Legal framework regarding torture:
On the Convention against torture:
Bangladesh ratified the Convention Against Torture (CAT) on 5 October 1998. Even after a decade the country still does not have any specific law criminalising torture. Bangladesh has not ratified the Optional Protocol of the CAT.
A draft Bill for criminalising Torture and Custodial Death, which was prepared in compliance with the mandates of the CAT, was submitted to the Parliament as a Private Member's Bill by Mr. Saber Hossain Chowdhury (MP) on 5 March 2009. The Bill has primarily been reviewed by the Private Member's Bill Review Committee led by the former Law Minister Mr. Abdul Matin Khasru (MP), a lawyer of the Supreme Court of Bangladesh.
On the existing domestic law:
The right against torture is a fundamental right under Article 35 (5) of the Constitution of Bangladesh, which reads "No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment". Ironically, Article 46 of the Constitution empowers the State to provide impunity to the perpetrators.
In reality, torture is not a punishable crime in the domestic laws of Bangladesh. The Penal Code of 1860 (Sections 330, 331 and 348) penalises offences relating to causing hurt or wrongful confinement to extract confession. However, these provisions do not meet the standards of the CAT or define 'torture' as a crime.
In contrast, the provisions of the Code of Criminal Procedure, 1898 (Sections 132 and 197) protects the public servants such as police officers from prosecution unless prior approval from the government is obtained. According to the current interpretation of these provisions, the courts refuse to take cognizance of crimes committed by state agents without the prior approval of the state. This reflects the moral as well as jurisprudential deficit of the judiciary in the country.
In addition, until recently the subordinate judiciary of Bangladesh, which includes the Magistrates' and the Sessions Judges' courts had been under the control of the Ministry of Home Affairs and the Ministry of Law, Justice and Parliamentary Affairs. This subjugated the judiciary to such an extent that even after the change of circumstances the judicial officers behave as if they are not accountable to a superior court, but to a government officer. The temporal framework of the subordinate judiciary is still that they believe that they are part of the executive, but not the judiciary. This cuts the root of the impartiality quotient of the subordinate judiciary in the country. In addition, the process for complaints, investigation and prosecution of cases involving allegations against state agents is almost impossible in the country.
On compensation:
Since torture is not criminalised, a victim of torture cannot get any compensation in Bangladesh at all. No specific law allowing compensation for the victims of torture exists in the country despite the fact that the right against torture is a fundamental right.
On witness protection:
Bangladesh does not have any specific law concerning witness protection. None of the existing domestic law like the Code of Criminal Procedure contains a provision to protect the witness. The court, when it grants bail to an accused, may impose conditions for bail, which are often violated with impunity owing to the lack of monitoring and implementing facilities. The courts have also demonstrated their lack of commitment in this regard through their decades long neglect in addressing this issue. In such a context, the witnesses in a case of torture not only remain far beyond any legal protection but also face further threat, intimidation and the possibility of having fabricated charges filed against them.
The magnitude of the problem:
The endless practice of torture practiced with impunity, has created a fear psychosis in the society in Bangladesh. The people, has lost their faith on the criminal justice mechanism. Victims refrain from complaining owing to the fear of further persecution. In addition the wide-spread corruption and huge litigation expenses makes the complaint process unaffordable for the ordinary people. In most cases of violence committed by the state agencies, the victims are from the lesser affluent class in the society, which amounts to almost ninety percent of the population.
There is a notion among the law-enforcing agents and the policymakers in the country that torture is an effective tool for investigation. Poor infrastructural facilities are cited as a reason for resorting to torture and further justifying its use.
Bangladesh has 629 police stations. Torture is practiced as a routine in all of these police stations. It is an accepted means of maintaining law and order, investigation and extorting money by the police. Even if it is assumed that only a single person per day is tortured in the country per station, an alarming number of 229,585 persons are being tortured in Bangladesh every year. This figure excludes those victims who are tortured outside the police stations or other detention centres.
Even worse, police is not the only state agency that routinely practices torture. Paramilitary forces like the Rapid Action Battalion, the armed forces, the border security forces, the intelligence agencies like the Directorate General of Forces Intelligence (DGFI) and special cells such as the Task Force for Interrogation (widely known as TFI Cell) and the Joint Interrogation Cell (JIC) created by the government, also practice torture. The TFI and the JIC, by their very nature of the mandate are professionally trained to extract confessions from detainees, for which torture is the most common tool.
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