modern methods of investigation should be introduced and more forensic facilities should be put in place to detect crime and gather evidence of crime.
- Adequate training should be given to the investigating officers about modern scientific methods of investigation.
The guidelines delivered in the judgments of BLAST vs. Bangladesh and Saifuzzaman vs. State are yet to be implemented by the government by undertaking necessary amendments to the relevant provisions of the Cr. P. C. The government has filed appeals against these judgments and as a result, these cases are still pending in the Appellate Division of the Supreme Court. Implementation of these guidelines requires political will on the part of the government. The National Human Rights Commission of Bangladesh and civil society should vigorously pursue the implementation of these guidelines.
According to a commentator, “The directives of these two judgments are not likely to be implemented by the executive organs of the State on their own volition. Experience suggests that major changes in the way powers are exercised requires sustained Status of Implementation of the Guidelines, Analysis of Decisions of the Higher Judiciary on Arrest and Detention in Bangladesh engagements on the part of the civil society and the legal, 33- Community for implementation.” The National Human Rights Commission of Bangladesh should recommend to the government the implementation of these guidelines to prevent arbitrary arrest, detention and torture and to end impunity of the law-enforcing agencies responsible for such acts.
Arbitrary arrests and detention or torture still occur in Bangladesh. The guidelines of the High Court Division should be implemented immediately and impunity of the perpetrators for arbitrary arrest, detention and torture must also come to an end. The lack of knowledge of human rights and relevant legal safeguards on arbitrary arrest and torture among law enforcement agencies remains one of the major causes of violation of human rights. Human rights law should be widely disseminated amongst the law enforcing agencies. A service oriented, proactive and human rights-conscious police force is considered equally important for effective functioning of the criminal justice system.
Guidelines on Remand:
If the arrested person is taken on police remand, he must be produced before the Magistrate after the expiry of the period of such remand and in no case shall he be sent to the judicial custody after the period, 41-Analysis of Decisions of the Higher Judiciary on Arrest and Detention in Bangladesh 42 Of such remand without producing him before the Magistrate.
- Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the police custody or in the judicial custody under section 167(2) of the Code.
- If a person is produced before a Magistrate with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per item No (iv) above, the Magistrate shall release him in accordance with section 169 of the Code on taking a bond from him.
- If a police officer seeks an arrested person to be shown arrested in a particular case who is already in custody, the Magistrate shall not allow such a prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case.
- If the investigation of the case cannot be concluded within 15 days of the detention of the accused under section 167(2), the Magistrate having jurisdiction to take cognizance of the case or with the prior permission of the Judge or Tribunal having such power can send such accused person on remand under section 344 of the Code for a term not exceeding 15 days at a time.- It shall be the duty of the Magistrate, before whom tilt shall be the duty of the Magistrate, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused under section 167 of the Code.
The court ordered that these guidelines should be forwarded to the Secretary, Ministry of Home Affairs, Chief Metropolitan Magistrates and District Magistrates and ordered that every police station should comply within 3 months from that date.
The Registrar, Supreme Court of Bangladesh, was directed to circulate the requirements as per direction made above. The court also directed that if the concerned police officers and the Magistrates fail to comply with the above requirements, within the prescribed time, they will be rendered liable to be punished for contempt of Court, if any application is made by the aggrieved person in the Court.
In this case, the High Court Division Bench also suggested amendments of the relevant sections, but unlike the BLAST case, it refrained from formulating its own amendments of the relevant provisions of law. The court clearly recognized that it could not direct the Legislature to amend the relevant laws without declaring the existing laws unconstitutional.
According to Dr.Shahdeen Malik, These judgments, it needs to be emphasized, directed major changes in the way the police act.
The police power of arrest and remand had never been scrutinized before and neither had the constitutional safeguards regarding arrest and detention of 43-Analysis of Decisions of the Higher Judiciary on Arrest and Detention in Bangladesh the Constitution been brought to bear upon these powers of police. In such a long-standing practice of unfettered power, these two judgments laid down very exacting details regarding what police can and must do in effecting arrest and
Under the 2003-5 NIP the EC has, in common with other donors, focused on support to aspects of political governance where there have been commitments made to reform and on support for human rights. There has also been a large commitment to security and human rights in the form of support for the UNDP Chittagong Hill Tracts (CHT) Development Facility, which seeks to underpin the CHT Peace Agreement, and a continuous role as the principle donor for UNHCR’s support to the Rohingya refugees. EC support to the Election Commission has ultimately not proved possible to implement, illustrating the difficulties which beset donors in the governance area. However, the EC is funding NGO projects under a call for proposals for civic awareness in preparation for the 2007 elections.
It is respectfully submitted that our fundamental right to freedom of movement ought to be jealously guarded by the judiciary. Magistrates must take time and trouble to ensure that the detention of the accused is absolutely necessary. The remand order cannot be granted merely because the police or investigating authorities require it. The Magistrates must realize that it is also their responsibility to uphold our constitutional right and fundamental liberties.
The UN Standard Minimum Rules for Non-custodial Measures (known as the “Tokyo Rules) state that governments should avoid detaining suspects prior to trial.
(Article 6 of the Tokyo Rules reads :)
6. Avoidance of pre-trial detention
6.1 Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.
6.2 Alternatives to pre-trial detention shall be employed at as early a stage as possible. Pre-trial detention shall last no longer than necessary to achieve the objectives stated under rule 5.1 and shall be administered humanely and with respect for the inherent dignity of human beings.
6.3 The offender shall have the right to appeal to a judicial or other competent independent authority in cases where pre-trial detention is employed.
Unfortunately, there is a significant difference between those ideals and actual practice. The World Pre-trial/Remand Imprisonment List, assembled by Roy Walmesley of the International Centre for Prison Studies, reports that 2.25 million people are held in prison while they await trial. In 6 out of 10 countries the percentage of all prisoners who are awaiting trial is from 10-40%.
However, there are countries whose practice is significantly different. Those with the highest percentage of prisoners on remand are: Liberia, where the prison administration reports that 97% are so held, Mali (89%), Haiti (84%), Andorra (77%), Niger (c.76%), Bolivia (75%), Mozambique (73%), Timor-Leste (71%), Democratic Republic of Congo and India (both 70%), Bangladesh, Paraguay and Peru (all 68%).
The consequences of lengthy remand can be significant. First, because of the frequent turn-over of remand prisoners, most prisons that offer vocational, therapeutic and other activities to the sentenced prison population make those much less available to them. Their detention while awaiting trial can be lengthy, many times it ends up longer than the sentence would have been if the offender were found guilty. Detainees are removed from families, friends and work for a considerable amount of time. They may lose their jobs, and perhaps their families. They may contract an infectious disease while in prison and spread it to their family on return.
For strategies for reducing the amount of time remand prisoners must wait before they are released, see Alternatives to Remand.
Imprisonment in Australia: The Remand Population (Australian Institute of Criminology) 2000 [En]
The use of imprisonment as a punishment continues to be a serious issue for governments and the community. The use of custody on a person who has not yet been given a sentence should be of even greater concern. Official statistics indicate that about 15 percent of prisoners in Australia are currently on remand and have not been sentenced. The decision to remand an accused in custody entails an assessment of whether the person could be considered a threat either to themselves or to the safety of others, usually the victims of the crime, or whether the accused person is likely to appear for trial. In addition, the wider protection of the community in general is also a legitimate reason for the detention of a person in custody. The possibility of the accused not appearing in trial and the seriousness of the charge are other factors affecting remand decisions. Remand practices may have an impact on the size of prison populations. This impact depends on the size of remand arrivals, the rate at which they flow into the correctional system, and the time they spend as remand prisoners. This study uses data from the National Prison Census to examine major trends in remand populations in Australia. (excerpt),
Remand in Custody : Critical Factors and Key Issues (Australian Institute of Criminology) 2006 [En]
In an attempt to identify the factors associated with high and low remand rates the researchers undertook a detailed study of Victoria (which has comparatively low remand rates) and South Australia (which has comparatively high remand rates). Factors associated with increased remand rates included increasing levels of drug and mental health issues, and the informal and formal rules that influence police, police custody sergeants and court bail authorities in their decision to grant bail. Factors associated with lower remand rates included 'enhanced police accountability for bail refusal, improved feedback loops between courts and police, higher transaction costs for custodial remand, and longer bail hearings'. The authors have concluded that the key to good practice in bail decision-making is to ensure that pre-court and non-judicial processes are given due consideration, and they point to the need for enhanced performance monitoring, data collection and research. (excerpt),
Pre-trial Detention - Guidance Note (International Centre for Prison Studies) 2005 [En]
This guidance note explains the problem of pre-trial detention, in terms of the growing number of Remand Prisoners. It also puts forth suggestions to decrease the number of Remand Prisoners, as well as detailing how they should be treated.
Pretrial Risk Assessment in the Federal Court (U.S. Department of Justice) 2009 [En]
The identification of “federal criminal defendants who are most suited for pretrial release without jeopardizing the integrity of the judicial process or the safety of the community, in particular release predicated on participation in an alternatives to detention program” is investigated. (excerpt),
The influence that legal aid has on the decision of an appropriate bail is explained. Sections comprising this report include: introduction; modeling the role of legal aid at the pre-trial detention stage; legal aid and the cost benefit analysis of PTD (pre-trial detention); legal aid in practice; evidence on "costs" and "benefits" (excerpt),
Remand in Custody (CE) 1965 [En]
This is a Council of Europe document: "Wishing to promote and extend the application of those principles relating to remand in custody already recognized in the Convention for the Protection of Human Rights and Fundamental Freedoms" (excerpt),
Concerning Custody Pending Trial (CE) 1980 [En]
This document establishes a framework on the detention of those accused before the date of their trial. It is an effort on the part of the Council of Europe to demonstrate a standard on when pre-trial detention should be either avoided or when it should be put in force. Through that understanding it becomes a valuable resource to compare with other conceptions of when pre-trial detention should be employed.
This United Nations Document details the standards for the use of Non-custodial measures in the criminal justice system.
UN Criminal Justice Assessment Tool -- Detention Prior to Adjudication (UNODC) (2006)
This tool guides the assessment of detention during the period between arrest and sentence. It includes the time spent in the custody of police or other law enforcement agencies, as well as the period after which a court remands a suspect in custody until he or she is adjudicated, and where convicted, sentenced or released. Detention is a particularly sensitive area in the criminal justice process. It is the period most open to abuse, as documented in numerous reports by international inspection bodies. Recognizing the particular vulnerability of detainees prior to adjudication, international human rights instruments provide for a large number of very specific safeguards to ensure that the rights of detainees are not abused, that they are not ill-treated and their access to justice not hindered.
World Pre-trial/Remand Imprisonment List, Roy Walmsley, ICPS
Report on the number and distribution of pre-trial/remand prisoners in the world.
Index of Good Practices in Reducing Pre-Trial Detention
In this first ‘Index’ in a series, PRI looks at good practices in reducing pre-trial detention on the African continent which all these conference declarations highlight as a major problem to be addressed. The practices listed below are not intended as an answer or solution but ways of approaching a solution, since few persons anywhere could seriously point to any one justice system as representing the perfect model. In this paper we distinguish good from best practice since ‘best practice’ imports a value judgment and standard setting; while ‘good practice’ is less exacting and may amount to an activity that shares a number of common features. In the UK, the police prefer the phrase ‘Noteworthy practice’ to avoid any value judgment. (excerpt, document created by Penal Reform International).
Publication on Pre-trial Detention from Soros Foundation
The Spring 2008 issue of Justice Initiative, published by the Open Society Justice Initiative, features several articles discussing the use of pre-trial detention from around the world. In the foreword, by Mark Shaw of the United Nations Office on Drugs and Crime, highlights the international standards on the use and conditions of pre-trial detention as well as some of the problems associated with it. Articles in volume discuss reform efforts from around the world.
Notes and References :
……………………………………………………………………………………………………………………………………
Constitutions of Bangladesh, CrPc, PRB, South Asian crime, HUMAN rights watch, Asian Human Rights Commission (AHRC), ILO Convention 87, Freedom of Association and Protection of the Right to Organise (1948), ratified 1972 , ILO Convention 98, Right to Organize and Collective Bargaining(1949), ratified 1972 ,ILO Convention 111, Convention Concerning Discrimination in Respect of Employment and Occupation (1958), ratified 1972, International Convention on the Elimination of all Forms of Racial Discrimination (CERD),acceded 1979, International Covenant on Civil and Political Rights (CCPR),1966, acceded 2000, Covenant on Economic, Social and Cultural Rights (CESCR),1966, acceded 1998 ,Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), acceded 1984, with reservations relating to Arts 2, 13(a) and 16.1(c) and (f), Convention on the Rights of the Child (CRC), ratified 1990, with reservations relating to Art 14, para 1
a. Optional protocol to CRC on the Involvement of Children in Armed Conflict (OPT-AC), ratified 2000, b. Optional protocol to CRC on the Sale of Children, Prostitution and Child Pornography(OPT-SC) ratified 2000.
1. AIR 1950 SC 27
2. Sunil Kumar Sammaddar vs. Superintendent of Hoagly Jail 75 Cal WN 151.
3. Alamgir vs. The State AIR 1957 at p-285.
4. Patel, T; “Personal liberty under the constitution of India” Delhi (1993) at p-48.
5. Chowdhury Badrul Haider; “The long Echocs,” Dhaka (1990) at p-3.
6. Brohi, A.K.; “Fundamental law of Pakistan,” Karachi (1958) at p-424.
7. Balyley, David H, “Public liberties in the New states,” Chicago (1964) at p-23.
8. (1917) AC 260 Sufian
http://www.bdresearchpublications.com/journal/
176
9. Abdul, Md. Halim, “Constitution, constitutional law and politic: Bangladesh
Perspective” Dhaka (1998) at p-258.
10. Ordinance xiv of 1949.
11. Act xxxvi of 1950.
12. Ordinance VI of 1952.
13. Supra f. note 1.
14. Feldman, D. “Civil liberties and Human rights in England and Wales”, Oxford
(1993) at p- 169.
15. Section 2(f) of the Special Powers Act, 1974.
16.(1973) ISCR p-468.
17. Quoted by Brohi A. K. Ibid p-424. [(1917) AC 260]
18. Quoted by Munim-FKMA p-107
19. Denning, Lord Atfred, “Freedom under the law,” London (1949) at p-11.
20. Pankaj Kumar vs. State of West Bengal, AIR (1970) SC 97.
21. Article 22(4) of present Indian constitution.
22. Article 10(7) of present Pakistan constitution.
23. Kapur, Anup Chand, Misra, K.K. “Select Constitutions,” New Delhi, (2001) p-103.
24. Article 7 of International Covenant on Civil and Political Rights prohibits torture
and ill treatment.
25. Section 11 of The Special Powers Act 1974.
26. Section 33(4) and 9 of The Special Powers Act 1974.
27. Sayedur Rahman Khalifa vs. Secretary Home Affairs, 6 BLD (1986) DB 272.
28. Nazir Ali vs. Secretary Home Affairs 10 BLD (1990) HCD 258.
29. Mrs. Samirannasa vs. Govt. of Bangladesh and others 14 BLD (1994) p-206.
30. Section 8(2) of The Special Powers Act 1974.
31. Juma Khan vs. Govt. of Pakistan PLD (1957) KAR 939.
32. Section 34 of The Special Powers Act, 1974.
33. 28 DLR (1976) p-53.
34. 35 DLR (AD) (1983) p-78.
35. 31 DLR (AD) (1979) p-149.
36. Front page of Sangbad,15 March,1987.
37. V.D. Mahajan, “Select Modern Governments”, New Delhi (1972) p-84
38. Charanjit Lal vs. Union of India, AIR (1951) SC 41.
39. Sundarajan vs. Union of India AIR (1970) Del 29 (FB)
40. Farzana Hoque vs. Bangladesh (writ petition 170 of 1990)
41.Hiralal vs. East Pakistan PLD (1970) SC 399.
42. Daley, Re (1860) 2F & F 258
43. Abdul Md. Halim “Constitution, Constitutional Law and Politics: Bangladesh
Perspective” ibid p-263
44. Front page of Prothom Alo, 08 December,2002
45.(MLR) Mainstream Law Reports vol.2(1997)p-123
46. AIR 1983 SC 1083.
Author biography :
Adv. Sayed Taufiq Ullah, Legal Consultant, Juvenile Attorney,
Freelance creative writer, Citizen Journalist.
Profession: Advocate, Judges' Court, Jessore, Bangladesh, From May 07, 2009 to till now.
Present Address: 193, West Barandi Road, Jessore-7400.Bangladesh, Birthday: November 25, 1982. He is a human rights worker, now he became a general member of “Bangladesh Legal Aid Services Trust” Khulna Metropolitan committee, Bangladesh.
Cell:+880-1734516313, e-mail: sayedtaufiq@gmail.com
Blogsite: https://stullah.blogspot.com/
Award: Write3 Citizen Journalist Award 2011.
International research book Publications:
-Paper title: Human Rights and Bangladesh. ( ISSN 2320-9186). Paper ID: IJOAR HS-630
-Published in: IJOAR JOURNALS (SCI PUBLICATION) International Journal of Advance Research
-Paper Title: Cyber frontier in fight against crime and cyber law: still unaware of Bangladesh & the world.
-Paper ID: I026108,Published in: International Journal of Scientific and Engineering Research (IJSER) - (ISSN 2229-5518).
Publishing book:
1).আত্মদ্রোহ(ATHTODOROHO)Belief Freedom) (A collection of poetries) by Sayed Taufiq Ullah. Published by Monirul Alam, published in Ekushey Book Fair, Dhaka 2004.
2) আগুনমালার পাঠ(Aagunmalar Path (A collection of poetries) by Sayed Taufiq Ullah. Published by Maruful Alam, Protishilpo: (An off beat little magazine and publishing house),Road No-1, House No-60, Pollobee, Mirpur, Ekushey Book Fair Dhaka, Bangladesh in February 2011. E-mail: protishilpo@gmail.com, Price: Tk. 75.00, Rupee 75.00, I S B N: 973-984-33-2788-8
3) শাস্ত্রকাণা(SHASTROKANA),ISBN:973-984-34-3822-5) 2018, A collection of poetries by Sayed Taufiq Ullah. Published by Koratkol,(An off beat little magazine and publishing house),Ekushey Book Fair Dhaka, 2018, Bangladesh.
E-Book Publications:
আনুভূতিবাদ (Feelings-the-philosophy-of-TOTALITY)Title ID: 3782373, ISBN-13:978-1469980195, published by CreateSpace in December 2012,ISBN-978-1-304-13972-6) published by Lulu.com.
Reality & & Fictions! a collections of real case study by Sayed Taufiq Ullah,ISBN : 978-1-304-13972-6.
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