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Torture in Lawful Custody in the context of Bangladesh

Article · January 2022

DOI: 10.4236/blr.2017.84054

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 Torture in Lawful Custody in the context of Bangladesh

Sikandar Ali Usman

Student, BRAC University, Dhaka Bangladesh

Introduction:

Torture is one of the most terrible violations of human dignity, with victims' dignity being
shattered and their ability to continue their lives and activities reduced as a result. Torture has
been in all societies from the beginning of time. Torture, in many forms and manifestations,
found a place inside the state towards the close of World War II.1 The world is deeply
concerned about this sort of human rights abuse. It has nothing to do with the limited definition
of sovereignty. Bangladesh isn't an outlier in this regard as torture and inhumane treatment are
rampant in here.

Nevertheless, the UN has a variety of measures in place to promote universal respect for human
rights and to protect them. As a result, the United Nations Charter is regarded as a crucial
international tool. Later, the Universal Declaration of Human Rights (UDHR) of 19482 and the
International Covenant on Civil and Political Rights (ICCPR) of 19663 both emphasized human
rights and advocated that no one be tortured or subjected to cruel, inhumane, or humiliating
treatment or punishment. These clauses have been incorporated into Bangladesh's constitution
too.4 In light of these agreements, the current study focuses on torture in Bangladesh. But then
again one may argue that, without torture it is difficult to get a confession and complete an
investigation as some arrestees are repeat offenders and liars. However, in my point of view,
torture in lawful custody is a complete violation of United Nations Convention against Torture
(UNCAT)5 and also the justice system of Bangladesh. And in this article, we will try to discuss

1
Hasan, Md. M., Arifuzzaman, Md., & Rahaman, M. M. (2017). “Torture in Lawful Custody: Violation of United
Nations Convention against Torture in Criminal Justice System in Bangladesh” (2017) Beijing Law Review, 8,
397-422. https://doi.org/10.4236/blr.2017.84022 accessed on 4 January 2022.
2
Article 5 of Universal Declaration of Human Rights, 1948.
3
Article 7 of ICCPR, 1966.
4
Article 35 of the Constitution of the People’s Republic of Bangladesh, 1972
5
“Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, (1987),
https://www.ohchr.org/en/professionalinterest/pages/cat.aspx
about, how torturing in lawful custody is a complete violation of human rights and how can
one get true confession without torturing the accused.

The definition of Torture and the Victim of it:

Torture has taken many forms throughout history, and it has frequently been used for political
re-education, interrogation, punishment, and coercion. From the article 1 of the UNCAT we
came to know about the definition of torture as it stated that, “the term "torture" means any act
by which severe 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. It does not include pain or suffering arising only from, inherent in or incidental to
lawful sanctions.” Moreover, in the case of Aksoy vs Turkey (1997) the honourable court stated
that, “If an individual is taken into police custody in good health and found injured at the time
of release and also found that the treatment inflicted to the arrestee is deliberate, serious and
cruel it will be treated as torture.”6 In this 21st century most of the countries around the world
prohibited torture as they started follow the international law and also most of them have their
own domestic law regarding this matter. From the report published by UN in 2016 we came to
know that; 147 countries have adopted the United Nations Convention Against Torture
(UNCAT).7 These shows us that, it is not necessary to do inhuman torture for getting the
confession for an accused.

Moving on, if we talk about the victim of torture, we can see that it contains everyone, no
matter how old one is or from which background he/she came from. However, the majority of
these victims are migrants, such as asylum seekers, refugees, and undocumented migrants, who
have been tortured in their home countries, transit countries, or host nations.8 If we look into

6
Aksoy v. Turkey, 23 Eur. H.R. Rep. 553 (1997).
7
UN United Nations Treaty Collection.
http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter =4&lang=en Universal
Declaration of Human Rights. (1948)
8
“TORTURE VICTIMS IN THE CONTEXT OF MIGRATION: IDENTIFICATION, REDRESS AND
REHABILITATION” (April 2017), Report on the Third Annual Expert Workshop, published by UNHR,
our country’s perspective, we can see that, in here the main victim of this are the opponent
political party and journalist.9 On the other hand, Prison officers/detention staff, police,
military, paramilitary forces, and state-controlled contra-guerrilla forces are among those most
likely to be involved in torture in our country. Mainly they are the one who torture and whom
got tortured in Bangladesh.

The problem of torture in the context of Bangladesh and the socio-legal effect on
society:

Despite significant legal advancements, such as the passage of an anti-torture statute in the
nation, Bangladesh has a deep-rooted issue of torture and impunity, making it almost hard for
victims of torture to get justice. The systematic failure of investigate, prosecute, and punish
offenders exacerbates the situation and is a major infringement of Bangladesh's international
commitments, including those under the UNCAT, which Bangladesh ratified more than 20
years ago. Bangladesh's various administrations have failed to submit any report to the UNCAT
for more than two decades, making it one of the world's most delayed and non-reporting States
today.10 In our country torture is used to extract information or get a confession, which is still
considered the gold standard of proof. Modern forensic means to investigate a crime are usually
lacking in practice due to a lack of capability and related training within law enforcement.
Moreover, from the article named, “Cycle of Fear” (2019) we came to know that, instead of
fulfilling their legal duties to guarantee that an imprisoned person is not tortured, magistrates
routinely return prisoners to custody, despite evident symptoms of torture and knowing that
they would be harmed further.11

Furthermore, given the context of the current political crisis, we have witnessed a surge in
torture claims, enforced disappearances, and extrajudicial executions in recent years. This
reflects not just a fading atmosphere of democracy and checks and balances, but also a climate

https://www.ohchr.org/Documents/Issues/Torture/UNVFVT/UNVFVT_ExpertWorkshop2017.pdf accessed on 5
January 2022.
9
“THREE-MONTH HUMAN RIGHTS MONITORING REPORT ON BANGLADESH” (2021), published by
Odhikar, http://www.odhikar.org/torture/ accessed on 2 January 2022.
10
“CYCLE OF FEAR” (2019) published by Odhikar, https://www.omct.org/site-
resources/legacy/cycleoffear_bangladesh_report_omct_2020-12-11-144514.pdf accessed on 3 January 2022.
11
Supra n11
of human rights violations and impunity, all of which risk exacerbating tensions and
entrenching authoritarian authority.12 Elite forces like the country's Rapid Action Battalion
(RAB) operate de facto largely outside the control of any civilian or judicial authority, making
accountability a pipe dream. This research emphasizes the necessity for all security and law
enforcement agencies, including and especially the RAB and special forces, to reconsider their
rule of law compliance and political neutrality. Moreover, from the report published by Odhikar
in 2021 we came to know that, from January to September 2021, 71 people had died in extra
judicial killing and 54 people died in jail.13 This shows us the current situation of Bangladesh
and the socio logical impact regarding this matter.

Moving on, if we talk about the Torture and Custodial Death (Prohibition) Act 2013, which
criminalizes torture, stipulates those complaints can be made directly to a court rather than to
the police, and that claims must be investigated and compensation provided. Nevertheless, it is
infrequently put into practice. Because additional legal safeguards against torture remain
unimplemented, the rule of law suffers from legal ambiguity and unpredictability. The Supreme
Court's landmark ruling in BLAST v. Bangladesh,14 which gives specific criteria for arrest,
custody, and incarceration, which is ignored by law enforcement. In practice, this means that
attorneys are seldom present during interrogations, people aren't told about the grounds for
their arrests, police personnel don't reveal an arrestees identify, and death in custody isn't
routinely probed. Additionally, in Mrs. ArunaSen vs. Government of Bangladesh,15 it was
determined that the grounds for imprisonment must be given to the detainee so that he can
make a representation at the earliest possible moment. There have been reports of
indiscriminate arrests of innocent people who are subjected to third-degree techniques in order
to get confessions. The Supreme Court of India has labelled this as "state terrorism."16 These

12
This authoritarian turn has also been recognized internationally. See “Democracy under Pressure: Polarization
and Repression are Increasing Worldwide” a report by Bertelsmann Stiftung, March 2018, paragraph six,
available at: https://www.bertelsmann-stiftung.de/en/press/press-releases/press-release/pid/democracy-under-
pressure-polarization-and-repression-are-increasing-worldwide/. Also see http://www.bti-project.org/en/key-
findings/regional/asia-and-oceania/ at paragraph nine.
13
Supra n9
14
Bangladesh Legal Aid and Services Trust (BLAST) v. Bangladesh 55 DLR 380 (HCD 2003)
15
Mrs. ArunaSen vs. Government of Bangladesh 27 DLR 122 (HCD 1975)
16
S. M. Shahidullah Mamun, “Prohibition of Torture: Laws and Practice in Bangladesh” (2019) Vol. XIII, No.2.
page no.56.
such things are hampering the socio logical impact of our society, to prevent it we must need
to take strong septs now more than ever.

Is Torture important to get Confession form an accused?

Torture is outlawed not merely on moral and legal reasons, but also because it is ineffective as
a method of interrogation. From the various cases we came to know, by applying torture the
officials sometime get the confession what they demand from the accused.17 Many intelligence
operatives have come forward to declare that torture is pointless, because a tortured individual
in order to be free of pain, will say anything the captor wants to hear, leading in erroneous
intelligence.18

Even if the accused is eager to cooperate, torture makes it more difficult because stresses used
during torture, such as sleep deprivation, asphyxia, and chronic strain, impact memory,
cognition, and recall capacity. Taking these factors into account, research show that harsh
interrogations are more likely to extract faulty intelligence than helpful intelligence. Moreover,
torture has corrosive consequences on organizations, as a focus on outcomes by leaders allows
for more brutality and the circumvention of checks and balances.19 Torture teams tend to
become "laws unto themselves,"20 frequently standardizing the practice beyond its legality and
deceiving government officials to prevent democratic oversight. Additionally, according to
seasoned interrogators and intelligence professionals, interrogation tactics such as torture and
assault are useless in obtaining dependable true information. "The application of psychological,
emotional, and/or physical pressure can force a victim of torture to say anything just to end the
painful experience," according to a statement signed by 25 former interrogators and

17
Isikoff, “The Missing Terrorist.”
18
Clara Assumpção, “Can the Use of Torture in Intelligence Gathering Be Justified? “ (2020), published by E-
International Relations, https://www.e-ir.info/2020/03/20/can-the-use-of-torture-in-intelligence-gathering-be-
justified/
19
Rejali, “Torture and Democracy,” 457.
20
Ibid, 457–58.
intelligence professionals from the US military. The purpose of interrogation is to acquire
precise and verifiable information, not to 'get people to talk.'21

Also, till now more than 147 countries band torture in lawful custody it shows us that without
torture it is possible to get confession from the accused, so, it is not necessary at all rather it is
complete violation of human rights law.

The UNCAT and Criminal Justice System in Bangladesh:

The UNCAT is intended to prevent torture by government officials or those acting in an official
capacity. There are three parts to the convention. Articles 1 – 16 deal with substantive rights,
whereas Articles 17 – 24 deal with implementation machinery, and Articles 25 – 33 deal with
ratification, revisions, and other issues. Also, the convention's preamble refers to the United
Nations Charter, namely article 5 and 7 of UDHR and ICCPR.

Now, if we look in to the criminal justice system in Bangladesh, we can see that, here the
criminal justice system is largely adversarial.22 That is to say, the entire procedure is a
competition between two parties. The state and the individual accused of the act in question
are the two parties involved in crime. Throughout the procedure, the court acts impartially.
Moreover, in the preparation of a case, the court has no important role. The trial is not an
inquiry into events or allegations, but rather a hearing to determine whether the accused is
proven guilty of the specific offenses that the prosecution has charged him with under a
complicated set of procedures. Criminal justice entails the punishment of wrongdoings that
have been proven. Unless otherwise excluded or particularly provided for, all criminal
procedures in Bangladesh are governed by the Code of Criminal Procedure (CrPC), 1898, and
Criminal Rules and Orders. A criminal administration of justice involves four agencies: the
police, the prosecutor's office, the courts, and the jail and probation authority.23

21
“Statement of National Security, Intelligence, and Interrogation Professionals” (2014) published by human
rights first, https://www.humanrightsfirst.org/resource/statement-national-security-intelligence-and-
interrogation-professionals
22
Supra n1
23
Halim, M. A. (2009). The Legal System of Bangladesh. Dhaka: CCB Foundation
The Legal Framework for Torture Safeguards in Bangladesh:

On 5 October 1998, Bangladesh ratified the United Nations Torture Convention, making it a
state party to the Convention and making it mandatory for it to abolish torture.24

In Bangladesh any actions that equate to torture are expressly prohibited by Bangladesh's
constitution and the penal law in any situations. As the constitution of Bangladesh declares,
"No one shall be subjected to torture or to cruel, brutal, or degrading punishment or
treatment,".25 Torture is also prohibited by the Police Act of 1861 on Section 29 and Section
48 of the Dhaka Metropolitan Police Ordinance of 1976. No individual accused of a crime may
be forced to testify against himself, according to Article 35(4) of the Bangladeshi Constitution.
"No one shall be deprived of life or personal liberty unless in conformity with law," according
to the Bangladesh Constitution.26 Moreover, according to the Penal Code, 1860, physical and
psychological ill-treatment of detainees by law enforcement agents is forbidden and criminal
in Bangladesh. Under articles 330 and 311, public employees who commit "Harm" or "grievous
hurt" to get confessions or compel property return face up to seven and ten years in prison,
respectively. Furthermore, sections 162, 163, 172, and 173 of the Code of Criminal Procedure
of 1898, as well as sections 24, 25, and 26 of the Evidence Act of 1872, contain norms of
behaviour and procedure for preventing torture of people who are being interrogated. A
confession by an accused individual is irrelevant if it appears to have been induced or
threatened, according to Section 24 of the Evidence Act. According to Section 25, no
confession delivered to a police officer can be used against an accused person. Under Section
26, confessions made by a person in police custody are not admissible unless they are made in
front of a magistrate. It should be read in combination with the CrPC's section 164.

The UN Torture Convention's Articles 2 (1) and 4 require a state party to implement domestic
legislation that recognizes torture, as well as cruel, inhuman, and degrading punishment and
treatment, as crimes in the nation. Bangladesh has enacted The Torture and Custodial Death
(Prevention) Act in 2013. Because most of the clauses of this Act go against the essential spirit
of the Convention Against Torture, it was not enacted in response to it. Section 2 (6) of the

24
Collect from, “United Nations Treaty Collection”,
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&clang=_en accessed on 1
January 2022.
25
Article 35 (5) of the Constitution of Bangladesh, 1972.
26
Article 32 of the Constitution of Bangladesh, 1972.
CAT defines torture as any act that is not in accordance with Article 1 of the treaty. The
wording "the Court having jurisdiction" in Section 4 should be explained. Instead of the present
provision of inquiry of law enforcement agencies by law enforcement agencies, Section 5 of
the Act should be changed to include a provision for court investigation. During this procedure,
a member of the law enforcement agency chosen as an investigating officer may become biased
in their investigation of the accused. The Act lacks a definition of "person" to clarify the
meaning of some clauses, such as sections 6 (1), 7 (1), 8 (3), and 13 (1), (2). As a result, the
Act should include a definition of the term "person," which is defined as a public official or
other person operating in an official capacity in accordance with the Convention against
Torture in section 13 (1).

Recommendations on how to stop Torture in Lawful Custody:

To stop or prevent torture in our country the government and also the people of Bangladesh
need to take some serious step as soon as possible, some of those steps are,

1) As quickly as feasible the government need to reform the Torture and Custodial Death
(Prevention) Act, 2013. Specially the section, 2(6), 4, 5, 6(1), 7(1), 8(3), 13 (1,2), 15
should be reformed for the betterment of the human rights. Moreover, Bangladesh
should consider revising the Article 46 of the Constitution to limit Parliament's
jurisdiction by eliminating torture and other cruel, inhuman, or humiliating treatment
or punishment from the list of crimes for which public officials can be held liable.
2) Sections 54,167, and 344 of the CrPC should be amended by Parliament, on the
proposal of the Ministry of Law, Justice, and Parliamentary Affairs, in accordance with
the Supreme Court's directions in the BLAST case.
3) The High Court Division's rules and directions on arrest, investigation, and remand in
the cases of BLAST and Others versus Bangladesh and Saifuzzaman vs State shall be
rigorously observed.
4) In accordance with Articles 12 and 13 of the UNCAT, and the ban of self-incriminating
utterances established in Article 35 (4) of the Bangladesh Constitution, magistrates
shall deem any statement produced as a consequence of torture inadmissible.
5) The investigation department and the police department, where officers are charged,
should be separated.
 6) Human rights training should be provided to police officers, and they should not be
utilized for political purposes.
7) During the remand phase, the judge should keep a careful eye on the conditions of
imprisonment and interrogation by the police.

And with all of these, Human rights should be taught in schools, colleges, and universities so
that students are aware of how they are violated. Also, the abuse victims should speak out
against those who torture them. In this regard, the Human Rights NGO can play a critical role.
Finally, government, media, and non-governmental organization (NGO) awareness initiatives
should be conducted. To get confession, the officers must get through proper training on how
to get confession by not applying torture to the accused.

Conclusion:

Bangladesh is a developing country. It has always maintained positive diplomatic relations

with several nations while adhering to international standards and ideals. It is regrettable that
torture in lawful custody is a typical occurrence in Bangladesh, and it is currently a hot subject
in the criminal justice system. By going through several cases, it is clear that with torture is not
an effective way to get confession from an accused rather it is inhuman and it is a complete
violation of human rights in this modern world. Yes, we know that, some arrestees are repeat
offenders and liars but to get the truth this type of inhuman act is not necessary at all. Torture
is a criminal offense that goes against humanity and is despised by all civilized societies and
communities, but it is still practiced across Bangladesh. The majority of human rights groups
have focused their efforts on this issue. They are attempting to combat such wrongdoings. The
steps which the government of Bangladesh has taken are not working property at this moment.
As a result, the criminal justice system's inhumane culture is growing by the day. Torture is
sometimes used as a key tool to silence political opponents. As a result, with the help of NGO's
and diverse specialists, the government should begin taking meaningful efforts to end this
inhumane practice right now by enforcing the United Nations Convention against Torture.
 Bibliography:

Statutes:

Constitution of the People’s Republic of Bangladesh, 1972

International Covenant on Civil and Political Rights (ICCPR) of 1966

Universal Declaration of Human Rights (UDHR), 1948.

United Nations Convention against Torture (UNCAT), 1987

The Code of Criminal Procedure, 1898

The Evidence Act, 1872

The Penal Code, 1860

The Police Act, 1861

Torture and Custodial Death (Prevention) Act, 2013

Cases:

Aksoy v. Turkey, 23 Eur. H.R. Rep. 553 (1997)

Bangladesh Legal Aid and Services Trust (BLAST) v. Bangladesh 55 DLR 380 (HCD 2003)

Mrs. ArunaSen vs. Government of Bangladesh 27 DLR 122 (HCD 1975)

Saifuzzaman v. State 56 DLR (HCD) (2004) 324

Books:

Freeman, “Does the Use of Torture Ever Work?”

Isikoff, “The Missing Terrorist.”

Rejali, “Torture and Democracy,” 457.

This authoritarian turn has also been recognized internationally. See “Democracy under
Pressure: Polarization and Repression are Increasing Worldwide” a report by Bertelsmann
Stiftung, March 2018, paragraph six, available at: https://www.bertelsmann-
stiftung.de/en/press/press-releases/press-release/pid/democracy-under-pressure-polarization-
and-repression-are-increasing-worldwide/. Also see http://www.bti-project.org/en/key-
findings/regional/asia-and-oceania/ at paragraph nine.

“TORTURE VICTIMS IN THE CONTEXT OF MIGRATION: IDENTIFICATION, REDRESS

AND REHABILITATION” (April 2017), Report on the Third Annual Expert Workshop,
published by UNHR,
https://www.ohchr.org/Documents/Issues/Torture/UNVFVT/UNVFVT_ExpertWorkshop201
7.pdf accessed on 5 January 2022.

“CYCLE OF FEAR” (2019) published by Odhikar, https://www.omct.org/site-

resources/legacy/cycleoffear_bangladesh_report_omct_2020-12-11-144514.pdf accessed on 3
January 2022.

Journals:

Hasan, Md. M., Arifuzzaman, Md., & Rahaman, M. M. (2017). “Torture in Lawful Custody:
Violation of United Nations Convention against Torture in Criminal Justice System in
Bangladesh” (2017) Beijing Law Review, 8, 397-422. https://doi.org/10.4236/blr.2017.84022
accessed on 4 January 2022.

S. M. Shahidullah Mamun, “Prohibition of Torture: Laws and Practice in Bangladesh” (2019)

Vol. XIII, No.2. page no.56.

Websites:

Odhikar, http://odhikar.org/torture/

BLAST, https://blast.ncbi.nlm.nih.gov/Blast.cgi

UN United Nations Treaty Collection.

http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter
=4&lang=en Universal Declaration of Human Rights. (1948)
 Reports:

“THREE-MONTH HUMAN RIGHTS MONITORING REPORT ON BANGLADESH”

(2021), published by Odhikar, http://www.odhikar.org/torture/ accessed on 2 January 2022.

Articles:

Clara Assumpção, “Can the Use of Torture in Intelligence Gathering Be Justified?” (2020),
published by E-International Relations, https://www.e-ir.info/2020/03/20/can-the-use-of-
torture-in-intelligence-gathering-be-justified/

“Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment”, (1987), https://www.ohchr.org/en/professionalinterest/pages/cat.aspx

Halim, M. A. (2009). The Legal System of Bangladesh. Dhaka: CCB Foundation

“Statement of National Security, Intelligence, and Interrogation Professionals” (2014)

published by human rights first, https://www.humanrightsfirst.org/resource/statement-
national-security-intelligence-and-interrogation-professionals

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