& çâÌæÚUæð´ ·¤è ¥ôÚU Îð¹Ùæ ÁæÚUè ÚU¹ð´ ¥ÍæüÌ ¥ÂÙð ÜÿØ ÂÚU ŠØæÙ ÚU¹ð´Ð ãæÚU Ù ×æÙð´, €UØô´ç·¤ ·¤æ× ·¤ÚUÙð âð ¥æÂ·¤ô ©gðàØ ·¤è Âýæç# ãôÌè ãñ ¥õÚU ÁèßÙ ·¤æ ¹æÜèÂÙ ÎêÚU ãôÌæ ãñÐ ÖÜð ãè ÁèßÙ ×ð´ ç·¤ÌÙè Öè ·¤çÆÙæ§ü €UØô´ Ù ¥æ°, çÁ™ææâæ ¥õÚU ©ˆâæã ÕÙæ° ÚU¹ð´Ð ŠØæÙ ÚU¹ð´, ÜÿØ ã×ðàææ ¥æÂ·Ô¤ Âæâ ãôÌð ãñ´ çÁ‹ãð´ ÂæÙð ·Ô¤ çÜ° ÂýØæâ ¥æÂ ·¤Öè Öè àæéM¤ ·¤ÚU â·¤Ìð ãñ´Ð

Law enforcers personally liable for extra-judicial deaths

M.S. Siddiqui
NO one shall be deprived of life or personal liberty, except according to the procedures established by law. Even a person under death sentence has human rights which are non-negotiable, and even a dangerous prisoner standing trial has basic liberties which cannot be compromised in any way. Under the law, no one, including the police, has an unqualified right to take the life of another person. Even convicts, under-trials, detainees, and other prisoners in custody cannot be denied this right.
On the other hand, death of a person at the hands of law enforcers amounts to culpable homicide not amounting to murder, unless it is established that the causing of death is not an offence in the eye of law.
Painful methods of execution for severe crimes, against the verdict of courts, were taken for granted as part of justice until the development of Humanism in the 1/''-century. Many countries have banned death penalty, and right groups are campaigning for elimination of death penalty for any crime whatsoever.
Though torture is absolutely prohibited now, it had often been used as a method of political re-education, interrogation, coercion and punishment throughout history
Adoption of the Universal Declaration of Human Rights in 1948 marks the recognition, at least nominally, of a general ban on torture by all United Nations member states. Nowadays, the prohibition of torture has been recognised as a peremptory norm of international law, and a number of international, regional and domestic courts have held the prohibition of cruel, inhuman or degrading treatment or punishment to be customary international law. Some other legally binding international treaties - like Geneva Convention and International Covenant on Civil and Political Rights, to which Bangladesh is a state party - prohibit torture.
Despite such constitutional and judicial denunciation of torture, it has been routinely practiced by law enforcement officials and security forces for a long time in Bangldesh.
Enforced disappearance is abduction or kidnapping, in which the victim "disappears,” carried out by state agents or organised groups and individuals who act with state support or tolerance. The authorities neither accept responsibility for the death, nor account for the whereabouts of the victim. The international community considers involuntary disappearance as a specific human rights violation and a crime against humanity. This culminated in the international convention for the protection of all persons from enforced disappearance.
If a law enforcer kills someone in an encounter, s/he must prove that the death was caused either in the legitimate exercise of the right of self-defense, or in the use of force proportional to the resistance offered while arresting a person accused of an offence punishable with death or life imprisonment. The cases are a representation of (a) illegal arrest and detention (b) torture (c) deaths and (d) disappearances. Bangladesh is now a land of extrajudicial killings (termed “crossfire" and "encounter") and enforced disappearances, with incidents of detention without trial, torture and death in police or jail custody being reported too.
The "United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" asserts that each state shall make legislation criminalising torture, and cruel, inhuman and degrading punishment and treatment. Bangladesh acceded to it in 1998.
Member of Parliament Mr. Saber Hossain Chowdhury introduced the "Torture and Custodial Death (Prohibition) Bill, 2009" as private member bill in the 9'1' Parliament. The act establishes that justice to all citizens is one of the responsibilities of the state according to Article 27 of the Constitution, and that all citizens are entitled to equal rights before the law, and also ensures that “no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment."
The Parliament passed the Torture and Custodial Death (Prohibition) Act, 2013 at the fag end of its tenure. It has defined custodial death as "the death of a person in the custody
of a public officer." Death of any person during illegal detention or at the time of arrest by any law-enforcing agency, or while being questioned, shall also be termed as "custodial death," irrespective of whether the person is a witness in a case or not.
It has provision for accusations by third parties before a Court, suggesting that a person is being or has been subjected to torture by another person. The Court shall record its own observations about the person making the allegation and shall take appropriate measures to ensure his/her safety. The law gives a timeframe for investigation of 90 working days from the date of recording of the first complaint, despite the linear provision in the Code of Criminal Procedure.
The law limits the provision of immunity for any action constituting an offence under this Act. That the offence was committed at a time when there was a state of war, threat of war, internal political instability or any public emergency; or on an order of a superior officer or a public authority, shall be unacceptable as an excuse. The offence includes (a) attempts to commit (b) assist or provoke or (c) conspire in committing, and means that all involved in any of those shall face the consequences.
It is surprising that the Torture and Custodial Death (Prohibition) Act, 2013 was passed by the 9"' Parliament, but the law enforcers are still punishing the offenders before trial in the name of crossfire, etc.
According to the new law, in case of any harm caused to a complainant on account of negligence or carelessness by a public officer or a person acting on behalf of a public officer, the accused shall be personally liable to prove that the said harm has not been caused due to negligence or carelessness by him/her or the person acting on his/her behalf. The law categorically criminalises the harmful actions of law enforcers, and says that they are personally liable for death in custody.
The writer Is a Legal Economist.
E-mail: shah@banglachemical.com