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Asia-PacificJournal on Human Rights and the Law 2: 1-27, 2003.
© 2004 Koninklike Brill NV. Printedin the Netherlands

TORTURE UNDER POLICE REMAND IN

BANGLADESH: A CULTURE OF IMPUNITY FOR
GROSS VIOLATIONS OF HUMAN RIGHTS

M Rafiqul and S M Solaiman*

1. Introduction

In a recent caption "The Prisoner's Tale" published in New York Time

Magazine on 10 February 2003, a BBC Channel Four journalist recounts
his personal experience of inhuman brutalities inflicted on him while in
police custody in Bangladesh. His account also reveals that, of more than
four thousand people arrested since October 2002, 44 have died in custody
as a result of torture. Police remand in Bangladesh has become
synonymous with violent torture, degrading treatment and inhuman
punishment. There appears to be an unholy nexus between law
enforcement agencies and empowering magistrates in dealing with cases of
suspicious arrest without warrant, which has been causing custodial deaths
and injuries to numerous innocent citizens.

A recent survey on the role of the police and the lower judiciary reveals
that only less than two per cent of citizens are satisfied with the former,
and eight per cent with the latter.' The police indiscriminately arrest
innocent civilians merely on the basis of suspicion and without any
warrant primarily for receiving bribes.2 The arrestees who cannot afford to
pay bribes for a quick release are being put in remand where they may be
subjected to barbarous treatment resulting in death. It may also see them

Respectively Associate Professor of Law, Macquarie University, Sydney,

and Lecturer,
Faculty of Business, University of the Sunshine Coast, Australia.
1 Editorial, "Police and judiciary", The New Nation, Dhaka, 28 May 2002, online; The US
Sate Department Country reports on human rights practices in Bangladesh, 4 March 2002,
.11.
'Reasonable suspicion vs. unreasonable impunity", The Daily Star, 8 December 2001,
Dhaka, online, report by human rights organisation Odhikar.
 TORTURE UNDER REMAND IN BANGLADESH

implicated ex post facto in criminal cases based on confessions extracted

during remand by employing "third-degree" methods. Eventually many of
them choose life term imprisonment as a comparatively better alternative
to successive repressive remands and hiding the coercion used for their
confession. The number of custodial deaths in jails and police stations
surpasses 19,000 since 1972, of which barely three or four cases have so
far been tried.

This ongoing trend of custodial tortures leading to deaths and irreparable

bodily injuries has surged alarmingly following the October 2001 election.
Between then and May 2002, 105 arrested persons have been tortured, of
whom 54 have died in police custody and jail. 4 In a single month (13 May-
12 June 2002), 10,077 people were arrested, of whom 7304 merely on
suspicion.5 In some incidents, victims died after arrest even before they
were presented to the courts as required by Article 33 of the Constitution
of Bangladesh and s. 61 of the Bangladesh Code of Criminal Procedure
1898 (CrPC).6 In Rubel Custodial Murder Case of 17 June 2002, the Court
held that many innocent people have been subjected to harassment due to
the abuse of the law and that legislators should examine the procedure
used for interrogation in police custody.7

The problem is now so serious and widespread that it has offended the
sense of propriety of civil society in Bangladesh. Members of the
incumbent government readily admit the abusive use of suspicious arrest
and subsequent tortures by the police. The Minister for State Affairs has
admitted that the police are out of control.8 The Law Minister himself has
acknowledged the practice of torture. 9 The Finance Minister has also
expressed his grave concern for police excesses on 23 June 2002. So have
the Chair of the Bangladesh Law Commission and a former Inspector
General of Police in a BBC interview on 20 June 2002.10 The magnitude of
3 Ain 0 Salish Kendro (ASK), Human Rights in Bangladesh 1998, Dhaka: The University
Press Limited, 1999, p. 60.
4 S K Dey, "Murder after arrest of innocents under s 54: Tortures exceed all records", The
Janakantha,, Dhaka, 23 May 2002, online.
5 The Ittefaq, , Dhaka, 13 June 2002, online; M A Rahman, "Frustrating joint special drive",
The Daily Star, 26 May 2002, online.
6 "Jamal died from physical torture: Human rights organisations", The Daily Star, 30 April
2002, online; S Kabir, "Jamal died in police custody and an unprecedented legal battle",
The Janakantha,7 May 2002, online.
"Restore confidence in cops, stop abuse of law", The Daily Star, 18 June 2002, online.
Z A Khan, "'Ministers say 'police out of control' but Home Ministry indifferent: The
criminal crackdown farce", The Holiday, Dhaka, 17 March 2002, online.
9 The Jugantor,, Dhaka, 25 May 2002, online.
10The Janakantha,23 June 2002, online.
 M RAFIQUL AND SM SOLAIMAN

the situation has outgrown its domestic sphere and intruded into the
consciousness of various international and regional human rights
organisations."'

The protection to the life and personal liberty of individuals are inalienable
and universal human rights recognised in a growing body of international
human rights instruments of which Bangladesh is a party. Bangladesh is a
ratifying party of the 1966 InternationalCovenant on Civil and Political
Rights (ICCPR) and the 1984 Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. It is also a
signatory of the 1948 Universal Declaration of Human Rights. These
instruments unequivocally outlaw all kinds of torture, cruel, inhuman or
degrading treatment or punishment without any derogation. The Universal
Declaration (Article 5), ICCPR (Articles 4.2 and 7) and the Torture
Convention may be relied upon to show that acts of torture under police
remand in Bangladesh constitute a gross violation of human rights
recognised in and protected by international law and the United Nations.
The Constitution of Bangladesh guarantees fundamental rights to life and
personal liberty (Article 32), equality before law (Article 27), protection of
law (Article 31), safeguards against arrest and detention (Article 33) and
freedom of movement (Article 36). Its protection in respect of trial and
punishment requires that "no person shall be subjected to torture or to
cruel, inhuman or degrading punishment or treatment" (Article 35.5).
These constitutional guarantees are not barely ornamental and declaratory,
but entail precise legal obligations. Articles 44 and 102 of the Constitution
provide judicial remedy against any violation of fundamental rights.

The international dimension of torturous police remand in Bangladesh,

which in its own right can be the content of an independent work, is not
examined here. This article purports to examine the practice of torture
under police remand from the perspective of constitutional and criminal
law of Bangladesh. It argues that human rights are infringed with impunity
right from the moment of suspicious arrest until the end of the remand
period. The police have consistently been misusing their qualified right to
arrest people without warrant and in most cases for illegal purposes on the

I Notably Amnesty International (Al) Reports on Bangladesh 2001 and 2002, the US State
Department Report, Transparency International (TI), the World Organisation Against
Torture, the Asian Human Rights Commission, American Association for the Advancement
of Science, Physicians for Human Rights, the South Asia Forum for Human Rights; The
Daily Star, 16 November 2001, 6 January 2002 and 26 May 2002, online; The
Janakaantha,26 May 2002, online.
 TORTURE UNDER REMAND IN BANGLADESH

plea of maintaining law and order. The guilt of arrested persons cannot be
established by extracting confession through coercion.

The gravity of the situation calls for urgent remedial and reform measures
in order to avert an outright public confidence crisis in the administration
of the criminal justice system. In response to mounting pressures and
ongoing criticisms, a slow move towards reforming the law and procedures
of police remand is under way. This article is intended to underscore the
urgency of such reform, which is long overdue. To this end, the article
pursues a reformist approach and offers certain remedial measures to
combat the custodial violations of human rights after depicting the law and
practices concerning the arrest of crime suspects and subsequent remands.
The transparency and accountability of activities of the governmental
agencies involved in suspicious arrests and remand process are high on the
reform agenda. The ongoing culture of impunity for these illegal acts can
only cease by bringing their perpetrators to punitive justice under criminal
law and their victims to curative compensation under public law.

2. Suspicious Arrests and Police Remands in Bangladesh

2.1 The existing law of remand

Section 54 of the CrPC authorises the police to arrest without warrant.

There is a similar provision in the Dhaka Metropolitan Police Ordinance
1976 (s. 86), which is applicable only in Dhaka, the capital city. The
magistrate grants remand on a request from the arresting police for
extracting confessional statements or evidence from the arrestee. Section
54 entitles the police to arrest anybody without warrant on the basis of
reasonable suspicion of committing, or being involved in the commission
of, an offence. This power of arrest is not unqualified. It is contingent upon
the existence of any one or more of the nine grounds expressly specified in
the section, which clearly identify the persons coming within its ambit.

Thus s. 54 does not permit the arrest of citizens merely on apprehension

not substantiated by plausible grounds. Generally it allows the police to
arrest convicts, accused persons of pending cases, possessors of stolen
property or possessors of instruments useable for house breaking. In
addition to this in-built safeguard in s. 54, the Constitution and the CrPC
contain explicit provisions to save the detainees from any torture in police
custody. Article 31 of the Constitution affords all citizens their inalienable
right to be treated only in accordance with law and "no action detrimental
 M RAFIQUL AND S MSOLAIMAN

to the life, liberty, body, reputation or property" shall be taken beyond the
purview of law. Article 33 provides safeguards to the arrested persons in
that he/she must be (a) informed of the grounds for his/her arrest
immediately, (b) allowed to consult and be defended by a lawyer of his/her
choice, and (c) produced before the magistrate within a period of 24 hours.
This provision further requires that no one shall be detained in custody
without the authority of a competent magistrate beyond this period. The
CrPC contains specific measures under ss. 61, 324-331, 335, 339, 352, 355
and 358 protecting all persons from being subjected to torture.

Legal expressions are definite to the extent that they are uniformly
understood in content and procedures. The expression 'reasonable
suspicion' in s. 54, though not an unusual legal expression, has widened
the scope of its frequent misuses and made it a very frightful law. Wishful
arrests under the guise of 'reasonable suspicion' are rampant. The right of
the arrestee to consult lawyers is denied by disregarding the orders of the
High Court Division (HCD) of the Supreme Court. 12 A police remand is
granted under s. 167 of the CrPC, though the term 'remand' is not
mentioned there. The term finds expression in s. 344 of the CrPC, which
permits the courts to send an accused of a pending case on remand by
warrant for the period of its adjournment of hearing. Section 167 requires
the presentation of the arrested person before the nearest magistrate by the
arresting police, who finds that the investigation could not be completed
within 24 hours as prescribed in s. 61 of CrPC and that there are grounds
for believing that the accusation or information is well founded. In so
doing, the police officer is required to transmit a copy of the entries in the
diary concerning the arrest to the magistrate as well as to the arrested
person.

The pertinent practices however greatly differ from these statutory

requirements and limitations, which are frequently flouted. The police
rarely preserve the case diary and submit it to the magistrate. In most
cases, the magistrate does not even ask for a copy of the police diary of
arrest. Similarly, the magistrates are empowered to grant remand under s.
167, if they are satisfied that there are grounds for believing that the
accusation or information is well founded and required to record their
reasons for granting remand. Article 33(5) of the Constitution obliges the
magistrate granting remand to communicate the reasons to the arrested
person in order to afford him/her the opportunity of making

12 sKabir, "Torture in Remand: Gross Violation of Human Rights", The Janakantha,24

May 2002, online.
 TORTURE UNDER REMAND IN BANGLADESH

representations against the remand order. But they seldom record their
reasons with substance and clarity for allowing remands. 3 Thus, a culture
of police-magistrate joint collaboration has emerged in granting remand
under s. 167 in defiance of its overt legal requirements and restrictions.

Section 54 is more than a century old law made by the British in the
interest of its colonial administration in India. In England, a new section
has been inserted in the Police and Criminal Evidence Act 1984 to the
effect that the power without warrant must be related to and limited by the
object to be served by the arrest. The object is to prevent the suspect from
destroying evidence, interfering with witnesses, warning accomplices who
have not yet been arrested, or where there is a good reason to suspect the
repetition of the offence and not to every case irrespective of the object
sought to be achieved. The new law has contributed to the minimisation of
custodial violence to a significant extent. 14 The legal limitations on the use
of police power to arrest without warrant are explained by the Supreme
Court of India in JoginderKumar v State of UP:

No arrest can be made because it is lawful for the police officer to

do so. The existence of the power to arrest is one thing. The
justification for the exercise of it is quite another. No arrest should
be made without a reasonable satisfaction reached after some
investigation as to the genuineness and bona fides of a complaint
and a reasonable belief both as the person's complicity and even
so as to the need to effect15
arrest. Denying a person of his [or her]
liberty is serious matter.

Section 54 relating to suspicious arrest without warrant in Bangladesh is

not inherently defective and its necessity for peaceful habitation may not
be gainsaid. But its abusive application is not providing any benefits to the
civil society. Because of the corrupt practices of some officials involved in
its enforcement, the law has become a convenient tool legitimising, not
preventing, brutalities and atrocities.

13 "The Daily Star Dialogue on arrest and police remand: Accent on check and balance in
legal system", The Daily Star, 11 April 2002, online. A H M Kabir, "Police remand and the
need for judicial activism", The Daily Star, 7 April 2002, online.
14Cited in D KBasu v State of West Bengal (1997) AIR 616.
"5(1994) 4 SCC 260.
 MRAFIQUL AND S MSOLAIMAN

2.2 Empowering magistrates and period of remand

Section 167 empowers any first class magistrate to authorise the detention
of any person arrested by the police under s. 54. Magistrates, other than
first class, need to be specially empowered to be able to authorize such
detention. Under s. 167(5) of the CrPC, the competent magistrate may
continue the detention up to 120 days. A magistrate who lacks jurisdiction
to try the case in question is allowed to grant detention for 15 days (s.
167.2). If such a magistrate considers further detention necessary, he/she
may order the accused to be forwarded to the magistrate competent to try
the case.

However, the period of remand under s. 167 is too long to be justified.

This prolonged detention of arrestees, who in many cases are innocent, for
the purpose of extracting confessions or evidence, raises a question about
the efficiency of the police and the administration of criminal justice. If
arrested persons are really involved in the commission of an offence, the
investigation should not take so long to find information about the offence.
If a case could be registered against the person, the prosecution will have
ample opportunity to examine him/her in the open court to discover the
fact in the common law-oriented adversary trial system of Bangladesh.
Moreover, there is an acceptable way of investigation under the judicial
inquiry as enshrined in s. 202 of the CrPC. The police usually do not
request remand for a long period, as they can manage to get everything
done within three to seven days. The severity of torture and other inhuman
treatment may result in persons dying or becoming too sick to speak or
sign any confessional statement prepared by the police. In order to avoid
torture, many victims sign confessional
16
statements consciously or without
fully realizing what they are doing.

2.3 The purpose of remand and its defiance

The lawful purpose of remand is explicitly mentioned in the statute.

Section 167 of the CrPC stipulates that if investigation is not completed
within 24 hours from the arrest as set in s. 61, then the concerned police
may request the nearest magistrate to grant remand for further
investigation. Such a request must be premised on the grounds for
believing that the accusation or information is well founded. Remands may
also be ordered under this section if the arrested persons wish to make

16 Kabir, supra note 12.

 TORTURE UNDER REMAND IN BANGLADESH

some representation in relation to the accusation.1 7 However, the practice

of remands frustrates its legitimate objective which is often ignored by the
police and the magistrates alike. It is an open secret that the incumbent
government exploits the police, who work more for the ruling parties than
for the State and its people, and arrest political dissidents and subsequently
request for remands in adherence to orders from the executive.t8

The other purpose is for the police to collect bribes from the victims, who
are mostly innocent and destitute, as shown in a well-publicised recent
example. Kawser, a 14-year old minor who is now deceased, was arrested
on 4 February 2002 without any case against him, when he was playing
cricket. On the following day, his poor father was given two stark options
at the police station: either to pay Taka 20,000 (the local currency) for
Kawser's release or his son would be put under remand. His father failed
to pay off the police, and his son subsequently died on 14 February 2002.19

Remands are ordered by the magistrates who are basically executive

officers having both administrative and judicial functions. The lower
judiciary is greatly integrated with the Executive, a situation introduced by
the British. Magistrates are thus the servants of the Executive, serve only
during the pleasure of the Executive, and have no choice but to carry out
executive directives, a perfect recipe for the miscarriage of justice.

Both the magistracy and the police are known for their endemic corruption
and indiscipline. Studies and surveys carried out by the World Bank and
some NGOs, notably Transparency International, reveal that the law
enforcement agency is the "most corrupt" sector in Bangladesh. 20 The
Amnesty International report of 2001 on Bangladesh disclosed that
criminals were often not punished because of corruption of judges of lower
2 1
courts. The US State Department country report of 2002 on Bangladesh
unequivocally maintains that "the lower judiciary is subject to executive
influence and suffers from corruption".2 2

17 Justice M A Aziz, "Uses and abuses of section 54", The New Nation, 16 May 2002,

online.
18 The Daily Star Dialogue in supra note 13; N Islam, "Police and the prisons of

Bangladesh", The Jugnator,11 June 2002, online; The Janakantha, 13 May 2002, online.
19Odhikar Report, "From Playground to Morgue", Dhaka, 2002.
20 The April 2002 report of TI published in Newsweek, 29 April 2002, online; The Jugantor,
18 June 2002, online; also supra note 2; M Hasan, "Making Anti-Corruption Actions
Work" at http//:www.ti.bangladesh.org, 8 May 2002.
21 Al Report on Bangladesh, on-line index ASA 13/006/2001 of 1 December 2001; The
Daily Star, Dhaka, 16 November 2001 and 6 January 2002, online.
22 The US State Department Report, supra note 1.
 M RAFIQUL AND S MSOLAIMAN

To these international documents, one can add numerous national reports

of corruption by law enforcement agencies reported in national media.
Rampant police corruption is vividly manifested by the High Court
Division of the Supreme Court in its verdict in 2001. It held that the police
had misused the Public Safety Act 2000 to harass innocent people on a
massive scale rendering the law counterproductive, that the chain of
command in the police force had collapsed, was corrupt, and that they no
longer truly worked as a law-enforcing agency but committed serious
offences at their convenience. As a result, unlawful arrest and detention by
the police and custodian rape, torture, violence and death have increased
alarmingly." Most egregious police crimes and human rights abuses go
unpunished. This climate of police impunity and their frequent uses for
political purposes allow such police abuses to continue unabated.
Moreover, the Official Secrets Act, 1923 legally protects corrupt and
abusive government officials from public scrutiny by restricting freedom
of information.

2.4 Lawful venue of custody during remand and its abuse

Section 167(3) authorises competent magistrates to grant the detention of

the arrestee "in the custody of the police", not anywhere else. This legal
requirement of the place of remand may constructively be interpreted to
mean that the arrestee must be kept in the police station and only the police
can have access for interrogation during remand. Hence taking the arrestee
to any place other than the police station is illegal.

The violation of this legal restriction has nevertheless become a regular

phenomenon. Many remand victims are taken to the military cantonment
or other unknown locations for interrogation by the police-army joint cell,
which is notoriously known for its brutality and savagery. Even the most
expansive construction of s. 167(3) cannot stretch the place of remand to
the joint interrogation cell. It is difficult to appreciate how an order of a
magistrate allowing remand to the joint cell can legally be subsumed
within the purview of s. 167(3).

The recent widely publicised remand cases of three high profile persons
may exemplify the extent of violation of remand conditions. Shahriar

23 The judgment of 12 July 2001 on the validity of the Special Power Act, unreported case,
The New Nation, Dhaka, 13 July 2001, online, per M A Aziz J; also M A Islam,
"Governance and Judiciary" in H A Hye ed, Governance: South Asian Perspective,
University Press Ltd, Dhaka, 2000, p. 132.
 TORTURE UNDER REMAND IN BANGLADESH

Kabir, a writer and columnist, was arrested on 22 November 2001 on his

arrival from India. He was not produced before the magistrate until three
days. The police took 24 hours to tell him that he was arrested without any
charge under s. 54. He was kept under the joint interrogation cell and
allowed to see his lawyer after 38 days in remand. 24

Bahauddin Nasim, private secretary to the Opposition Leader of

Parliament, was arrested without any charge on 28 February 2002. The
Chief Metropolitan Magistrate (CMM) of Dhaka granted his remand for
five days under police custody and ordered that he be presented before the
CMM Court after the remand period. He was taken away by intelligence
rather than the police, kept in remand for seven days as opposed to the
court order for five days, and taken to the central jail instead being
presented before the court. In response to his wife's writ petition for
habeas corpus, the HCD of the Supreme Court made an order on 10 March
2002. The Court ordered the remand authority to show cause within two
weeks as to why Bahauddin Nasim should not be brought before the Court
to satisfy itself that he was not subjected to any torture, inhuman and
degrading treatment in violation of his fundamental rights.25

Finally, Dr Mohiuddin Khan Alamgir, a former minister, secretary and

university teacher, was arrested without any charge on 15 March 2002.
The CMM granted his remand only for two days and issued a specific
directive that he must not be tortured and handed over to the joint
interrogation cell. In response to a writ petition, the HCD of the Supreme
Court ordered the Attorney-General to inform the Court of his
whereabouts, and to not hand him over to any other authorities except the
police. In defiance of all these court directives, he was taken to an
unidentified place for seven days under remand26and subjected to inhuman
treatment and torture by unknown masked men.

The fate of ordinary citizens in remand can easily be imagined when one
considers the treatment of high profile members of civil society. The legal
purpose and authorised place for remand are in practice easily violated
without any remedy. The abusive elements of s. 54 and s. 167 were
brought to the attention of the HCD of the Supreme Court, which issued a

24 Supra note 12.

25 Public Amnesty International index ASA 13/003/2002, UA 91/02 Torture, 26 March
2002 and ASA 13/004/2002, news service no. 70 of 19 April 2002.
26 lbid; Z Ahsan, "Arrested people being denied fundamental rights", The Daily Star, 6
April 2002, online; The Daily Star, 17 March 2002, online; The Independent, Dhaka, 18
March 2002, online.
 M RAFIQUL AND SM SOLAIMAN

ruling on 29 November 1998 asking the government to explain why these

two sections would not be declared unconstitutional.27 Unfortunately, the
writ on this issue did not proceed further. In the wake of the continuation
of this illegal practice, and in releasing a person from the custody after six
month of his arrest without any charge, the same Court has recently
cautioned the magistrate courts to be careful about ordering remands
without plausible reasons. 28 The situation is so severe that the Law
Commission has openly conceded the necessity for the reform of s. 54 and
s. 167.29

3. Gross Violation of Human Rights during Remand

3.1 Methods of torture during remand

Some of the various techniques of brutalities inflicted on the detainees by

the law enforcement agencies30 in Bangladesh as described by some recent
victims are mentioned below:

1. Electric shocks to different sensitive body parts (breast nipple, ear

lobe, private parts);
2. Inserting needles and pokers into the victims' fingers and toenails;
3. The victims are supplied with urine to drink when they are thirsty;
4. The victims are not allowed to respond to nature's calls on time;
5. Hot water-filled bottles are pushed through rectum;
6. High-pressured water is poured on the victims, with their hands
tied-up hands and their faces covered to make breathing
impossible;
7. Beatings in such a manner that muscular parts are damaged but no
spot becomes visible. This is done by putting the victims in a large
bag and beating up with a roller on the soft parts of the body, or by
hanging the victims from the ceiling upside down, and then
beating on their feet with a baton; and
8. The victims are compelled to live without any sleep for days.

27 Ibid, Ahsan.
28"High Court's directive to police to be cautious to arrest under s 54", The Janakantha,7
May 2002, online.
29 The BBC Radio interview with the Chair of the Law Commission reported in The Daily

Star, 7 July 2002, online.

30 For a graphic illustration of various violent torture methods, see supra note 3 at pp. 58-

59; and notes 12 and 26, Ahsan.

 TORTURE UNDER REMAND IN BANGLADESH

The law enforcement agencies routinely employ third-degree methods on

the detainees in their bid to secure confessions to be used before the courts.
Sometimes the perpetrators wear masks making it difficult to identify
whether they are hired torturers or members of regular forces, as happened
in the case of Dr Alamgir referred to above. He testified before the court
that he was brutally tortured by three masked men.

One of the latest victims of such cruelty is Mrs Nipu Rani, who was
arrested following the murder of her husband's brother, an internationally
known priest of Buddhism. The priest was slaughtered allegedly by
individuals associated with the ruling party on 21 April 2002 at a place of
worship. 3 1 She was mercilessly beaten by the officer-in-charge of the
police station with electric shocks after having her hands and eyes tied.
Because of this torture, the police took her to doctors before producing her
to the court after two-day's in remand.32

The need for proper identification of the officials involved in dealing with
the detainees is paramount. The Supreme Court of India held in D K Basu
v State of West Bengal (hereafter the Basu Case) that police personnel
dealing with detainees should bear "accurate, visible and clear
identification and name tags with their designations. Their particulars must
be recorded in a register. At the time of arrest all injuries, if any, on the
body of the arrested person must be noted in a diary along with the time,
venue and date of arrest. The 'inspection memo' must be signed by the
arrestee and the police officer, and the latter must give a copy of it to the
former. In explaining custodial crimes, the Court further observed that
such crimes include not only the infliction of body pain, but also the
mental agony which a person undergoes within police lock-up.33 The same
Court in Nilabati Behera v State of Orissa pointed out that prisoners and
detainees are not denuded of their fundamental rights without lawful
restrictions.34

No medical help for the sick: The sick detainees are often denied medical
treatment and life saving drugs during remand. Dr Alamgir, who was a
diabetic and a patient with high blood pressure, was not allowed to take his
prescribed medicine despite repeated requests, which he told the Court
after the expiry of remand. The HCD of the Supreme Court took into
account the deteriorating medical condition of Bahauddin Nasim and
31The Prothom Alo,, Dhaka, 30 April 2002, online.
32 The Janakantha,12 June 2002, online.
13(1997) AIR, 615, 623.
34 (1993) 2 SCC 746.
 M RAFIQUL AND SMSOLAIMAN

directed the remand authority to urgently organise his medical treatment

by forming a medical board within three days, which went unheeded
beyond the specified period.3 5

Recognising the detainees' right to medical treatment, the Supreme Court

of India in the Basu Case held that detainees should have medical
examinations by a trained doctor every 48 hours.36 The deprivation of this
right poses a threat to life, which violates the citizens' human rights
enshrined in chapter 3 of the Constitution ofBangladesh.

Lawyers and family are not allowed to meet detainees: Article 33 (1) of the
Constitution entitles a detainee to consult and be defended by a legal
practitioner of his/her choice. But many detainees are deprived of this
right. More often than not, the law enforcement agencies ignore court
orders to allow lawyers and close relatives to see the detainees, as
evidenced in the remand cases of the three high profile personalities
referred to. Notwithstanding the order of the HCD of the Supreme Court to
allow the lawyer and close relatives of Bahauddin Nasim to visit him, his
lawyer and close relatives were not allowed to see him for up to 12 days.
Even then, affluent and prominent persons under remand, who can afford
to bring their cases before the highest court and secure an order in their
favour, find it exceedingly difficult to enforce court orders and their rights.
The law enforcement agencies routinely violate these court orders with
impunity. The ordinary citizens, who cannot financially afford to obtain
such court orders, silently accept and endure the contravention of their
rights without any redress.

3.2 Involuntary choice of life imprisonment

The Supreme Court of Bangladesh in State v Munir and Another held that
confessional statements can be the sole basis for conviction if the
confession is voluntary and true. 37 Article 35(4) of the Constitution forbids
any compulsion on a detainee to make a confession or to be a witness
against him/herself. The CrPC itself has provided safeguards against
involuntary confessions made by a detainee under coercion (s. 163).
Section 164 allows the detainees to refute the statements or confessions
given to the police during remand, and to give fresh statement to the
magistrate.

35 "Amnesty seeks neutral probe into 'torture' of Nasim and Alamgir", The Daily Star, 2
April 2002, online; also
6 11 see supra notes 25-26 and their accompanying texts.
36 Supra note 33, p. .
" (1996) 1 BLC 345.
 TORTURE UNDER REMAND IN BANGLADESH

A great disparity exists between the sprit of s. 163 and s. 164 and the
practice under s. 167 by granting frequent remands with the knowledge
that they will be treated inhumanly or tortured. Prior to recording any
confession of the person sent on remand, s. 164 requires the magistrate to
make such a person aware of the fact that he/she is not bound to make any
confession and that his/her confession, if voluntarily given, may be used as
evidence against him/her. To make sure this information is communicated,
the magistrate is required to take a note to this effect at the foot of the
record.

Sections 163 and 164 strongly emphasise the wilful and voluntary nature
of confessions, which is conveniently ignored in favour of s. 167. The
helplessness and fearfulness of the victims confronting coercion enforced
under s. 167 become their immediate reality, which outweighs the distant -
and often illusory - benefits of exercising their rights under s. 163 and s.
164. It is all too common that a single person is remanded for more than
once without assigning any reasons whatsoever. The accused in remand
will often be threatened by police before being produced before the
magistrates, and warned that further remand will be sought if he/she
refutes the confession or informs the magistrate about torture or ill-
treatment, and that more severe treatment will be waiting during the next
round of remand. In such a dilemma, many remand victims prefer to
condone their false confessions and even accept imprisonment for life, or
any other term, as preferable to endless life-threatening torture and
inhuman treatment in successive remands. Thus injustice prevails 38over the
justice, and innocent individuals can be imprisoned for long terms.

3.3 No confessions lead to more detention or implication in pending

cases

Successive governments in Bangladesh have displayed their inability to

govern with the help of ordinary laws. They have enacted draconian laws,
such as the 1974 Special Powers Act, the 2000 Public Safety Act and the
2002 Speedy Trial Act, to maintain order. These special power acts have
been drafted vaguely and broadly to encompass wide-ranging arbitrary
actions and discretionary measures of the Executive. These have also given
the police an almost free hand to arrest and detain people at will in the
name of maintaining order, took away the citizens' constitutional rights
38 Reference of some interviews with people who gave false confessions under s. 164 to
save their lives during remand have been mentioned by another victim of remand in supra
note 12.
 M RAFIQUL AND SM SOLAIMAN

protection, and compromised good governance by abandoning the

accountability and transparency of executive acts.

The police can for example arrest a person under s. 54 and first look for
grounds of arrest under the CrPC. Failing this, they can justify the arrest
and preventive detention without trial under various special laws. There
are some occasions where the police have included the detainees in
criminal cases, even though their names were not recorded in the First
Information Report (FIR) filed with the police station. Thereafter they
were charged. The victims of such incidents revealed to the Odhikar
investigators that the police had asked for money from them or their
relatives for their release and that their failure to pay this bribe had kept
them in custody. The police threatened those who could not pay with being
included in pending criminal cases, and beat ruthlessly. 9

3.4 Remedies against custodial torture and possible reforms

The widespread concern for the abusive application of s. 54 and s. 167

should not be seen as the erosion of their useful role in maintaining law
and order in a crime-infested Bangladesh. What is needed is to ensure their
just, cautious and honest application by government functionaries. A
reformative approach towards creating mechanisms for ensuring
transparency and accountability of actions of the authorities concerned is
in order and indeed imperative in order to protect potential innocent
citizens from torture and degrading treatment. The powers of the police to
arrest anybody without warrant and of the magistrates to grant remand
should be derived from, and the exercise of those powers be limited by,
law. It is the primary responsibility of the State to protect its citizens and
their lawful rights. In this sense, the government as the administering
authority of the State should be held liable for the contravention of
citizens' constitutional rights. Reform proposals are purported to attain an
effective balance between the application of s. 54 and s. 167 through the
legal functioning of the law enforcement agencies and the protection of
fundamental rights. In so doing, triangular measures, namely preventive,
punitive and curative, are thought appropriate to maximise the lawful use
of these laws and to minimise their abuses. Finally, the administration of a
fair and effective criminal justice system must be the responsibility of the
government and the Supreme Court of Bangladesh, the lack of which
would erode the public confidence in the law enforcement agencies even
further.

39 Supra note 2.
 TORTURE UNDER REMAND IN BANGLADESH

3.5 Preventive measures

The enforcement of the law in the interest of justice would be the

paramount preventive remedy against any misuse of s. 54 and s. 167.
Potential victims of the abusive use of sections 54 and 167 may be spared
in many instances through the adoption of appropriate preventive
measures. Any reform agenda must grapple with the fact that prevention is
better than cure, which can easily be accomplished by introducing
precision and filling-up gaps in the existing criminal and penal laws of
Bangladesh. Transparency in dealing with the person in remand is an
important procedural aspect of the fair application of the law. A minimum
threshold of objectivity and openness in law enforcement may be adopted
through a number of measures. These may inclusively include:

1. The police may be allowed to arrest on suspicion only after collecting

some relevant material/evidence in support of the arrest without
warrant.
2. The police must be required to effectively notify the relatives of the
arrestee about the time, place of arrest and venue of custody within the
shortest possible time, preferably not exceeding 12 hours after arrest.
3. The competent magistrates may be authorised to release an arrested
suspect should the arresting police fail to file a case within a specified
short period of time, preferably within 48 hours from arrest.
4. The lawyers(s) of the victim's choice must be allowed to meet him/her
as early as possible and stay there during interrogation. During the
remand period, the police must not be allowed to keep the remanded
person under their custody all the time. Instead, interrogation may be
carried out at best the whole day and his/her lawyer(s) should be
allowed to accompany as long as the victim wants and can afford.
5. If hiring a lawyer is not affordable to the victims, legal aid may be
made available to ensure his/her self-defence, or representatives of at
least one human rights organisation of the victim's choice, could be
allowed to be present during interrogation. A survey conducted by
Odhikar from July 2000 to December 2001 reveals that the large
majority of persons arrested under suspicion were from very poor
economic backgrounds. 40 After interrogation, such person should be
sent back to judicial custody.
6. If the detainee appearing before the magistrate expresses his/her
unwillingness to make any confession, the magistrate shall not

40 Supra note 2.
 M RAFIQUL AND SM SOLAIMAN

authorise the detention of such person in police custody and any

confession by the detainee recorded prior to his/her appearance before
the magistrate will bear no evidentiary value.
7. There are significant differences in judicial powers between the
magistrate of first class and the magistrate of third class in terms of
their knowledge, experience and jurisdiction. The detention of a
person is a very serious issue, as it involves the curtailment of a
number of basic rights and many people die during such detention. By
vesting the power of granting remand only in the magistrate of first
class, this may have an easing effect on the incidents of custodial
torture.

There is another problem for the arrested persons in custody. According to

the present arrangements, there is no separate accommodation for
suspected arrestees and under-trial prisoners. The close mixing of innocent
individuals with convicts and criminals is fraught with the possibility of
transmitting criminality from the latter to the former, which may contribute
to an increase in crimes rather than a decrease.

This mixing is equally undesirable from the perspective of human rights

law. Article 10 of the ICCPR draws a clear distinction between accused
and convicted persons. It requires all accused persons to be "segregated
from convicted persons and shall be subject to separate treatment
appropriate to their status as unconvicted persons". At present, there are
about 81 prisons in Bangladesh with the capacity to accommodate about
21,000 prisoners, but these prisons currently hold some 65,000, of which
75 per cent are under trial or without any case, and many have been held
for decades without even knowing the grounds of their suspicious arrests
without warrant. 41 The figures are self-explanatory in describing the
subhuman conditions of the prisons and the governments' apathy towards
the prisoners. Separate cells for judicial custody of suspected accused
persons have been a dire need for long, and which must attract government
priority. Until such a separate accommodation is built, temporary measures
such as erecting partition walls in the existing prisons must at the very
least be urgently considered to segregate the accused from the convicted.

41 Editorial, "Prisons and prisoners", The New Nation, 23 May 2002, online; The Jugantor,

8 July 2002, online. Falu Mia was arrested on suspicion on 27 August 1972 and released on
24 November 1993 after nearly 22 year in jail without any charge. He was awarded a token
compensation on 6 July 2002 after almost nine years of his release till his death on 7 May
2001, The Daily Star, 23 June 2002, online; The Jugantor, 12 July 2002, editorial; other
cases of imprisonment for over ten years without trial and charges may be found in The
Prothom Alo, 3 February 2002, online and (1993) 45 Dhaka Law Report (DLR), 643.
 TORTURE UNDER REMAND IN BANGLADESH

3.6 Punitive measures

Punitive measures are remedial in nature. These remedies impose strict

liability on the law enforcement agencies and magistrates for the abusive
application of s. 54 and s. 167 that abrogates the lawful rights of citizens.

3.7 Personnel of the law enforcement agencies

There are many instances where police personnel are punished through
departmental action for negligence to duty and corruption. But action is
hardly taken for the infringement of fundamental rights through torture
during remand, despite the fact that custodial violence by police is an
offence punishable with imprisonment under s. 29 of the 1861 Police Act
and s. 53 of the 1976 Dhaka Metropolitan Police Ordinance, both of
which are still in force. In recent years, there were only two instances
where police personnel have been punished, for custodial death and for
raping a woman in custody.4 2

In addition to departmental action, the law enforcement personnel

responsible for torture during remand must be brought to justice on every
occasion pursuant to the Penal Code 1860. Commanding officers are
authorised to take actions against their subordinates responsible for torture
under s. 33(b) of the Police Regulations. Being their immediate controlling
authority, the commanding officers should also bear responsibility for the
crimes committed by their subordinates. Some form of departmental
disciplinary action against commanding officers may render them more
vigilant about the acts of their subordinates.

Any external eyewitness, other than the police, for custodial deaths or
torture could not practically be expected. It is unlikely that a police officer
will testify that an arrestee was tortured to death by his/her colleague(s).
Reliance on post-mortem reports in determining the cause of death must be
made with utmost caution. The honesty and impartiality of government
nominated pathological surgeons are often in doubt because of cover-ups
and questionable in respect of forensic uses. For example, Nasim was
inhumanly tortured during police remand which included electric shocks to
his private parts, but the government-chosen medical board reported that
he had only mild injuries.

42 "Sensational Rubel murder case verdict", The New Nation, 18 June 2002, online.
 M RAFIQUL AND S MSOLAIMAN

The credibility of the report was widely challenged by the press and
Amnesty International, and the government was urged to form an
independent and impartial medical body.4 3 Any reform proposal must
therefore embrace the principle of presumed guilt/fault propelled by the
factual situation. There should be conclusive proof that any death in
remand is caused by torture and the police officer, who sought for the
remand and has the custody, must be held liable for the death. In other
words, an act of death by torture is presumed unless proved otherwise, and
the onus of proof should be on the accused police officer(s), who are in a
better position to defend him/herself than the victim or his/her relatives.
Commendable judicial precedents and legislative reform proposals for the
creation of such a liability regime in Bangladesh are not too far to seek.

In Shaikh BaharrulIslam v State, the Supreme Court of Bangladesh held

that it was not possible to prove the cause of death of a person in the police
station, because only those who beat him had special knowledge how he
was beaten to death. 4 The Supreme Court of India in State of M P v
Shyamsunder Trivedi explained the difficulties in securing evidence
against the police officers responsible for resorting to third-degree
methods. The Court argued that these officers are in charge of police
station records which they do not find difficult to manipulate.45 The Indian
Supreme Court also ascertained the extent of liability of such police
officers in NilabatiBehera v State of Orissa. The Court held that there is a
great responsibility on the police or prison authorities to ensure that the
citizen in its custody is not deprived of his/her right to life and liberty.46 In
the Basu case, the Indian Supreme Court firmly concluded that the
offenders must be prosecuted under the existing criminal law and the State
is duty bound to do it. 47 Mr Taylor U in Ex parte Hague observed that
"Imprisonment involves the infringement of a legally protected right and
therefore must be justified. ... it is not a defence for the defendant to say
that he [or she] acted in good faith".48 The Law Commission of India
expressed its view on torture in police custody and the liability of the
police officer involved. In its 1 1 3 th Report, the Commission recommended
that a new section be inserted in the law of evidence that the court may
presume that the injury was caused by the police officer having the

43 See supra note 35.

44 (1991) 43 DLR 336.
45 (1995) 4 SCC 262.
46 Supra note 34 at p. 767.
47 Supra note 33 at p. 628.
48 [1992] 1 AC 123.
 TORTURE UNDER REMAND IN BANGLADESH

custody of that person. The Supreme Court of India solicited

49
the enactment
of this recommendation in the Shyamsunder Trivedi Case.

3.8 Overlooking legal requirements by magistrates in ordering

remands

Magistrates are legally obliged to consider the progress of investigation

before granting remand and to find reasonable grounds in order to send
any person on remand. In reality though, they hardly check the police diary
of the arrested persons nor record the reasons for granting remand.
Whatever may be the reasons for their indolence or negligence to check
the diary and record the reasons, they could be tried under the existing
penal law of Bangladesh. According to s. 219 of the Penal Code 1860,
ordering remand by a magistrate in disregard of the sprit of law or being
influenced by extraneous causes amounts to committing an offence for
which he/she could be punished with imprisonment for a term of up to
seven years, or receive a fine, or both.

Such a magistrate cannot take shelter behind the Judicial Officers'

Protection Act 1850, as this Act accords immunity only from civil
liabilities, not criminal laws. Magistrates are public servants appointed to
perform judicial functions in a manner that ensures just, and prevents
unjust, application of the law. Protection may be applicable for genuine
errors or honest mistakes, but not for wilful offences. Bangladesh is a
peoples' republic and its Constitution has rendered public servants
accountable to the public, who have every right to know how fairly and
transparently the state functionaries work.

3.9 Curative remedies

Curative remedies offer compensation to victims for the injuries and

damages they sustain as a result of the wrongful application of these laws.
It imposes vicarious liability on the State. The Latin maxim salus populi
suprema lex (the safety of the people is the supreme law) lies at the heart
of the liability regime of the State. Article 9(5) of the ICCPR also entitles
individuals to compensation for unlawful arrest or detention. The State
must be "right, just and fair" in interrogating criminal suspects. It must
employ scientific and efficient methods of investigation within the purview
of law. The Constitution of Bangladesh does not contain any explicit
provision for granting monetary compensation for the contravention of

49 Supra note 45.

 M RAFIQUL AND SMSOLAIMAN

legally protected rights. This is not a unique situation but is quite common
in many other constitutions. In these countries, their highest courts,
through judicial activism, have evolved the principle of compensation in
case of violation of personal right to life or liberty.

The Supreme Court of India in the Basu case held (a) that the prosecution
of an offender is an obligation of the State in the case of every crime, (b)
that the victim needs to be compensated due to the breach of public duty
by the State for not protecting the fundamental rights of the citizen, and (c)
that the sovereign immunity of State as a defence is unavailable for the
tortious acts of public servants and for violations of the rights to life and
personal liberty.5 ° In NilabatiBahera v State of Orissa, Anand J observed
that "the Courts and the law are for the people.... The purpose of public
law is not only to civilise public power but also to assure the citizen that
they live under a legal system, which aims to protect their interests and
preserve the rights. ' '51 Pursuant to this principle of compensating the
victims, the Indian Supreme Court has granted compensation for violation
of the citizens' rights on several occasions.5 2

Like India and Bangladesh, the Constitution of Ireland does not contain
any express provision for monetary compensation. But the Irish judiciary
has developed remedies, which include award of damages against both the
individual officials directly responsible and the State in redressing the
injuries sustained as a result of the contravention of fundamental rights.
O'Dalaigh CJ has explained the rationale for such judicial activism in State
(At the prosecution of Quinn) v Ryan:

It was not the intention of the Constitution in guaranteeing the

fundamental rights of the citizen that these rights should be set at
nought or circumvented. The intention was that rights of substance
were being assured to the individual and that the Courts were the
custodians of those rights. ... it follows that no one can with
impunity set these rights at nought or circumvent them, and that

50 Supra note 33 at pp. 624-25.

"' (1993) Cri L J 2912.
52 These cases in the main include: Rudul Sah v State of Bihar (1983) AIR 1983 SC 1086;
Sebastian M Hongrey v Union of India (1984) AIR SC 1026; Bhim Singh v State of Jammu
and Kashmir (1985) 4 SCC 677; Saheli v Commissioner of Police, Delhi (1990) AIR SC
513); Neelabati Behera v State (1993) 2 SCC 746.; M P v Shyamsunder Trivedi (1995) 4
SCC 276.
 TORTURE UNDER REMAND IN BANGLADESH

the Court's powers in this regard are as ample as defence of the

Constitution requires.53

Similarly, in Byrne v Ireland, the Irish court held that: "where the right is
once guaranteed by the State, it is against the State that the remedy must be
sought if there has been a failure to discharge the constitutional obligation
imposed. 5 4

The Privy Council in Maharajv Attorney general of Trinidadand Tobago

argued that though the Constitution of Trinidad and Tobago did not
contain any express provision for monetary compensation, it permitted an
order for monetary compensation for the contravention of basic human
rights and fundamental freedoms. 55 Similarly, the Court of Appeal in New
Zealand in Simps v Attorney General, in dealing with an unlawful search
committed by the police in violation of the New Zealand Bill of Rights Act
1990, held that the effective remedies for the infringement of rights exist in
the absence of any clear constitutional stipulation (per Hardie Bots J).
While all five judges delivered separate
56
judgments, all were unanimous
about the compensation to the victim.

There are ample judicial precedents to assert that the Bangladesh

government, on behalf of the State, is vicariously liable for the wrongs of
its functionaries which contravene the fundamental rights of citizens, and
that the victims are entitled to compensation. Punishments in the form of
disciplinary actions and imprisonment against the responsible police
officers and magistrates have deterrent effects on the future commission of
the crimes. But such punishments provide no remedy whatsoever to the
victims and their dependants by way of alleviating the immense mental
suffering and irreparable physical injuries caused by torture under remand.

The sufferings of defendants are of paramount significance in Bangladesh,

where the victim may well be the sole breadwinner for the whole family.
The amount of compensation will have to be determined on the merit of
each case. There may be two broad categories for compensation: (a)
arrested under s. 54 and released after torture or died in remand, and (b)
extracting confession by coercion for which people are being sentenced.
Since the prohibited acts of torture have been committed in both
categories, their victims and families are entitled to compensation.

" (1965) IR 70.

14(1972) IR 262.
" (1978) 2 All ER 670.
56(1994) NZLR 667.
 M RAFIQUL AND SMSOLAIMAN

3.10 Judicial inquiry into custodial violence

All incidents of violent torture taken place in police custody need to be

investigated by a senior judge not below the rank of a District Judge. A
comparatively high-ranking judicial officer is important for two reasons.
First, both the police and the magistracy are better known in the
community for their corruption and lack of discipline than for their honesty
and credibility. In Bangladesh, the police department usually carries these
investigations, which serves as an opportunity for the police to be violent.
The investigating police officer is very unlikely to find any fault with the
police. Detainees can be tortured to death in police custody, which the
police register as cases of unnatural deaths. This practice precisely
explains why there is hardly any prosecution and conviction of the police
officers responsible for numerous custodial deaths, tortures and rapes.57
And secondly such investigation by any branch of the police or the
magistrate would be a striking negation to the principles of natural justice
in that 'no one can act as a judge of his/her own cause'. An objective and
impartial result of judicial inquiry is mirrored in the verdict on the Rubel
Custodial Murder Case (June 2002) in which 13 police officers and
constables were sentenced for life. The prosecution was based on the
recommendations of the judicial committee headed by a judge of the
Supreme Court. In this case, a police officer was even punished for
causing the disappearance of evidence of the offence and for giving false
information to save his fellow offenders.58

3.11 Role of the Supreme Court of Bangladesh

The paramount duty of any judiciary is to protect the legal rights of every
citizen, which has become an integral part of the judges' oath. With this
duty in mind, the higher judiciary is expected to develop some principles
for providing compensation to the victims of arbitrary arrest and
unjustified torturous remands through judicial activism. Custodial violence
can be reduced, if not eliminated, by a pro-active judiciary, the custodians
of people's rights. The Indian Supreme Court in State of M P v
Shyamsunder Trivedi held that death in police custody is one of the worst
kinds of crimes. It suggested that the judiciary must adopt a realistic rather

57 Of 19,000 custodial deaths, 321 cases were filed against the police and only three of them
reached the trial stage, supra note 3; also S Chowdhury, "So-called safe (?) custody:
criminality marches on", The Daily Star, 1 July 2001, online.
58 See supra note 42; also C C Halder and N Haq, "Rubel murder case: 13 get life term",
The Daily Star, 18 June 2002, online.
 TORTURE UNDER REMAND IN BANGLADESH

than a narrow technical approach in dealing with the cases of custodial

crimes so that the guilty should not escape and the victim "has the
satisfaction that ultimately the majesty of law has prevailed."'5 9

Any form of torture or cruel, inhuman or degrading treatments, whenever

they occur in whatever guise, and coerced confessions fall well within the
inhibition of Articles 32, 33 and 35 of the Constitution of Bangladesh. In
Bangladesh, most of the victims are poor and unable to file writs, a
constitutionally guaranteed right under Article 44, with the HCD of the
Supreme Court. It would be an additional deprivation for a citizen if
financial constraints inhibited him/her from seeking and getting redress
against the contravention of legally protected fundamental rights. In such
circumstances, the HCD of the Supreme Court can adopt a pro-active role
by taking actions suo motu to dispense justice. Judicial precedents exist for
such actions.

In Re Death of Sawinder Singh Grover, the Supreme Court of India took

suo motu notice (from the media) of the death of Sawinder Singh Grover
during his custody with the Directorate of Enforcement. In pursuance of
the due process of law, the Court directed the authority to pay a sum of Rs
0.2 million to the widow of the deceased by way of ex gratia payment. 60
The landmark judgment of the Indian Supreme Court on custodial violence
in the Basu case cited above was an outcome of a letter from a legal aid
organisation addressed to the Chief Justice of India, drawing his attention
to deaths in police custody. The letter was considered as a writ petition.6'

The HCD of the Supreme Court has competence to pass orders, directing
all violators of constitutional rights to pay compensation. Yet the instances
of a court order for monetary compensation are rare in Bangladesh. In Md
Shahanewaz v Bangladesh, the HCD ordered the delinquent police officer
to pay Taka 20,000 (US$ 357 approximately) to the victim as
compensation for false arrest. 62 In The State v Md Moinul Haque and
others (2001), the HCD ruled that the victim of rape should be
compensated by half of the property of the rapist. 63 These decisions seem
to suggest that the Supreme Court of Bangladesh has started to grapple
with the idea of compensating the victim or his/her dependents as a
possible just remedy.

59Supra note 45 at pp. 273-74.

60 (1995) Supp 4 SCC 4500.
61 Supra note 33.
62 (1998) 18 BLD 337.
63 Judgment was delivered on 27-28 May 2001, The Daily Star I July 2001, online.
 MRAFIQUL AND SMSOLAIMAN

No such compensation order is however yet made against the State. The
powers of the HCD of the Supreme Court to compensate the victims of
custodial violence need to be exercised appropriately by recognising the
obligations of the State along with the police and the magistrates. Stories
of custodial violence are frequently and readily available in the media.
NGOs in pursuit of protection and promotion of human rights can take the
initiative by referring those stories to the attention of the Chief Justice,
who can trigger the jurisdiction of the HCD of the Supreme Court. In so
doing though, the real problem is the current subservient status of the
judiciary in Bangladesh. The separation of the judiciary and the magistracy
in particular from the Executive in accordance with the 12-point plan
suggested by the Supreme Court in Secretary Ministry of Finance v
Masdar Hossain64 must be implemented immediately. Otherwise the
Supreme Court will remain cautiously hesitant in playing its crucial
constitutional role of judicial activism against injustices perpetrated on
innocent citizens under remand in the name of law and order.

3.12 Human rights promotion campaigns

In this era of protection and promotion of human rights, good governance

presupposes respect for human rights of the citizens. International human
rights instruments, to which Bangladesh is a party, oblige the government
to create a legal framework protecting its citizens against acts of torture.
Nationally, an autonomous human rights commission with quasi-judicial
power may be set up to oversee and monitor the protection of human rights
in general, and to hear and settle their violations in specific cases. The
victims of police remand may not know their rights nor the State's
obligations in relation to those rights, since most of them are uneducated
and destitute. Citizens need to be made aware of their rights. Human rights
organisations and citizens interested in the protection of human rights
should form various pressure and lobby groups to launch a public
consciousness-raising campaign about the constitutionally guaranteed
rights through easily available and readily accessible publicity means and
educational programs. This would help remind both the general public and
the law enforcement agencies of the due treatment all are entitled to during
police custody. Readily available free legal aid may be the only option to
protect the powerless and voiceless poor, who are invariably the victims of
police remand.

' (2000) 52 DLR (AD) 82.

 TORTURE UNDER REMAND IN BANGLADESH

Internationally, there are individual complaint procedures, notably the

1503 Procedures of the UN Human Rights Commission and the
International Human Rights Committee set up under the Optional Protocol
to the 1966 ICCPR. Pressures may be brought to bear on the Bangladesh
government to ratify these procedures in order to enable the remand
victims to invoke international remedies as 65 a last resort to restore and
redress the infringement of their human rights.

4. Conclusion

In Bangladesh, the worst atrocities often take place under police remand.
None of its laws admits involuntary confession in judicial proceedings. Yet
law enforcement agencies have been arbitrarily arresting thousands of
innocent citizens for decades, in most cases either for political end or for
getting bribes. The empowering magistrates have been ordering remands
indiscriminately for extracting confessions, where violence and torture are
endemic. In such a situation both the police and the lower judiciary are on
the verge of their doom by losing public confidence. The higher judiciary
is more cautiously restrained than pro-active as a custodian of the citizens'
constitutional guarantees. Incumbent governments are too preoccupied
with the well-being of their members and supporters than that of the
governed. They treat their political opponents like personal enemies and
utilise police powers as a handy tool to keep political opponents under
control. The situation has led to an unholy alliance between the police and
the politicians in power, which is mutually beneficial for them both in that
the former can obtain personal gains, favours and privileges, whilst the
latter can advance their political agenda. Thus police violence has become
a pervasive feature of politics in Bangladesh, in which nobody is
seemingly accountable to anybody for anything pertaining to custodial
violence.

Part of the problem seems to be the performance of executive functions by

parts of the judiciary. There is also the unlimited exercise of police power
for executive functions, which remains intrinsically inconsistent with the
rule of law and due process. The Executive must understand the ethos and
spirit of good governance propelled by the constitutional rule of law. It
must learn to live and operate within the bounds of law. It is incumbent
upon the Executive to act together with Parliament and the judiciary in
working out legal safeguards against the self-serving and sectarian use of

65 Bangladesh ratified the ICCPR on 7 September 2000 and the Torture Convention on 5
October 2000, but has not yet ratified the Optional Protocol to the ICCPR and the
individual complaint system under the 1503 Procedures.
 MRAFIQUL AND SMSOLAIMAN 27

police powers. It would be rewarding for the civil society of Bangladesh,

and for those innocent victims who despair in police remand, if the
Executive government reflected on its human rights record. The citizens of
Bangladesh cannot have a dignified human existence unless the ongoing
barbarous acts of torture under police remand are subject to the law, and
their perpetrators are brought to justice.