Law
education
Rights
based training for Police
Anisur
Rahman
Police
are part and parcel of the criminal justice system. Criminal
justice dispensation largely depends on the police, i.e.
to arrest the accused and produce him before the court,
to investigate the matter, to give charge sheet/final
report. The criminal justice system is followed by the
natural justice, which means the accused is presumed to
be innocent until his guilt is proved undoubtedly. The
accused deserves constitutional protection until his guilt
is proved. There is a spate of allegations of violation
of fundamental rights of the accused (sometimes general
people) in the hand of police. This is happening at least
for two reasons, political interference and lack of knowledge
of human rights as well as other laws. The police must
have the knowledge of the following issues while dealing
with an accused.
Human
rights
For a layman, human rights are those rights that a man
possesses with his birth. These inalienable rights include
right to equal protection of law, freedom of religion
and thought (it is to be noted that our constitution does
not recognise freedom of thought), freedom of movement
and association, freedom of speech etc. These are by no
means an exhaustive list that the people of a democracy
enjoy. No government in a democracy grants the human rights
of the people but it is to protect those inviolable rights.
The thought of the protection of human rights is not a
thought of a day. It developed through the signing of
Magna Carta, Bill of Rights 1689, American Declaration
of Independence etc. The concept of protection of human
rights got momentum after establishment of the United
Nations. Human rights got international shape by the Universal
Declaration of Human Rights adopted by the United Nations
General Assembly in 1948. After the declaration came into
being protection of human rights becomes an international
concern and all signatory states are obliged by the declaration.
These rights could not be legislated away nor 'they are
the subject of the momentary whim of an electoral majority'.
Constitutional
rights/fundamental rights
Of the human rights those are guaranteed by the constitution
are called constitutional rights or fundamental rights.
For example our constitution recognises equality before
law as a fundamental right (Article 27), which is also
recognised as one of the human rights of a man. Constitutional
recognition means that the state is under constitutional
obligation to protect those rights. The fundamental rights
are also enforceable by the court. For example, right
to security is not incorporated in our constitution as
fundamental right. Therefore, no one could establish his
right to security as fundamental rights through the court
of law. The Constitution of People's Republic of Bangladesh
has recognised a number of human rights as fundamental
rights (Article 26-44). Among them equality before law,
freedom of speech, right to association, right to movement,
right to religion, right to treatment according to law
are mentionable. It is a unique feature of our constitution
that it has recognised 'enforcement of fundamental rights'
as one of the fundamental rights {article 44}. That means
when one's fundamental rights are at stake he could take
recourse to the court to protect it (Article 102). The
state by no means could deprive him to get justice. It
is noteworthy that our constitution guarantees only the
political rights as fundamental rights. Civil rights are
not recognises by our constitution. For example education
is not recognised as the fundamental rights by our constitution
though it is the most important civil rights.
While
performing the duty police should take special measures
that in no way one's fundamental rights is being violated.
'Right to protection of law' (Article 31) and 'safeguards
as to arrest and detention' (Article 33) are mostly related
to policing. When police arrest a person they must not
be oblivious of the fundamental rights of the arrestee
i.e. right to be informed his guilt, right to be produced
before the court within 24 hours, right to defend himself
through consultation with lawyer. On the other hand, when
police take the arrested person under their custody they
must not treat the arrestee otherwise than law, i.e. they
must not torture him; treat him indecently, which undermines
his dignity as a human being.
Precaution
against arrest without warrant
Section 54 of the Criminal Procedure Code gives a wide
authority to the police to arrest any person who the police
reasonably believe to be involved in criminal activities.
In such a case, the police have to disclose the source,
nature of his reasonable belief based on the criminal
record. The credible information of the police must not
be a vague one rather they must record why they believe
so to justify the arrest. The general statement that the
arrestee is involved in criminal activities is not acceptable
at all {Bangladesh Legal Aid and Services Trust (BLAST)
Vs Bangladesh, 23(2003) BLD, HC}. The belief of a layman
without any scrutiny is no more pleasing as reasonable
belief. The judgement of this case is certainly a landmark
decision in the history of Bangladesh (Dr. Shahdeen Malik
termed it as 'Charter of Freedom' in a write up soon after
the decision came into being). In this case it was directed
that the arrest and investigation must be conducted within
the limitation and safeguards of Article 27, 31, 32, 33
and 35 of the constitution. Police must abide by the guidelines
of this case.
Statement
to the police has little evidentiary value
It is a common feature that after arresting a person police
produces him before the court with a prayer for remand.
It is also seen that our magistrates are very impatient
to allow their petition. Police always ask a remand to
extract information from the arrestee. But they should
understand that this extorted information has no evidentiary
value. According to Article 35 (4) no person accused of
an offence shall be compelled to be witness against himself.
Therefore it is so clear that the information extorted
by police through interrogation or torture from the accused
could not be used against him in trial. So, what is the
necessity to take an accused under police remand? On the
other hand police could not take a confessional statement
of the accused under threat or offering something under
section 161 of the Cr.P.C. Statement to the police is
not considerrd, without some exceptions in trial also
because they are the interested party of a criminal proceeding.
Police have to consider these facts when dealing with
an accused person.
Juvenile
justice system
Rapid industrialisation and other social factors compel
juvenile to come into conflict with laws frequently. But
they hardly get any special treatment from the police.
The Children Act 1974 provides for juvenile justice system
(treatment of children), which is different from traditional
criminal justice system. The Act provides for three things,
a) Empowerment of the children which means the issue of
the children rights must be taken into consideration and
by no means it is allowed to be violated, b) Special protection
and treatment of the children that is when a child comes
into conflict with law or commits an offence he will get
special treatment (he must not be treated like adult criminals),
finally c) State obligation towards children that means
the state shall take all necessary measures to protect
the children's right.
The
meaning of the word 'Trial' in juvenile justice system
is different from that of the criminal justice system.
In the former the word means to find out whether the child
is guilty only. On the other hand in the case of latter
system the word indicates the procedural criminal justice
system, i.e. to investigate the matter, to arrest the
perpetrator, bring a formal charge against him and finally
to convict him upon punishment. The core objective of
the former system is not the trial of a child following
punishment.
In
regard to the children the reformative philosophy of punishment
instead of deterrent must be followed. Children are that
portion of the human being with lack of understanding
and knowledge, which makes them separate from adult. Because
of these lacks they are deprived of some basic rights,
i.e. inter into contract. That's why they are immune from
criminal responsibility. It is mentionable that the concentration
of the juvenile justice system centres on the 'juvenile'
instead of the 'crime'. This is a separate model of the
criminal justice system where the judge has to look into
the behavioural pattern of the offender in order to understand
him. This system deals with separate custody, treatment
of the child.
The
heart of the juvenile justice system is an understanding
that the juvenile are not the smaller entity of the adult.
They are the distinct entity of human being that deserves
some different treatments and protections. In this system
the state played a role to bring the derailed children
in the right track. It is rightly said that the intent
of the juvenile justice system is to 'deprivation of the
children instead of depravation'.
Concluding
remarks
The police must take the issues aforementioned into consideration
while performing their duties. Also the concerned authority
should take necessary initiative to provide them human
rights training. The authority obviously should consider
the other necessary matters relating to police, i.e. salary,
accommodation, duty hours and other benefits. We wish
the police would be friend of the people. However, the
onus is on the police in that case.
The
author is a legal analyst as well as a lawyer.
