Human rights advocacy
Police torture and recent court directives
Md. Zahidul Islam
Arrest, detention and remand are regular phenomena in our police activities. Sometimes these arrest, detention and remand are lawful, but in most of cases these are proved or felt to be illegal. This illegality is, however, not an obsession with the police today, rather it was phenomenally present in the past and there is no sign that the scenario will change shortly. As a matter of fact, if one looks into news reports of one day's newspapers one will find a good number of examples of polices' illegal activities relating to arrest, detentions and remand. Obviously, these newspapers do not cover all the incidents happening in the nook and corners of the country, hence are not depicting the total scenario, which is rather horrific. Nevertheless from these reports one can have a good picture of the situation that police atrocities and illegalities are not diminishing at all.
However, these repeated and continuous illegal acts of police do not mean that their acts are unopposed, not protested.
The parties in oppositions, are disparate to extricate the people from the misrule of govt and its pet-police (in their words). Consequently, every thing seems positive; there is no shortage of good will. So, ongoing illegal practice relating to arrest and remand should have been controlled to a large extent. But surprisingly the actual scenario is diametrically opposite. Though there are a lot of seminar, symposia, discussion, writings, political speeches in this regard seems failing even to scratch the body of police, let alone to change their mindsets. This clearly sends a message that such type of lip services (in civilised word advocacy) will not serve the real purpose. What is necessary is to do take some effective initiatives.
Admittedly, the judgement in Bangladesh Legal Aid & Services Trust and others Vs Bangladesh is a pathfinder in the troubled legal arena in Bangladesh. This historical judgement ends all confusions and ambiguity about police power on arrest, detention and remand.
Section 54 of the Code of Criminal Procedure provides, among others, that the police can arrest a person if there is a reasonable suspicion about his involvement in a crime. As the expression 'reasonable suspicion' is not defined in the Code, police could arrest anyone on this suspicion, implicating him in a crime, and thus could harass innocent peoples. The crux was that there was no authoritative interpretation, providing scopes for different explanations facilitating the police. This historic judgement blocked the way of abusing the terms 'reasonable suspicion' laying down that if a person is arrested,' the police officer shall record the reasons for the arrest including the knowledge which he has about the involvement of the person in a cognisable offence, particulars of the offence, circumstances under which arrest was made, the source of information and the reasons for believing the information…'
Thus, this judgement not only closes the ways for vague and ungrounded 'suspicion' but also puts guidelines to deal with such reasonably suspected and arrested person. Accordingly, now not only that the arrested person has to be produced before magistrate within 24 hours but also that: (a) the arrested person has to be informed of the reasons for his arrest; (b) the police will have to inform a friend or relative of the person arrested, unless he is arrested from his home or workplace; and (c) the arrested person must be allowed to consult a lawyer, if he so chooses.
The judgement also emphasises that if this guideline is not maintained, the arrest will amount to confining the arrestee in custody beyond the authority of the Constitution, indicating a way of remedy through writ petition.
Another wide spread abuse of section 54 was that police arrested a person on suspicion and then detained them under the Special Powers Act, 1974. The judgement clearly addresses the issue as ' A person is detained under preventive detention law not for his involvement in any offence but for the purpose of preventing him from doing any prejudicial act.
So there is no doubt in our mind that a police officer cannot arrest a person under section 54 of the Code with a view to detain him under section 3 of the Special Powers Act, 1974. Such arrest is neither lawful nor permissible under section 54.' So if any person is to detain under the Special Powers Act, a detention order under the provisions of that Act must be made at first.
Here comes remand with which section 167 of the Cr.PC deals. After producing the arrested person before Magistrate within 24 hours, if the police believe that the arrested person should be further interrogated for information about crimes, it may ask for remand meaning return the arrested person to the police custody. On this issue, the judgement's direction is very lucid: ' the police officer must state the reasons as to why the investigation could not be completed within 24 hours and what are the grounds for believing that the accusation or the information received against the person is well founded.'
Besides, the court pronouncing the judgement was aware of the practice of using force in the police custody. So it carefully observes that '… neither any law of the country nor the constitution gives any authority to the police to torture that person or to subject him to cruel, inhuman and degrading treatment. Thus it is clear that the very system of taking an accused on 'remand' for the purpose of interrogation and extortion of information by application of force on such person is totally against the spirit and explicit provisions of the Constitution.'
However, on satisfaction of the requirements mentioned earlier courts will have to grant remand. In that case possibility of torture in custody cannot be ruled out, as there is no monitoring system. The judgement is also alert in this respect. It directs that such interrogation can take place only in the jail, implying a total prohibition of remand of the accused in thana hazat.
The court understood that there would not be any change of the scenario overnight just after pronouncement of the judgement.
So there would be illegal arrest, followed by torture in remand. Accordingly, the forward looking judgement approaches that 'where it is found that the arrest was unlawful and the person was subjected to torture while he was in police custody or in jail, in that case there is scope for awarding compensation to the victim and in case of death of a person to his nearest relation,'
Further, the court had an agony that many persons have been allegedly killed in thana hazat or jails over the years, but there has hardly been any prosecution for those murder or torture. The court knew that reluctance to lodge any FIR or formal complaint due to fear of further harassment is the root cause for this.
Hence, the judgement recommends that in cases of death in police or jail custody, where the post mortem indicates foul play, a Magistrate should be empowered to initiate legal proceedings against the suspect police without wanting for a complaint from the relatives of the murdered person.
Moreover, the judgement provides detailed recommendations for the necessary amendments to the relevant sections of the Cr.PC, the Penal Code and the Evidence Act so that the directions, guidelines and safeguards enunciated in the judgement are followed strictly as a matter of law. Consequently, it seems that there was nothing left untouched in the judgement, allowing the think tanks, intellectuals and talkers to discuss about. And understandably next step should have been to act upon the judgement. Now we will see what have been acted so far upon the judgement.
Truly speaking, after this judgement, stopping illegal arrest and torture by police was a matter of time only, if the govt wished. But reality is that the govt has appealed against the verdict and the case is still pending in the appellate division. This is unfortunate, but not surprising. Every prudent citizen can realise it.
But my question is, have others the so-called think tanks, lawyers, judges, high police officials, professionals, labour leaders, political leaders, economists, doctors, famous social activist, human rights activists and NGOs performed their duties and responsibilities?
Justifiably, after the judgement, the first act should have been to disseminate the diverse important aspects of the judgement so the public at large, people form all classes, could be aware of their rights, responsibilities as well as the procedure. Necessarily, if public do no know about their rights, how will they claim it? If they do not know the procedure how will they understand that the same is not being followed by the police?
Before making this write-up I talked to some lawyers practising in the Supreme Court and Dhaka District Courts. Really I am very shocked to learn that most of those lawyers even have not read the judgement; they are not fully aware of the directives or recommendations of the judgement. If this be the state of lawyers practising in the Supreme Court, then what about the others lawyers practising in the district levels? The Bar Council, which seems to be free form govt influence, has not so far selected the judgement to be studied by the new lawyers having training there. The judges and magistrates are granting remands routinely without complying with requirements asked by the judgement. I don't believe that those judges and magistrates are not aware of the judgement, then why are they not conforming to it?
The human rights organisations and think-thanks are intermittently arranging discussions on arrest, remand and torture. Opinions and concerns are being exchanged among a few numbers of intellectuals. But what about a common citizen residing in an union or thana level who is facing illegal arrest, threat and torture by police? Have they arranged any programme to arouse awareness, consciousness among the common, poor, illiterate or half-literate people who are frequent victims of police malpractice? Do they think only the advocacy through seminars and symposia is enough?
Police behaviour is a popular issue of the main opposition party to discuss. But what they had done to educate and civilise the police in the time they were in power? And what are they doing now? Our print and electronic media seem very enthusiastic to focus on such police malpractices, illegal arrest and detentions, harassment and torture. But journalists, except a few ones, are not sufficiently knowledgeable of these legal issues. If they were trained and made aware of those, they would be more responsive to focus those issues meaningfully and effectively. Was not it possible for the lawyers cum politicians of the oppositions, who never become tired to speak ill of govt, to arrange regular workshops, seminars, training camps for those journalists working in district levels or remote parts of the country?
So, there are many things to do except speaking. Efforts to arouse awareness among mass people should be the first priority. Aware and conscious citizens are the enlightened citizens who cannot be suppressed by any govt in any way.
The author is a legal researcher currently working for Bangladesh Legal Aid & Services Trust.
