A case for defining and criminalising torture in Bangladesh
Wednesday, 12 May 2010
Saqeb Mahbub Rafi
As Bangladesh struggles, even with the restoration of a democratic government, to put an end to human rights violations in the form of extra-judicial killings and torture by law enforcers, one may wonder how far having a new criminal offence of torture will go, especially as a culture of impunity remains institutionalised in the justice system. There is a clear definition of torture and its establishment as a criminal offence through the passing of a bill currently pending in Parliament - The Torture and Custodial Death (Prohibition) Bill, 2009 - will have a number of significant impacts, and indeed be a necessary stepping-stone for many more much needed changes to come.
The constitution of Bangladesh, the highest law of the land, prohibits torture along with "cruel, inhuman, or degrading punishment or treatment" in Article 35(5). Rather unhelpfully, however, there is no definition given of torture in the constitution or in the Penal Code, nor is torture a specific offence in the Code. Despite ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1998, which provides a definition of torture and a clear direction to implement domestic law to criminalize torture, the first real action only came last year when a Private Member's Bill was tabled in Parliament to do so. However, to date the bill remains held up, arguably due to a lack of political incentive or motivation.
The fragility of the legal framework against torture becomes more evident as the constitution itself (through Article 46) allows Parliament to indemnify human rights violations of state officials by enacting legislation. The result has been less than fortunate as one may have expected. Parliaments have passed law legalising "drives" that have led to mass arrests and widespread torture in custody from time to time.
It is sad but true that these "drives" have at least at times ridden the back of some public support, as long-suffering, and sometimes very ill-informed, masses tired of poor law and order believed extra-judicial methods to be the only way of administering justice.
The public support for "drives" and the accepted culture of torture and impunity of state officials is, at least partially, down to the fact that references to torture in the media by human rights advocates are no more than casual references to the word. In the words of Marcy Strauss, a professor at Loyola Law School, Los Angeles, a meaning too wide means there is hardly an effect of "shock and disgust" on public opinion. People are then free to have their own conceptions of the meaning of torture, thus making it difficult for activists to raise awareness about it and easy for the state to produce its own interpretation as to what torture is.
Following on from the problem of having many possible interpretations arises the difficulty of pointing out clear binding standards for the state. Despite the constitutional commitment in Article 35(5) upon the state not to commit to torture, the state has gone so far as to indemnify and empower perpetrators through specific legislation from time to time. Without a clear definition of what the commitment entails, it is unsurprising that such "creative compliance" has been relied upon by successive governments.
It follows that without a definition of the rule, its defender lacks the ammunition to attack the derogations. The absurdity of a fundamental right against torture and legislation "allowing" torture (although without any specific reference to it) in certain circumstances coexisting constitutionally cannot be pointed out unless it is known with certainty what the fundamental right sought to guarantee, for which a clear definition of torture in the law is a necessary precondition.
Alongside providing a foundation for necessary reform of law that is effectively spurring the culture of torture and human rights violations, a definition of torture will do the same for the law on evidence, specifically, paving the way for redefining the circumstances under which confessions or admissions must be excluded from proceedings.
The definition of torture in the pending bill is derived from the one provided in the Convention against Torture. Article 1 of the Convention defines torture as: "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." While it may be conceded that even this definition will leave opportunities for successive governments to manipulate, it will indeed be a much-needed starting point for Bangladesh, giving the government a clear guideline of its responsibilities and giving activists something to work with.
The offences in the Penal Code (those in sections 319, 330, 320, 348, 166, and 119) that acts of torture can be prosecuted under have two significant limitations.
Firstly, the acts prohibited are limited and fail to encompass a wide range of established practices of torture by state officials, which would however fall under the Convention definition. Secondly, from a principled point of view, the offences and the punishments fail miserably to reflect the particular wrongness of such acts being committed by the state as opposed to private individuals. Criminalising torture in accordance with the Convention is important therefore to ensure blatant violations of human dignity do not go unnoticed by the law.
Passing the pending Torture and Custodial Death Bill is the Parliament's opportunity to send a strong message to state officials and their current practices and attitudes. In addition, it is likely to be a strong deterrent to such practice. At present, state perpetrators face internal disciplining (which are rarely carried out with diligence), possible fundamental rights action which "may" result in pecuniary punishment or civil suits under the law of tort. The bill, if passed will, besides providing the legal basis to prosecute perpetrators of torture, subject them to possible rigorous imprisonment, fines and termination of service.
The opportunity for change has never been so ripe. The bill pending in parliament is capable not only of bringing perpetrators of torture to justice and ensuring justice for the victims, it holds the key to changing public attitude to the practice of human rights violation and impunity. Defining torture will give substance and concept to what is now just a word while criminalising it will be a step towards proving the government's commitment to change. Although the complete eradication of torture would still be a long way away, a step like this will, without a doubt, open more than just a few doors.
The writer is in Department of Law (LLM), London School of Economics and Political Science, UK. He can be reached at S.B.Mahbub@lse.ac.uk
As Bangladesh struggles, even with the restoration of a democratic government, to put an end to human rights violations in the form of extra-judicial killings and torture by law enforcers, one may wonder how far having a new criminal offence of torture will go, especially as a culture of impunity remains institutionalised in the justice system. There is a clear definition of torture and its establishment as a criminal offence through the passing of a bill currently pending in Parliament - The Torture and Custodial Death (Prohibition) Bill, 2009 - will have a number of significant impacts, and indeed be a necessary stepping-stone for many more much needed changes to come.
The constitution of Bangladesh, the highest law of the land, prohibits torture along with "cruel, inhuman, or degrading punishment or treatment" in Article 35(5). Rather unhelpfully, however, there is no definition given of torture in the constitution or in the Penal Code, nor is torture a specific offence in the Code. Despite ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1998, which provides a definition of torture and a clear direction to implement domestic law to criminalize torture, the first real action only came last year when a Private Member's Bill was tabled in Parliament to do so. However, to date the bill remains held up, arguably due to a lack of political incentive or motivation.
The fragility of the legal framework against torture becomes more evident as the constitution itself (through Article 46) allows Parliament to indemnify human rights violations of state officials by enacting legislation. The result has been less than fortunate as one may have expected. Parliaments have passed law legalising "drives" that have led to mass arrests and widespread torture in custody from time to time.
It is sad but true that these "drives" have at least at times ridden the back of some public support, as long-suffering, and sometimes very ill-informed, masses tired of poor law and order believed extra-judicial methods to be the only way of administering justice.
The public support for "drives" and the accepted culture of torture and impunity of state officials is, at least partially, down to the fact that references to torture in the media by human rights advocates are no more than casual references to the word. In the words of Marcy Strauss, a professor at Loyola Law School, Los Angeles, a meaning too wide means there is hardly an effect of "shock and disgust" on public opinion. People are then free to have their own conceptions of the meaning of torture, thus making it difficult for activists to raise awareness about it and easy for the state to produce its own interpretation as to what torture is.
Following on from the problem of having many possible interpretations arises the difficulty of pointing out clear binding standards for the state. Despite the constitutional commitment in Article 35(5) upon the state not to commit to torture, the state has gone so far as to indemnify and empower perpetrators through specific legislation from time to time. Without a clear definition of what the commitment entails, it is unsurprising that such "creative compliance" has been relied upon by successive governments.
It follows that without a definition of the rule, its defender lacks the ammunition to attack the derogations. The absurdity of a fundamental right against torture and legislation "allowing" torture (although without any specific reference to it) in certain circumstances coexisting constitutionally cannot be pointed out unless it is known with certainty what the fundamental right sought to guarantee, for which a clear definition of torture in the law is a necessary precondition.
Alongside providing a foundation for necessary reform of law that is effectively spurring the culture of torture and human rights violations, a definition of torture will do the same for the law on evidence, specifically, paving the way for redefining the circumstances under which confessions or admissions must be excluded from proceedings.
The definition of torture in the pending bill is derived from the one provided in the Convention against Torture. Article 1 of the Convention defines torture as: "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." While it may be conceded that even this definition will leave opportunities for successive governments to manipulate, it will indeed be a much-needed starting point for Bangladesh, giving the government a clear guideline of its responsibilities and giving activists something to work with.
The offences in the Penal Code (those in sections 319, 330, 320, 348, 166, and 119) that acts of torture can be prosecuted under have two significant limitations.
Firstly, the acts prohibited are limited and fail to encompass a wide range of established practices of torture by state officials, which would however fall under the Convention definition. Secondly, from a principled point of view, the offences and the punishments fail miserably to reflect the particular wrongness of such acts being committed by the state as opposed to private individuals. Criminalising torture in accordance with the Convention is important therefore to ensure blatant violations of human dignity do not go unnoticed by the law.
Passing the pending Torture and Custodial Death Bill is the Parliament's opportunity to send a strong message to state officials and their current practices and attitudes. In addition, it is likely to be a strong deterrent to such practice. At present, state perpetrators face internal disciplining (which are rarely carried out with diligence), possible fundamental rights action which "may" result in pecuniary punishment or civil suits under the law of tort. The bill, if passed will, besides providing the legal basis to prosecute perpetrators of torture, subject them to possible rigorous imprisonment, fines and termination of service.
The opportunity for change has never been so ripe. The bill pending in parliament is capable not only of bringing perpetrators of torture to justice and ensuring justice for the victims, it holds the key to changing public attitude to the practice of human rights violation and impunity. Defining torture will give substance and concept to what is now just a word while criminalising it will be a step towards proving the government's commitment to change. Although the complete eradication of torture would still be a long way away, a step like this will, without a doubt, open more than just a few doors.
The writer is in Department of Law (LLM), London School of Economics and Political Science, UK. He can be reached at S.B.Mahbub@lse.ac.uk