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Eliminating torture

Basil Fernando
IN a recent meeting organised by the Dhaka based Odhikar human rights organisation, attended by a former chief justice, and both the present and formers ministers of law, there was a serious discussion on the problems faced in Bangladesh to eliminate torture. There was consensus that torture exists in a very serious way throughout the country and that the causes are systemic. The following are some of the causes mentioned during the discussion. Torture not a crime: Despite of the ratification of Convention Against Torture by the Bangladesh government in November 1998 no enabling legislation has been passed to make torture a crime in Bangladesh. Old British laws still remain. Such laws were made at times when the colonial regime used torture against all freedom fighters. Due to this defect in law, there is an impediment to developing a local jurisprudence regarding elimination of torture and the assimilation of international law against torture. There is no immedi-
ate plan to introduce such a law.
No compensation or reparations: No legal provisions have been made to enable victims of torture to make claims for compensation for torture. Thus, the jurisprudence of compensation and rehabilitation of torture victims developed elsewhere has not become part of law in Bangladesh. The state does not provide medical facilities for physical and psychological injuries suffered as a result of torture. There is no immediate plan to introduce such legal provisions.
Criminal justice system remains primitive: Introduced during the
colonial times, the system has hardly changed at all. Some of the laws themselves belong to the 19th or early 20th centuries. At no stage has there been a serious attempt to modernise the criminal justice system and to take advantage of the great developments which are happening elsewhere. The system of the implementation of laws is even worse.
Police officers overtasked: Such as providing protection to VIPs, doing day-to-day duties on foot or by
bicycle and at the same time carrying out criminal investigations. An average policeman is a jack of all trades but master of none. The idea of specialised police officers doing only their criminal investigations alone has not been introduced. One of the most primary reforms needed is to develop a separate criminal investigation branch and provide the necessary training and equipment for such a branch. The number of police officers available is in the ratio of 1:13,000. They are badly paid and poorly trained.
Public prosecutors selected politically: With every change of government all the officers holding public prosecutors posts throughout the country are replaced as each new government chooses its own set of public prosecutors. The result is that there is no accumulation of experience and there is no institutional legacy to pass on from one generation to another. Thus the skills of proper prosecuting does not develop in an organic way. Besides this there is naturally political bias.
No link between prosecutors and investigators: Due to the manner
in which the system was introduced in colonial times, the two branches remain completely separate. If the police for some reason do not investigate a crime the prosecuting branch has no responsibility for this matter at all. There needs to be some form of a link between the two branches so that the prosecuting branch can be made aware of the serious crimes that are being investigated and play a role in advising on basic legal issues. In this way the prevention of the fabrication of cases by the investigating branch against innocent persons can also be achieved. By collaborating while preserving the independence of each branch it is possible to avoid prosecutions without sufficient evidence and also to ensure successful prosecutions. At the moment the success rate is extremely low.
No independent investigations of police officers: At the moment these things are carried through the same system of investigations as other crimes. Naturally, when police officers within the same branches have to investigate their
colleagues there is bound to be undue interference. The result is the lack of confidence on the part of the public in such investigations. Due to the lack of such faith many people may not even be complaining about the problems they encounter.
No witness protection programme: In many cases people do not want to complain or to give evidence, as they fear serious repercussions. This is particularly so regarding serious crimes. After witnessing horrendous forms of killings, people do not want to come forward and give evidence. The reason is that they know that they have no protection and that the perpetrators of such serious crimes would take revenge. This also applies to the victims of human rights violations who complain about law enforcement officers. In the local context these officers are very powerful and can cause serious harm to the victims, their families, and their properties. There is an immediate need to address this issue in a very serious manner if there is to be a serious improvement
in the people's cooperation regarding the systems of justice.
Politically motivated attacks: Often torture is a result of deliberate attempts to harm individuals engaged in political opposition. When one party is in power they harass others and this is repeated when a new party comes into power. While this can happen in a very large scale there has been no serious attempts to develop ways to eliminate this type of political repression of opponents through the law enforcement systems for political purposes. It remains an important part of the strategy to eliminate torture in bang to develop consensus.
Most torture victims poor: What is done to the poor does not attract public attention and bad treatment of the poor takes place in all areas of life. Thus, bad treatment of the poor at police stations is not considered an exception. The poor have little access to the law. Thus, a large amount of torture cases do not come to the attention of the public at all. Constant reporting on all cases of torture has not yet happened as a
regular habit.
No monitoring institutions: Despite of years of discussion about the establishment of a Human Rights Commission, no practical steps have been taken to implement it. Many years of discussion and even the drafting of some legislation has taken place in the past. However, for some unknown reason, practical implementation has been postponed. There is no time table set for the setting up of this institution. At the moment there has not even been a commitment given by the government to establish it. Even the opposition are not pressing for it as matter of urgency and sadly, civil society organisations have also not manifested their interest in a demonstrative manner.
Non-state actors: There are civil society actors who engage in torture for various reasons such as political or religious reasons. There are even ideological defences of such actions. A general ethos of intolerance contributes to such tendencies. The existing tolerance of discrimination against women also contributes to the fact that no effec-
tive action has been taken to eliminate violence against women.
All these obstacles are commonly acknowledged by everyone, including the major political parties who have a hand in the making of public opinion in the country. However, despite such consensus on the serious systemic defects that allow torture to go unabated in Bangladesh, there is no strong lobby calling for practical action to address these problems. It should be the specific role of civil society organisations to take a leading role in fostering public opinion in order to change this situation. By effective lobbying with specific demands for action, the existing consensus can be improved by enhancing the capacity for making complaints, proper investigations, and other actions to eliminate torture.
Basil fernando is executive Director of Asia Human Rights Commission.