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Taking a meaningful stand against torture

Muhammad Zamir
THE world, in recent years, has witnessed many complex situations that evolved because of intolerance. inequity and disregard for the principles of fundamental rights. Activists and jurists have analysed such scenarios and have identified torture and the use of torture as a catal)iic factor in this regard. They have done so because state actors appear to have used it as a means to restrict or influence the due process oflaw.
Torture of any form, at any time, particularly while in custody or interment is reprehensible. Carrying out such an action, through deliberate choice, must never be tolerated or encouraged. It affects the rights of the accused and his dignity of person.
It is this expectation that has driven conscious citizens of our region, over the past two decades, to stress on the importance of established rules and procedures and to seek the abolition of torture as an instrument for obtaining information. In Bangladesh, after the revival of democracy earlier this year, we have watched the anger and the many accusations that have been made against the law enforcement agencies and personnel by formerly interned politicians. These politicians have pointedly remarked that torture was used to forcibly extract confessional statements. They have also demanded that suitable investigations be carried out in this regard and those found
guifty be punished.
The print media has in the past months also highlighted cases of several deaths while in custody. Odhikar, a human rights activists’ organisation, has also released several reports of alleged extra-judicial deaths where law enforcement agencies have been implicated. The term "crossfire" has gained notoriety and has become the symbol of misapplied justice.
One really does not know if all the allegations being made are in fact true. However, the consistent nature of deaths while in judicial custody and the habit of "crossfire" does reflect the possibility that some of our responsible institutions are not being consistent with different constitutional provisions. That needs to be avoided because it creates a credibility gap within the judicial process.
I refer in this regard to Article 35(5) of the Constitution that states:" No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment." There are also the Fundamental Principles of State Policy in Part II of the Constitution (not enforceable by the judicial process) that include reference to democracy, human rights, freedom and respect for human dignity and worth of the human person (Article 11). There is also specific constitutional reference whereby all will enjoy equality before the law (Article 27) and protection of law and trial "in accordance with law." There are also constitu-
tional provisions pertaining to safeguard from arbitrary arrest and detention. Articles 31 and 32 also refer to right to protection of law and protection of right to life and personalliberty.
Nevertheless, successive governments in Bangladesh have not always been able to abide by all these constitutional provisions. It has not always been easy, not always black and white -- particularly during periods of emergency. This has been so despite public expression of political will by different leaderships. This incongruity has permitted gray zones to creep in, Ambiguity in certain provisions in the Code of Criminal Procedure has also not helped. I refer in this regard to the infamous Section 54, which, over the years, has often been used for political ends.
Fortunately, it is generally agreed that our High Court has always tried to provide positive interpretations by tending to disregard information obtained through torture, and has questioned its legal validity as evidence within the scope oflaw.
Today, torture and the use of torture have not only drawn the attention of the international community but also of our domestic activists. Many of us have protested about lack of judicial process and rule of law with regard to the Guantanamo facility. This has led to efforts to bring about a degree of accountability in the procedure for interment there.
This spirit of awareness partially emerged because of Bangladesh's commitment for human rights. This was seen as being consistent with our stand and determination that encouraged us not only to sign but also later ratify (on 3 October, 1998) the Convention againstTorture.
We did so because we believe in Article 3 of the Universal Declaration of Human Rights, which observes that "everyone has the right to life, liberty and security of person." We are also a signatory to the International Covenant on Civil and
Political Rights. Articles 6, 7 and 14 of this Covenant underline the right (o life, abhorrence of inhuman and degrading punishment and equality before the law - which in turn are consistent with our constitutional provisions.
The above being true, we need to effectively focus on meaningfully observing all aspects expected of us as a responsible signatory.
We have to understand in this context that there has to be suitable implementation of existing domestic laws and available constitutional provisions. We also have to be consistent with our obligations under international legislation. That should include the prospect of providing victims with "effective remedies." This will then, in turn, assure the possibility of victims being assured reparations for injuries suffered.
Unfortunately, this inter-connectivity between suffering (both physical and mental), injury and redress has not always been upheld.
The question ofapplication of torture, if o one may say so, is sometimes referred to as 5 being a matter of attitude. Accordingly, the § impunity with which state institutions
participate in such exercise is often dependent on the kind of governance practiced within its paradigm. I believe that within such a matrix, transparency, with regards to rights of the accused to be informed of the charges that have been levied against him can directly impact on the process. This will contribute towards accountability of those in charge of his incarceration and can improve implementation of expected behaviour.
Bangladesh has been elected for a second term to the UN Human Rights Council in 2009. This is international recognition of our commitment. This has also raised the moral threshold of our responsibilities. Consequently, we have to be more aware of the expecta-
tionsofothersinus.
In this context, our government should seriously examine all the denotations and connotations pertaining to the Optional Protocol to the Convention againstTorture and other Cruel, Inhuman or Degrading Treatment or Punishment as contained in UN General Assembly Resolution A/RES/57/199 adopted on December 18, 2002. A review could also be undertaken to identify how we can strengthen the capacity and the mandate of the national preventive mechanisms for the prevention of torture. This would be consistent with Article 11 of Part III of the Optional Protocol. The provisions in Article 14 of the
Optional Protocol related to the permitting of opportunities "to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary" could also be examined.
There will be those who will advise on the need to exercise caution. They will point out that this issue is complex and can have ramifications for state security and strategic interests. My response to them is that torture under any pretext, is not an acceptable answer to any problem.
Muhammad Zamir is a former Secretary and Ambassador and can be reached at mzamir@ dhaka.net
**I believe that within such a matrix, transparency, with regards to rights of the accused to be informed of the charges that have been levied against him can directly impact on the process. This will contribute towards accountability of those in charge of his incarceration and can improve implementation of expected behaviour.**