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Wednesday, October 28, 2009

[ALOCHONA] Farhad Mazhar and Adilur Rahman Khan on human rights violation

Two articles of Farhad Mazhar and Adilur Rahman Khan on human rights violation
Farhad Mazhar :
Adilur Rahman Khan:
Getting away with torture
A culture of impunity protects the perpetrators and since most of the investigations are carried out by the same agencies it is almost impossible to get redress for torture victims. There is no independent authority to complain against the law enforcement authorities, writes Adilur Rahman Khan
BANGLADESH'S record has never been good in respect of the international standards for human rights. Incidents of human rights violations have been commonplace during different regimes. In the 23 months of the state of emergency imposed by the military-backed caretaker government, many political activists, human rights defenders, journalists, teachers and professionals were subjected to inhuman or degrading treatment by security and intelligence agencies, and law enforcement forces.
   Torture and impunity
   TORTURE and ill-treatment of persons deprived of their liberty usually takes place in detention centres that are inaccessible to any form of public scrutiny. This is the ideal context for torturers to operate with complete impunity. Torture constitutes a gross violation of the fundamental rights of human beings. It destroys the dignity of humans by causing injuries, sometimes irreparable, to their bodies, minds and spirits. The horrific consequences of such human rights violations affect the family of the victims and also their social surroundings. Through these acts, the values and principles upon which democracy stands lose their significance.
In Bangladesh torture is not considered a crime. It is widely criticised; however, it is still not criminalised. Bangladesh is yet to meet its legal obligation to stop torture although it is a party to the Convention against Torture. According to international laws, torture and ill-treatment are totally forbidden and are recognised as international crimes. To uphold human rights, international conventions should be followed, torture considered a crime, criminals punished and victims adequately compensated.

   The constitution of the People's Republic of Bangladesh explicitly states that 'no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment' [article 35 (5)]. However, the trend of torture and inhuman and degrading treatment by law enforcement agencies continues.
 The trend of torture and killing by law enforcement agencies is not an unfamiliar phenomenon, as we are familiar with the Jatiya Rakkhi Bahini, which came into force from the February 1, 1972 and became infamous for its extrajudicial killings of about 30,000 leftist operatives (as claimed by the victim organisations) till its absorption into the army by a gazette notification dated October 4, 1975. During Operation Clean Heart in 2003, many people died while in custody of the joint forces.
 In March 2004 the Rapid Action Battalion, was created by amending the Armed Police Battalions Ordinance 1979 and enacting the Armed Police Battalions (Amendment) Act 2003. It can investigate and work for all security purposes, especially as an elite law and order enforcement agency, which is to have a special focus on curbing organised crime and eliminating 'top criminals'. Since its formation, a trend of 'death in crossfire' has been created. However, there are also an alarming number of deaths in RAB custody and a few of these can be interpreted as being political. People also got killed in the hands of police in the name of 'crossfire'. According to Odhikar, in 2004, 169 people were killed in 'crossfire'. In 2005, 396 people were killed in 'crossfire' by both RAB and the police.
 After the formation of RAB and other auxiliary forces like Cheetah and Cobra of the police, according to some, the law and order situation has improved and the general population are apparently happy with it. However, from a humanitarian and legal point of view, one cannot justify this type of killing. Every person has the right to fair trial.

   In 2006, 355 people were killed extra-judicially by law enforcement agencies while in 2007 184 people have allegedly been extra-judicially killed by law enforcement agencies. From January 1 to December 31, 2008, 149 people have allegedly been extra-judicially killed by law enforcement agencies.
The government uses the term 'crossfire' to mean gunfights between any criminal group or 'hardened' criminals and RAB or the police. The term 'death in encounter' is used in other countries to mean the same thing, but the term 'crossfire' is preferred by law enforcement agencies in Bangladesh. The sinister connotation associated with the word demonstrates utter powerlessness in the face of extrajudicial killing that is taking place in Bangladesh.
Though there is no legal definition of 'extrajudicial killing', if death occurs by the hand of a member of the law enforcement agency, without following legal rules or due judicial process, it can be termed as 'extrajudicial'. 'Crossfire' is extrajudicial execution that is in flagrant violation of the constitution of the country and the international human rights conventions of which Bangladesh is a party.
   Article 32 of the constitution ensures protection of right to life and personal liberty in accordance with law. Because of the consequences of such deprivation, the framers of the constitution made this specific provision even though it was already covered by article 31.
 According to the constitution, the fundamental state policy, although not enforceable by court, are democracy, human rights, freedom and respect for human dignity (article 11). Constitutional rights are available to enjoy equality before the law (article 27), protection of law and trial 'in accordance with law' and safeguards from arbitrary arrests and detention. However, ambiguity in constitution repeatedly surfaced with regard to the Code of Criminal Procedure, particularly section 54, although High Court came up with a positive interpretation in respect of information obtained through torture and its legal validity as evidence within the scope of law.
Constitutional ambiguity and absence of law on the absolute right of a person – that no one can be tortured or treated inhumanly in any forms under any circumstances – despite the availability of international covenants is the major challenge of the human rights defenders.

   Many justify torture as a tool of extracting information for greater interest of reducing crime and thus improving law and order. But it has been proven time and again that torture is a useless tool. Information extracted through torture loses value when the victim says he was insisted by the authorities to make confession before the court. Specialists casually note that torture is nowhere regarded today, officially at least, as a legitimate judicial procedure for eliciting truth. Those who are supposed to know why write: 'Constitutions outlaw the practice. The criminal law generally punishes it. The courts are almost everywhere required to exclude evidence collected by means of pressure generally considered to render the evidence unsafe. Torture is so excoriated that allegations that it has been used are generally denied in the most vigorous terms.'
   As per article 3 of the Universal Declaration of Human Rights, 'Everyone has the right to life, liberty and security of person.' Bangladesh is a signatory to the International Covenant on Civil and Political Rights, and as a signatory, it is under obligations to respect the covenant, including articles 6, 7 and 14, which talk about the right to life, inhuman and degrading punishment and equality before the law respectively.
The Convention against Torture, adopted by the United Nations, signified an enormous progress by categorising the practice of torture as an international crime and by creating the mechanisms to denounce it. However, despite efforts on the issue of prevention, progress has been limited at the national and international level.

   The convention was ratified by Bangladesh's government on October 5, 1998. All states that have ratified and signed the convention have agreed to count torture as a punishable crime in their national laws. Bangladesh has also been elected for a second term to the UN Human Rights Council.

   What can be done by Bangladesh to curb this trend of torture and impunity? The following recommendations have been suggested:
   There is the urgency to form an independent investigation department to take complaints against the members of law enforcement agencies, including the security agencies, equipped with their own investigators
 Torture has to be rejected and disowned by the authorities, who have to make it clear that acts of torture would not be tolerated and the perpetrator would also not be protected in any way
   Impunity is seen everywhere, but nowhere more pronounced than in the extrajudicial killings carried out by law enforcement agencies. Not a single individual has ever been made to account. Impunity of law enforcement agencies must end

   Law enforcement agencies need to be accountable and the government has to make sure the perpetrators of human rights abuses are brought to justice
   Proper implementation of existing laws of the country with regard to international laws is needed
   There is a need to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered
   Torture and extrajudicial killings prevail in Bangladesh due to lack of accountability and impunity of law enforcement agencies. A major reason for this is that torture is still not considered a crime. It has not been criminalised yet. Since we have no national law against torture, no practical step can be taken against this. As a result, incidents of torture and violations of human rights are being perpetrated, in different forms, by law enforcement agencies.
Torture has become so endemic that once a person is arrested the assumption is that he will be tortured. It is so because of the impunity accompanying torture. It is used as a tool by law enforcers to extract 'confession' and considered as routine work.

   In Bangladesh, successive governments have consistently failed to meet its obligations to investigate violations; to take appropriate measures in respect of perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations. This has enabled the culture of impunity to take deep root.
A culture of impunity protects the perpetrators and since most of the investigations are carried out by the same agencies it is almost impossible to get redress for torture victims. There is no independent authority to complain against the law enforcement authorities.

   As such, torture and extrajudicial killings remain and continue to be a source of major concern and a glaring example of human rights violations in Bangladesh. The government has many promises, including 'zero tolerance' regarding extrajudicial killings, those pledges made during election to the UN Human Rights Council in 2009 for the second term but has not followed through these promises.
   Adilur Rahman Khan, a former deputy attorney general, is secretary of the human rights group Odhikar


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