Watershed legislation criminalising torture in Bangladesh
Watershed legislation criminalising torture & custodial violence enacted in Bangladesh
The Asian Human Rights Commission (AHRC) congratulates the people of Bangladesh for the enactment of the Torture and Custodial Death (Prevention) Act, 2013. The Jatiyo Shangsad (National Parliament) enacted the draft law, the Torture and Custodial Death (Prevention) Bill, 2013, yesterday. The enactment is the quintessence of the struggles and demands of the people, survivors of torture, families of extrajudicial executions, and human rights defenders to end the culture of custodial violence in the country. With the passing of this special statute, which criminalises all forms of custodial violence, Bangladesh shares a covetable position amongst its counterparts in Asia.
Unique in the history of this enactment is the fact that the Bill was presented in the Bangladesh Parliament as a private member Bill. Mr. Saber Hossain Chowdhury, the MP who presented the AHRC-drafted original text as a Bill before the Bangladesh Parliament and, along with the AHRC, lobbied for its passing, is a torture survivor. This law, which will enable everyone in Bangladesh to fight against all forms of custodial violence, is thereby one that draws from both the experience of a human rights group and the personal experiences of a torture survivor.
The new law mandates suspension of the accused from service during investigation into the charges, regardless of whether the suspect is a member of a regular law-enforcement agency, the armed forces, or any other government office. For deaths in custody, the accused can be sentenced to a maximum life term in jail and be fined. The law also provides for monetary compensation to be paid to the victim by the convict. For torture in custody, the law warrants five years' rigorous imprisonment and a fine.
For the first time in Bangladesh, the law addresses delays in investigation and adjudication of the cases of custodial violence. The law mandates that investigations into cases of torture will have to be completed within 90 days of registration of a complaint, and the trial will have to be completed within 180 days. The law also allows the Bangladesh courts to take cognisance of a crime based on the complaint a person makes to the court, and mandates the court to direct a medical examination of the complainant.
Enacting a legislation that criminalises torture and other forms of custodial violence, while representing a leap forward, is not an end in itself. Bangladesh today lacks adequate implementation architecture to breathe life into this new law. While Bangladesh's civil society and the Government of Bangladesh should take all possible steps to advertise the new law – in relation to its legal and its practical implications for the people and all limbs of the state – it is equally important for Bangladesh to revisit priorities on criminal justice institution reforms.
Today, Bangladesh shares an unenviable position with its peer nations because it has one of the most dysfunctional and defunct criminal justice mainframes in Asia. Corruption is rife in the investigative, prosecutorial, and adjudicative limbs of the Bangladesh criminal justice machinery. Exceptional challenges exist for those that dare to make complaints of custodial violence in Bangladesh. While this has been addressed to a certain extent by the new law – now a complainant can approach the court to file a complaint against torture and other forms of custodial violence – however, the new law will still require an effectively functioning investigative apparatus to deal with prompt investigation of torture and custodial violence claims. The new legislation also provides for adverse presumption against the state agent, if it is proven that a person under the state's custody has been tortured or has died whilst in custody. For such features of the law to safeguard the citizens of Bangladesh in practice it will take much more than mere promulgation. It requires both reform in the criminal justice apparatus and commitment to the spirit of the law.
The AHRC therefore calls upon the civil society of Bangladesh to own this moment. No resources must be spared to give wide publicity to the new law and to demand that the Government of Bangladesh immediately prioritise police and criminal justice institution reforms. The AHRC also calls upon the political parties of Bangladesh not to fail the citizens of Bangladesh. No matter which party takes power in the upcoming elections, the spirit of the law passed in Parliament must be upheld in its implementation to safeguard the people.
The spirit of a legislation lives on when it is enacted in an environment where its implementation is possible. The spirit is protected when the enactment leads to the drastic reforms required to allow the law to fulfil its purpose. If the spirit of the law is protected in implementation, it has the potential to change Bangladesh into a different country, one where corruption and custodial violence would be stories of the past.
Such a watershed legislation is not often passed in the history of states.
The AHRC expects that the people of Bangladesh will not let the opportunity pass.
The AHRC recommends that the new law be included in all legal education programs immediately, for law students as well as for police and judicial officers. The immediate future must be devoted to creating public awareness of this law, as well as to encourage victims to make and pursue claims on the strength of this legislation. This is a crucial period, not only for implementation of the law but, for the struggle to achieve the reforms that Bangladesh requires in order for it to possess a functional rule of law system.