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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

RIGHT AGAINST INHUMAN TREATMENT UPON


BANGLADESH PERSPECTIVE: LAWS AND
PRECEDENTS BASED STUDY

S. M. Shahidullah Mamun
Apprentice Lawyer,
District Judge Court, Lakshmipur,
LL.B (Hon‟s), LL.M,
Britannia University, Cumilla, Bangladesh

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ABSTRACT

The aim of this paper is to focus the present scenario of torture with statistic
comparing with India, United State and Bangladesh. Specially this paper emphasizes
on Bangladesh perspective where our supreme laws, national other laws and
international laws protect the right to prohibition from torture. This paper also
emphasizes upon the recent judicial precedents upon prohibition of torture where
High Court Division of Supreme Court of Bangladesh laid down a set of fifteen (15)
guidelines with regard to exercise of power of arrest and remand consecutively under
section 54 and 161, 167 of the CrPc. Besides these It also critically analysis the
section 3 of the SPA and 316 of PRB where this sections provides the Police and LEA
excess power which is mostly abused by them. This paper critically analysis these
sections as well as article 35(5) of our Constitution. This paper briefly focuses the
reasons of causing torture heavily by the LEA and also recommends the ways of how
to reduce the torture into minimum quote.

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LIST OF ABBREVIATION

 AD = Appellate Division
 BGB = Boarder Guard Bangladesh
 BC = Before Christ
 CAT = Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
 CPPCG = Convention on the Prevention and Punishment of the Crime of
Genocide
 CEDAW = Convention on the Elimination of All Forms of Discrimination
against Women
 CRC = Convention on the Rights of the Child
 CRPC = Code of Criminal Procedure, 1898
 HCD = High Court Division
 ICESCR = International Covenant on Civil and Political Rights
 ICCPR = International Covenant on Economic, Social and Cultural
 LEA = Law Enforcement Agency
 NSI = National Security Agency
 PRB = Police Regulation Bengal, 1943
 RAB = Rapid Action Battalion
 SC = Supreme Court
 UDHR = Universal Declaration of Human Rights 1948
Rights

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TABLE OF CONTENTS

 ABSTRACT…………………………………………………………………….…...vi
 LIST OF ABBREVIATION……………………………………………………….vii
 TABLE OF CONTENTS……………………………………………………….....viii
 Contains

CHAPTER ONE: INTRODUCTION………………………………………………..07--20

1.1 Introduction ………………………………………………………………………...07


1.2 Statement of the Research…………………………………………………………..08
1.3 Research Objectives………………………………………………………………...09
1.4 Research Hypothesis………………………………………………………………..10
1.5 Significance of the Research………………………………………………………..10
1.6 Scope of the Research………………………………………………………………10
1.7 Limitation of the Research………………………………………………………….11
1.8 Literature Review…………………………………………………………………...13
1.9 Research Methodology……………………………………………………………...18
1.10 Data Analysis……………………………………………………………………….19
1.11 Chapterization……………………………………………………………………....19
1.12 Conclusion…………………………………………………………………………20

CHAPTER TWO: HISTORICAL BACKGROUND REGARDING RIGHT AGAINST

INHUMAN TREATMNET AND HUMAN RIGHT…………….21--18


2.1 Introduction…………………………………………………………………………21
2.2 A Brief Historical Development of Human Right………………………………….21
2.2.1 Ancient Period………………………………………………………………………22
2.2.2 Islamic Period………………………………………………………….…………....23
2.2.3 Middle Period……………………………………………………………….………23
2.2.4 Modern Period……………………………………………………………………….24
2.3 Conclusion……………………………………………………………………….....24

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CHAPTER THREE: EXISTING LAWS AND REGULATIONS REGARDING

INHUMAN TREATMENT ……………………………………25-32


3.1 Introduction……………………………………………………………….................25
3.2 National Laws and Regulations: Domestic………………………………………….25
3.2.1 The Constitution of People‟s Republic of Bangladesh……………………………...26
3.2.2 Penal Code, 1860…………………………………………………………................27
3.2.3 Prohibition of Torture and Death in Custody, 2013………………………………...28
3.2.4 Prevention of Oppression against Women and Children Act, 2000………………...29
3.2.5 Police Act of 1861………………………………………………………….………..30
3.2.6 The Acid Offence Control Act, 2002…………………………………….………….30
3.3 International Convention on Prohibition of Torture………………………………...31
3.4 Constitutional Based Comparative Study on Prohibition of Torture………….…….32

CHAPTER FOUR: JUDICIAL DEVELOPMENT ON PROHIBITION OF TORTURE

4.1 Brief Discussion on Judicial Development …………………………………………33


4.1.1 Arrest…………………………………………………………………………….…..34
4.1.2 Detention………………………………………………………………………..…...34
4.1.3 Personnel Livelihood……………………………………………………………......35
4.1.4 Remand………………………………………………………………………….…..35
4.1.5 Torture by LEA …………………………………………………………………......35
4.1.6 Death for Negligence………………………………………………………………..35
4.1.7 Natural Justice……………………………………………………………………….36
4.1.8 Prohibition of Ragging………………………………………………………………36
4.1.9 Property Acquisition…………………………………………………………………36

CHAPTER FIVE: ENFORCEMENT OF RIGHT TO PROTECTION

FROM TORTURE; DISAPPEARANCE…………………………..


5.1 Present Scenario in Bangladesh Perspective………………………………………..37
5.2 Ethnic Cleansing in Myanmar; Rohingya Community………………………….….40
5.3 Statistics on Torture………………………………………………………………..47

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5.4 Reasons for not Enforcing Right to Protection from Torture…………………........48


5.5 Necessary Steps to Enforce Right to Protection from Torture…………………..…49

CHAPTER SIX: CONCLUSION…………………………………………………….50--58

6.1 Introduction………………………………………………………………….……..50
6.2 Findings…………………………………………………………………….………52
6.3 Achievement of the Research Objective………………………………………..…..53
6.4 Solution of Research Questions…………………………………………….............53
6.5 Conclusion…………………………………………………………………….……58

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Chapter One: Introduction

1.1 Introduction

Inhuman treatment and torture is a common issue in our country. It is happening not only in
Bangladesh but also each and every corner of the world. Sometimes it remains clam and
sometimes it growths rapidly at a high level of tolerance. At present day it turns into a social
curse for the civilized. To prevent such a curse from society, country and world various
qualitative and quantative national and international laws are formed. In spite of having
national and international humanitarian law (IHL) the inhuman treatment and torture is
happening day by day because of its no proper implementation in the world wide. The main
reason of not implementation of the laws against inhuman treatment and torture is political
influence. Most of the facts pertaining to the torture are done due to acquiring political
gratification. So, political hand plays a very vital role to cause ill-treatment, inhuman
treatment and torture. Whereas the supreme law of Bangladesh says “No person shall be
subjected to torture or to cruel, inhuman, or degrading punishment or treatment”.1 Besides
these, amongst the international humanitarian laws Bangladesh rectified the following
conventions to protect torture and inhuman treatment.
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (5 October 1998)
 Convention on the Prevention and Punishment of the Crime of Genocide (5 October
1998)
 International Covention on Economic and Social Rights (5 October 1998)
 International Convention on the Elimination of All Forms of Racial Discrimination (11
June 1979)
 Convention on the Elimination of All Forms of Discrimination against Women (6
November 1984)
 Convention on the Rights of the Child (3 August 1990)
 Covenant on Civil and Political Rights (6 September 2000).
 Four Geneva Conventions of 1949 (1971) and Additional Protocol I and II to the Geneva
Conventions (8 September 1980)

1
Section 35(5), The Constitution of The People‟s Republic of Bangladesh.
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1.2 Statement of the Research

The theses paper includes the cases and sectors in which inhuman treatment or torture is
occurred and specially by whom such torture or inhuman treatment is done. In real sense the
torture or inhuman treatment is done by the law enforcement agencies.2 Law enforcement
agencies refer to the police, Army, RAB, BGB, Cost Guard and security agencies such as
NSI.3 Most of the cases, the torture is occurred in the police custody, jail, cantonment and
unknown location due to interrogation.4 And such interrogation is totally violation of law.5
Section 25[6] of Evidence Act don‟t recognize the confession made by an accused to the
police which may be under section 161 of the CRPC. And the confession under this section is
not admissible.7 Even to extort evidence from accused person the police officer can‟t confine
him.8
Reported methods of torture include slapping and kicking with sticks, iron rods, rifle butts,
and/or bottles with hot water; hanging by the hands; pushing needles under nails; crushing
fingers with pliers; rape; electric shocks; and “water treatment‟‟ which consists of fixing hose
pipes into each nostril and turning the taps on full force.9 Mental torture has also been
reported, including verbal abuse and playing audio tapes to detainees with the voices of
persons crying in pain.10 Due to some lacking of our existing laws the Law enforcement
agencies get privilege to make torture. Section 54[11], 157[12] of CRPC & 316[13] of PRB
empowers police to arrest without warrant on reasonable suspicion and section 27[14] of

2
Odhikar, 2017. Torture By Law Enforcement Agencies [online] [viewed on 15 November 2017]. Available at
http://odhikar.org/statistics/torture-by-law-enforement-agencies/
3
ibid
4
ibid
5
Section 25, The Evidence Act 1872.
6
Section 25 of the Evidence Act 1872 provides No confession made to a police-officer shall be proved as
against a person accused of any offence.
7
35 DLR 303
8
PLD 1959 Lahor 665
9
See Reports of the Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment,
UN Doc. E/CN.4/2000/9,2 February 2000, paras. 116-126 and UN Doc. E/CN.4/2002/76/Add.1, 14 March
2002, paras.117 et seq.; BRCT, Annual Report 2002, supra, pp.9 et seq.; AI, Bangladesh: Torture and Impunity,
supra, pp. 2 et seq. and Amnesty International, Bangladesh: Urgent need for legal and other reforms to protect
human rights, AI Index: ASA 13/012/2003, May 2003, pp.5 et seq.
10
Report of the Special Rapporteur on torture and cruel, inhuman or degrading treatment or punishment, UN
Doc.E/CN.4/2002/76/Add.1, 14 March 2002, para.131 and AI, Bangladesh: Torture and Impunity, supra, p.11.
11
See, section 54 of the Code of Criminal Procedure 1898.
12
See, section 157 of the Code of Criminal Procedure 1898.
13
See, section 316 of the Police Regulation, Bengal.
14
Section 27 of the Evidence Act, 1872 provides when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may
be proved.
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evidence Act also gives priority to accept statement made by the accused in police custody. If
such section can be amended qualitatively using golden rule or literal rule then the Agency‟s
power to arrest can be reduced and it is very necessary to amend the section that will reduce
the torture and inhuman treatment from our society. At present scenario RAB is committing
gross torture and inhuman treatment.15 In 2011, 23 March a team of Rapid Action Batalion-8
(RAB-8) made a gross torture upon a 16 years-old boy namely Limon as a terrorist.16 In
2010, 24 January RAB arrested Mohammad Mohiuddin Arif and he died after suffering from
further injuries.17 In 2010, 12 May Rabiul Islam Khokon was grossly tortured during remand
by the metal rods, burning cigarettes.18 On the other hand, our existing laws also mention the
way to get remedies against violation of the right to protection against torture and inhuman
treatment. Article 44[19] & 102[20] of our constitution ensures remedies. Beside this. The High
[21]
court can suo motu under section of the CRPC file write petition against any violation of
fundamental rights.

1.3 Research Objectives

 To investigate the laws and regulations regarding protection from inhuman treatment.
 To find out the problems and drawbacks of the laws adapted for protecting human
rights and fundamental rights.
 To show the recommendation of protecting human rights from inhuman treatment and
torture.
 To outline the application of judicial pronouncement and case decision.
 To analysis the international laws, convention and national laws to prevent inhuman
treatment and torture form society.

15
see report of the Odhikar 2004-2017.
16
The Daily Star, 11 April, 2011 [http://www.thedailystar.net/news-detail-181278, Last visited 16 November,
2017]
17
The Daily Star, 5 February, 2010 [http://www.thedailystar.net/news-detail-124943, Last visited 16
November, 2017]
18
National Human Rights Commission, Bangladesh, 2013. The Convention Against Torture And Other Cruel,
Inhuman or Degrading Treatment or Punishment: A Study on Bangladesh Compliance [online], 44, [Viewed on
18 October 2017]. Available at
http://nhrc.portal.gov.bd/sites/default/files/files/nhrc.portal.gov.bd/page/348ec5eb_22f8_4754_bb62_6a0d15ba1
513/Study%20report%20CAT.pdf.
19
Article 44 of the Constitution of People‟s Republic of Bangladesh provides enforcement of fundamental right.
20
Article 102 of the Constitution of People‟s Republic of Bangladesh provides powers of high court division to
issue certain orders and directions, etc.
21
See, section 439 of the Code of Criminal Procedure, 1898.
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1.4 Research Questions/Hypotheses

 Whether the existing laws and regulations regarding right to protection from inhuman
treatment are effective.
 Are there any loopholes or drawbacks of the rights against the prohibition of inhuman
treatment and torture which is provided under Art. 35 (5) of the Constitution of
Bangladesh.
 Whether this is properly ensured in society or state by the judicial body.
 What are the judicial developments?

1.5 Significance/Rationality of the Research

This research will play a vital role to show the present scenario of causing inhuman treatment
and how to improve from such scenario in case of our country. Besides this my data analysis
which is presented in this theses paper is absolute and justifiable. So that it will be very much
helpful to take recommendation of amending or upgrading the laws and regulations
pertaining prohibition of inhuman treatment and torture.

1.6 Scope of the Research

The dissertation paper emphasizes the laws and judicial precedence pertaining to torture and
inhuman treatment. There have many national and international humanitarian laws to reduce
ill-treatment and torture from society. In national laws Article 33 & 35 (5) of our constitution
strictly prohibits to make torture. Section 25 of the evidence Act and 161 of the CRPC don‟t
recognize any statement made to police custody. Section 440 & 480 of the penal code also
prohibits confining or arresting someone wrongfully due to interrogation. In International
Humanitarian Laws- Article 32 of Geneva Convention 1949 prohibits causing corporal
punishment, torture, etc. Article 5 of Universal Declaration of Human Rights, 1948, Article 7
of International Convention on Civil and Political Rights, 1966, Article 3 of European
Convention of Human Rights, 1950, Article 5 (2) of American Convention of Human Rights,
Article 37 (a) & Article 39 of Convention on the Rights of the Child, 1989, Article 1-3 & 13-
16 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984, Article 39 of the Charter of United Nation Declaration and Article 12 of

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The Elimination of All Forms of Racial Discrimination, 1969 stands strongly against the
torture, ill-treatment, inhuman treatment, and degrading punishment. To reduce this curse
from this society judicial decision also plays a vital role and upgrades the standards
pertaining to the issue. A leading namely BLAST vs. BD clears the term “reasonable
suspicion”. Generally the enforcement agencies abuses the terms and following this terms
they are used to cause any different types of brutal torture and inhuman treatment. But now,
there is no vagueness under section 54.Now the police officers must write the reason of arrest
and mustn‟t arrest any offender until he meet with his family member on the matter of arrest
and must have facility to choose advocate.

1.7 Limitation of the Research

This research paper contains a critical study on existing laws including national and
international laws and convention as well as judicial precedent on prohibition of torture,
inhuman treatment or ill-treatment and degrading punishment which is recognized as
fundamental right in our constitution under Article 35(5). To conduct this research it collects
lots of data and information from famous books, newspapers, stander article and internet law
based journal but information of this dissertation papers is not sufficient. Because of time
limitation which is fixed by the supervisor to complete this dissertation paper. This research
paper is made for the fulfillment of the requirements of LL.B Degree.

1.8 Literature Review

This theses paper studies on lots of literature based on various books, journal article and
newspapers. Amongst them it emphasizes upon the famous writer‟s books namely Islam
(2012), Chowdhury (2010), Rahman (2011), Halim (2012), Huda (1997), Khan (2010),
Munin (1975) of our country. In needed, this paper have collected data form various online
based websites Weissbrodt (2011), Rahman (2017). This research paper also shows in a nut
shell the critical analysis of those article and statement written or published by the famous
author like as Weissbrodt (2011), Rahman (2017) regarding the topic as under;

Islam (2012) describes on the USA constitution regarding ill-treatment where the 8th
amendment of American Constitution prohibits the ill-treatment or torture or degrading

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punishment. He also elaborates the insufficient of administration system, investigation


system, delay investigation & delay disposal of case. Besides this he explains on the death
punishment as an infringement of the constitution of USA. In Bangladesh, Collecting
information by extortion or segregation is treated as a inhuman and ill-treatment and it is
prohibited.22

Chowdhury (2010) shows on custodial torture is violative of right against self-incrimination


and arrested person cannot be bound to answer self incriminatory questions. He explains on
abuses of police‟s power under section 54 of the Code of Criminal Procedure where the
police instead of being the protector of law, become engineer of terror and panic putting
people into fear. (Niranjan Singh v. Prabhakar Rajaram AIR 1980 SC 785). He discusses on
167 of the CrPC which empowers police to apply remand. He paves the way of not to grant
any statement delivered before police officer showing the reference of section 25, Evidence
Act 1872 and section 163 of the Code of Criminal Procedure. He discuss the
recommendation which is provided by a leading case namely “BLAST v Bangladesh 55 DLR
363”.23

Rahman (2011) outlines on Article 35(4, 5) prohibition of inhuman treatment, torture and
cruel. In this regard he just elaborates Article 35(5) providing a case reference namely “
Habia Mahmud Vs. Bangladesh, 45 DLR 374. “It is needless to add, that in case of malafide
the matter of non-disclosure will be justifiable one.” Besides these he discuss on Double
Jeopardy and Ex-post Facto law.24

Halim (2012) focuses on fundamental rights in his book. But he didn‟t briefly explain on
Article 35(5) of the Constitution of Bangladesh. He just shows the definition of Fundamental
Right, Sources of Fundamental Rights, distinction between Human rights and fundamental
rights, enforcement of fundamental rights and remedies in case of violation of fundamental
rights. Besides this, He also shows the statute condition of United Kingdom and United State
of America. In this regard he discusses in Britain there is no Bill of Rights; no formal

22
Islam, Mahmudul, 2012. Constitutional law of Bangladesh, Mullick Brothers, Dhaka, Chapter 2, Page. 286-307.

23
Chowdhury, M. Jashim Ali. 2010. An Introduction to the Constitutional Law of Bangladesh, Northern
University Bangladesh, Dhaka. Chapter 13, Page 201-205.
24
Rahman, Justice Latifur, 2011. The Constitution of the Peoples Republic of Bangladesh with Comments and
Case Law, Mullick Brothers, Dhaka., Part III, Page No. 67-70.

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declaration of any fundamental right has ever been made. He also outlines that No democracy
can function successfully in the absence of some basic freedoms. Except above mention point
he doesn‟t discuss the Article separately.25

Huda (1997) states in on inhuman treatment and torture. He discusses Article 35 briefly, each
and every sub-Article /para of 35 is discussed. He focuses on ex-post facto law giving
referred with CRPC and exception of protection Article 35. In respect of prohibition of
inhuman treatment, he tries to understand that self incrimination is against humanitarian
treatment providing reference of section 132 of Evidence Act. He also paves the way of
arising violation of human rights in case of a witness oneself or compelled to be a witness for
another. He also explains that, whipping, solitary confinement, barbarous and hanging is
inhuman treatment. Besides these, He proves the police's activities like as police atrocities
where third degree and handcuffing is prima facie inhuman and blushes arbitrary. 26

Khan (2010) states on circumstance of torture and inhuman treatment during custody and
interrogation by the RAB in Bangladesh perspective. Actually He would like to show how
the torture and inhuman treatment is occurred by the Law enforcement agency.27

Munin (1975) shows the observation of American constitution on death sentence and
electrical shocks which are considered as on kinds of torture and inhuman treatment.28

The writer David Weissbrodt & Cheryl Heilman describe on this research paper about
prohibition of inhuman treatment upon the people providing various legal basis. And also
explains that the use of evidence obtained through torture, cruel and inhuman treatment is
prohibited and in this regards he provides many legal basis thus- ICT, UDHR, ICCPR, CAT,
AD, ECPHRFF, African CHPR, ICT, Customary International Law, and jus cogens. Besides
these he write on definition, elements, nature of private detention, nature of harm, purpose

25
Halim, Md. Abdul. 2012. Constitution, Constitutional Law and Politics: Bangladesh Perspective. Dhaka. CCB
Foundation, Chapter VI, Page 98.
26
Huda, A.K.M Shamsul, 1997, The Constitutional of Bangladesh; Volume- 1. Istiaq Hasan, Chittagong.
Volume 1, Book III, Part III, Page 468-482.
27
Khan, Arif, 2010, International Law and Human Right; Bangladesh Perspective, CC Foundation. Chapter 3,
Page 352-353.
28
Munin, F.K.M.A, 1975, Right of the Citizen under the Constitution and Law, AFM Shamsul Bar. Chapter III,
Page 78.

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and intent of inhuman treatment adding also the responsibility of individual and public
officer.29

The writer Rahman reflects in this research paper on the violation of human rights in the
hands of law-enforcers and outlines some recommendation to prevent/reduce it. This research
paper also reflects the abuse of power and arbitrary arrest by law-enforcers and outlines the
provisions under which the powers are applied. First Chapter contains the reasons and nature
of arbitrary arrest and remand and second one is on effective remedies of arbitrary arrest and
freedom from torture and custodial violence. Third one highlights the whole discussion on it
and finally it contains the data-base information on arrest, remand, torture and custodial
violence.30

Dan O’Donnell and Norberto liwski explain on the impacts of torture on children
addressing legal framework, medical and psychological cases. He adds there part on inhuman
treatment namely .Part one- Legal Frame work, part two- Medical impacts and part three-
Psychological impacts. He also added the three characteristics of torture stating that--- He
also has tried to make understand that the state have obligation regarding torture and inhuman
to punish tortures (whoever he is).31

The writer Yuyal in this Article reviews the desirability and scope and limitation of absolute
prohibition against torture and inhuman treatment under International Human Right Law. He
shows the theoretical explanation of the absolute international law prohibition against torture
and inhuman treatment. His intention is not to revisit most internationally accepted definition
of torture and inhuman treatment but instead he asks a different of prohibited ill-treatment

29
Weissbrodt, David. Defining Torture and Cruel, Inhuman, and Degrading Treatment. University of Minnesota
Law School, 2011 {viewed on 18 October, 2017}, Available from

http://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1370&context=faculty_articles
30
Rahman, Taslimur, Prevention of Arbitrary Arrest and Freedom from Torture and Custodial Violence,
BLAST, [viewed on 26 October 2017] available from http://bdlawdigest.org/wp-
content/uploads/2015/06/arbitrary-arrest.pdf
31
Dan O‟Donnell and Norberto Liwski, CHILD VICTIMS OF TORTURE AND CRUEL, INHUMAN OR
EGRADING TREATMENT, IWP 2010-11 , UNICEF Innocenti Research Centre, {viewed on 18 October,
2017}, Available from https://www.unicef-irc.org/publications/pdf/iwp_2010_11.pdf

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and inhuman treatment defines by Article 1 of CAT Convention and less severs form of cruel
inhuman treatment by Article 7 of ICCPR.32

The writer Steven Greer explains the core assumption of international Human Rights Law
against torture and inhuman treatment. He also explains the difference between moral and
legal justification for torturing terrost providing case study namely- Jakob Von Metzler vs
Magnus Gafger (The Corut) and Gifgen Vs Genmary (Grand Chamber). Torturing terrors
violates the Article 3, 6 of EcHR. In this Cases, Prohibition of torturing and inhuman
treatment is absolute has been shown. He added that there is no exception to break the
prohibition. Such as; if a police officer torture along with inhuman treatment to an accused
then the police are to be punished maximum five year prison sentence under Article 34 to the
dynamics of torture, 2000.33

Dr Elina Steinerte provides the historical background of prohibition and punishment of


inhuman treatment. It shows that the prohibition has come from Geneva Convention of 1949.
Besides this it shows the definition, key international instrument, and key legal obligation of
state to enact legislation on it. Here he adds state should punish torturers by judiciary process
through enacting criminal sanction and not to use information obtained from torture. And if
causes torture then what will be the consequence is discussed. He refers some legal basis to
impose compensation as a remedy of torture such as Article 14 of CAT and also shows
recommendation to prevent inhuman treatment like – Monitoring system by visiting prison.34

The Writer Johanne Arnoldi Zilmer tries to make understand that the death penalty is one
kind of cruel and inhuman treatment. On this view he draws many law references by

32
Yuyal, Shany, The Prohibition Against Torture and Cruel, Inhuman, and Degrading Treatment and
Punishment: Can the Absolute Be Relativized Under Existing International Law, Catholic University Law
Review, Volume 56 ,Issue 3 Spring 2007 Article 5, {viewed on 18 October, 2017}, Available from
http://scholarship.law.edu/cgi/viewcontent.cgi?article=1126&context=lawreview
33
Steven Greer, Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really „Absolute‟
in International Human Rights Law? Human Rights Law Review Advance Access published January 30, 2015,
{viewed on 18 October, 2017}, Available from http://www.corteidh.or.cr/tablas/r33346%20%282%29.pdf
34
Dr Elina Steinerte, The Role of Independent Monitoring in Prevention of Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, March 2010, University of Bristol‟s Human Rights ICRC, {viewed on
18 October, 2017}, Available from

http://www.bristol.ac.uk/media-library/sites/law/migrated/documents/prioccasionalpaper.pdf

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international laws and customs. Such as Back in 1996 it is stated that there is an increasing
willingness by judges to limit or totally abolish the death penalty by relaying on what is a
universal rule of human right laws prohibiting cruel punish or torture. He also provides many
case references against death penalty, such as- United State Vs Burns, 2001, SCR 283 P 289
(Con). “The death penalty constitutes inhuman treatment.” Besides these, he also shows in his
research paper on different countries decision regarding death penalty and that is- Canada,
Kyrgyzstan, Mongolia, Turkmenistan an Uzbekistan are states parties to the 2nd optional
protocol to the ICCPR aiming at the abolition of the death penalty.35

The Writer Haque focuses on the arbitrary exercise of power by the state law enforcing
force as a result the use of torture, inhuman and degrading treatment is occurring day by day.
And most of these abuse incidents remain unaddressed. He also focuses on the remedy of
such inhuman treatment, where the remedy is very little. So, the victims don‟t report to
concerned authority. He outlines the way of arbitrary exercise of power which cause inhuman
treatment, like as Special Power Act, 1974. Besides these, He mentions the legal basis of
protecting against inhuman treatment providing international conventional reference,
Bangladesh Constitution and Judicial Pronouncement and also explains the judicial remedy
against preventive detention which cause inhuman treatment, like as; Write of Habeas
Corpus, Suo Moto Rule.36

In this Article the writer The Redress Trust shows the situation of torture-survivors in
Bangladesh. In this Case, what laws are followed by Bangladesh to prohibit the ill-treatment
and torture to the peoples. Besides this, it (Report) focuses the recommendation of
prohibiting ill-treatment and torture from society and in this case, what will be the role of
civil society and the judiciary. It also adds some case study on the basis of BLAS &
REDRESS which paves the way for reparation awards in future torture cases.

35
Johanne Arnoldi Zilmer, THE DEATH PENALTY AND THE PROHIBITION OF TORTURE AND OTHER
FORMS OF CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, Human Rights Law
Clinic Papers 2016, May 2016, {viewed on 18 October, 2017}, Available from
https://www.sussex.ac.uk/webteam/gateway/file.php?name=arnoldizilmer-deathpenaltyandtorture-final.pdf&site
36
Haque, Mr. S.M Saiful, Constitutional Safeguard against Arbitrary Actions in Bangladesh; An overview,
[viewed on 26 October 2017] available from http://www.lawjournalbd.com/2016/05/constitutional-safeguards-
against-arbitrary-actions-in-bangladesh-an-overview/

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

The writer Webster describes the meaning & scope of application of the right not to be
subjected to degrading treatment, distinct from of harm. ( Article 3 of ECHR).37

Rumana Khatun outlines the sustainable development to ensure fair and equitable treatment
in arbitral practice. He analyzed some arbitral awards to examine how the current investment
tribunals have interpreted the fair and equitable treatment. The author/writer shows the
present good side of protection of arbitral practice and inhuman treatment.38

ICRC reported on inhuman treatment which is published by the General assembly. Here the
special repporteur draws the attention of the General assembly to the situation of person who
are subjected to neglect, severe forms of restraint and seclusion as well as physical, mental,
and sexual violence. To collect data, the reppotuers visited various countries like as,
Australia, Kenya, Tibetan as China, Zimbabwe and many others. Besides these, the reporter
delivered open speech the people to fight against torture and inhuman treatment. They
(Repporteur) also explores the influence of international norms relating to violence against
women on the definition of torture. Some of Country ensures protection to the citizen as far
as possible the special Repporteur examines the use of solitary confinement which has a
negative impact on mental health. He recommends that solitary confinement should be used
for the shortest period of time.39

The writer wants to highlight the definition and scope of preventive detention, its nature and
our constitutional safeguards for it. Besides these, he also highlights why preventive
detention is a necessary evil for our country because of violation of protection inhuman

37
Webster, Elaine, The University of Edinburgh, 2009, Exploring the prohibition of degrading treatment within
Article 3 of the European Convention on Human Rights,{viewed on 18 October, 2017}, Available from
https://www.era.lib.ed.ac.uk/bitstream/handle/1842/4062/Webster2010.pdf?sequence=1
38
Khatun, Rumana, Fir and Equitable Treatment (FET) Standard in Arbitral Practice: Sustainable Development
in Context. [Viewed on 26 October 2017] available from http://www.biliabd.org/article%20law/Vol-
16/Rumana%20Islam.pdf
39
ICRC (Committee International Geneva), Prohibition and punishment of torture and other forms of ill-
treatment, {viewed on 18 October, 2017}, Available from
https://www.google.com/search?q=Right+against+inhuman+treatment+research+paper+pdf&ei=aVTnWaeRJY
a-0gSRjK2gBg&start=10&sa=N&biw=1280&bih=864

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

treatment and torture. He outlines the recommendation of it. He shows how the inhuman
treatment ad torture is occurring by using Special Power Act.40

The writer Reidy shows in this research paper, on obligation of judicial authorities in
investigation of torture or ill-treatment and draws an attention to the prohibited behavior such
as in the imposition of illegal punishment is not occurred. He also emphasizes on
investigation for making fair judgment/punishment. In these cases, he suggests to alter or add
necessary provision in our legal system. He also reflects the doctrine „beyond reasonable
doubt‟ in which cases, the proof must be strong, clear, concordant and unrebutted
presumptions of fact. He further focuses on burden of proof which lies upon who in case of
allegation of torture is against police and detaining authorities and what will be the state role
to prevent it.41

The written on the basis of torture and inhuman treatment by the police adds that the
prohibition of inhuman treatment is absolute and neither is infringed upon or violated. He
also includes that practically inhuman treatment is related to police work, because, police are
permitted to use force or limit certain when necessary such as during arrest or interrogation,
They are asked for causing inhuman treatment. This Article also provides the distinction
between legitimate treatment and inhuman treatment. Besides these, writer shows the
necessity and proportionality principles, on police misconduct and its consequences.42

40
PREVENTIVE DETENTION AND VIOLATION OF HUMAN RIGHTS: BANGLADESH PERSPECTIVE,
[viewed on 26 October 2017] available from http://bdjls.org/research-monograph-preventive-detention-and-
violation-of-human-rights-bangladesh-perspective/6/
41
Reidy, Aisling, Prohibition of Torture; Responding to allegations of ill-treatment, Human rights handbooks,
No. 6, Directorate General of Human Rights Council of Europe.[viewed on 26 October 2017] available from
https://rm.coe.int/168007ff4c
42
THE PROHIBITION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT {viewed on 29 October, 2017}, Available from
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&cad=rja&uact=8&ved=0ahUKEwjq
zOL5hZXXAhXHMI8KHb5qB5M4ChAWCCMwAA&url=http%3A%2F%2Ffra.europa.eu%2Fsites%2Fdefaul
t%2Ffiles%2Ffra-2013-fundamental-rights-based-police-training_module-
4_en.pdf&usg=AOvVaw2KNsBAYjcTAApKxhZolASU

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

In this Report, NHRC evaluates the role of law-enforcement organ to protect torture and
inhuman treatment on the people. The report critically examines the legal instruments which
are applicable in Bangladesh and identify the gap between international and national norms
or law in this regard. Besides these, it is shown that whether Bangladesh is bound to comply
the international and national norms to prohibit inhuman treatment and also added the
recommendation for both legal reforms and law enforcement agency. For the better
understanding the report explains a case between Limon Vs RAB, Bangladesh. Here Limon
is grossly tortured by RAB which is under inhuman treatment.43

1.9 Research Methodology

This research paper contains the doctrinal and qualitative research. Doctrinal research
includes the library based research. This is a critical study on case law, journal report, article
and existing research pertaining to the issue of prohibition of torture and inhuman treatment,
report as primary source. This thesis analyzes text books, journals and information from
internet as secondary sources in order to completion of my dissertation paper. Data has been
accumulated for this study from both primary as well as secondary sources to finds out the
gap or drawback of the laws which is made for the protection of human rights specially for
the protection of people from inhuman treatment and torture. Besides these the theses finds
out the gap of information pertaining to the topic studying on various famous writers‟ books.

1.10 Data Analysis

To complete the research paper it takes help of Microsoft MS Word, Excel, and Graphics
tools like as Adobe Photoshop.

1.11 Chapterization

This thesis paper includes six chapters namely;


43
National Human Rights Commission, Bangladesh, the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment: A Study on Bangladesh Compliance, March 2013. {Viewed on 18
October, 2017}, Available from
http://nhrc.portal.gov.bd/sites/default/files/files/nhrc.portal.gov.bd/page/348ec5eb_22f8_4754_bb62_6a0d15ba1
513/Study%20report%20CAT.pdf

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

Chapter One : Introduction


Chapter Two : Historical Background Regarding Right against Inhuman Treatment and
Human Right
Chapter Three : Existing Laws and Regulations regarding Inhuman Treatment
Chapter Four : Recent Role of Judicial Regarding Inhuman Treatment
Chapter Five : Enforcement of Prohibition of Torture;Disappearance
Chapter Six : Conclusion

1.12 Conclusion

This theses paper have showed the object and purpose of making this paper in objective
clause under chapter one. Besides these in this chapter it also overages the drawbacks of the
laws which help to cause torture and inhuman treatment. It also outlines the national and
international humanitarian laws and judicial precedence which strongly stands against the
inhuman treatment and torture along with specifying the remedies of violation of the laws.
And what‟s a necessary step should be taken to reduce the inhuman treatment and torture
caused by the law enforcement agencies is shown in this theses paper.

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

Chapter Two: Historical Background Regarding Right against Inhuman Treatment


and Human Right

2.1 Introduction

Human rights are moral principles or norms that describe certain standards of human
behavior, and are regularly protected as legal rights in municipal and international law. They
are commonly understood as inalienable fundamental rights "to which a person is inherently
entitled simply because she or he is a human being," and which are "inherent in all human
beings" regardless of their nation, location, language, religion, ethnic origin or any other
status. They are applicable everywhere and at every time in the sense of being universal.
According to Salmond – When a person has a duty towards the other person, the later person
has a right against the former.

2.2 A Brief Historical Development of Human Right.

Cruel and unusual punishment came to be denounced in the English Bill of Rights of 1689.
The Age of Enlightenment in the western world further developed the idea of universal
human rights. The adoption of the Universal Declaration of Human Rights in 1948 marks the
recognition at least nominally of a general ban of torture by all UN member states. The Bill
of Rights, also known as the English Bill of Rights, is an Act of the Parliament of England
that deals with constitutional matters and sets out certain basic civil rights. It sets out certain
rights of individuals including the prohibition of cruel and unusual punishment and
reestablished Protestants to have arms for their defence within the rule of law.44

In the United Kingdom, the Bill of Rights is further accompanied by Magna Carta, the
Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts 1911 and 1949 as
some of the basic documents of the uncodified British constitution. A separate but similar
document, the Claim of Right Act 1689, applies in Scotland. The Bill of Rights 1689 was one
of the inspirations for the United States Bill of Rights.45 Various International Laws defines
the word “Torture” as under;

44
https://en.wikipedia.org/wiki/Torture
45
ibid
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Rome Statute of the International Criminal Court: Paragraph 1 under Article 7(e) of the
Rome Statute provides that- “Torture" means the intentional infliction of severe pain or
suffering, whether physical or mental, upon a person in the custody or under the control of
the accused; except that torture shall not include pain or suffering arising only from, inherent
in or incidental to, lawful sanctions.46

All fundamental rights are human rights but all human rights are not fundamental rights. In
Bangladesh Right to prohibition to torture, inhuman treatment and degrading punishment is a
fundamental right which is protected by Article 35(5) of the Constitution of the People‟s
Republic of Bangladesh. Prohibition of torture as human rights this thesis paper broadly
shows the historical background or historical development of human rights.The idea of
modern human rights began during the era of renaissance humanism in the early modern
period. There are various types of historical period. Thus- ancient world, ancient India,
islamic period, middle period, modern period.

2.2.1 Ancient Period

Firstly, in 2350 BC Professor Norman Yoffee wrote a legal code on human rights namely
“The Urukagina of Lagash”. It Provided some punishment for adultery with women. In 2050
BC Ur-Nammu Yasasi wrote a Law Code namely Code “Ur-Nammu Law-Code”. This Code
is the oldest known law code surviving today. In 1780 BC, the “Code of Hammurabi” was
issued in Mesoptamia. It shows rules and punishments if those rules are broken, on a variety
of matters, including women's rights, men's rights, children's rights and slave rights. In 1879
BC, The Achaemenid Persian Empire of Iran established principles of human rights the
“Cyrus Cylinder of Cyrus the Great”.

In 300 BC, the Mauryan Empire of ancient India established unprecedented principles of civil
rights such as principle of nonviolence, principle of tolerance of all sects and opinion,
obedience to parents, respect for teachers and priests, humane treatment of servants to his
book namely “The Edicts of Ashoka”. In 100 BC, the Law of Manu was established by
Manu. It is an ancient legal text among the many Hinduism. This law provides women‟s
rights regarding marriage.

46
Ibid
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2.2.2 Islamic Period

In 622 CE, Prophet Mohammad (S) established the Charter of Medina to maintain peace and
co-operation among all Median groups. The document ensured freedom of religious beliefs
and practices for all citizens who "follow the believers". Prophet Mohammad (s) made it
compulsory for government to provide food, clothing on a reasonable basis and also ensured
freedom and ban of forced enslavement.

2.2.3 Middle Period

In 1215 King John of England issued Magna Carta which influenced the development of
the common law and many later constitutional documents, such as the United States
Constitution and the Bill of Rights. Magna Carta is considered the right of habeas corpus.
This right arises from what are now known as clauses 36, 38, 39, and 40 of the 1215 Magna
Carta. The Magna Carta also included the right to due process: “No Freeman shall be taken or
imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or
exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by
lawful judgment of his Peers, or by the Law of the Land. We will sell to no man; we will not
deny or defer to any man either Justice or Right.”

— Clause XXIX of the Magna Carta

2.2.4 Modern Period

In 1689, the Bill of Rights was established in England which included freedom from cruel on
unusual punishment. In 17th and 18th century John Locke (European) develop the concept of
natural rights, the notion that people possess certain rights by virtue of being human. Lock
believed natural rights were derived from divinity since humans were creations of God. Two
major revolutions occurred that century in the United States (1776) and in France (1789). The
United States Declaration of Independence includes concepts of natural rights and famously
states that- “All men are created equal, that they are endowed by their creator with certain
unalienable rights that among these are life liberty and the pursuit of happiness.” In 1849,
Hanry David Wrote about human rights in his treaties On the Duty of Civil Disobedience
which was later influential on human rights and civil rights thinkers.

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

2.3 Conclusion

This thesis paper has showed a brief historical development regarding right to protection
against inhuman treatment. From the ancient period still now the right is being developed
with the facing of new problems pertaining to right to protection from inhuman treatment.

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

Chapter Three
Existing Laws and Regulations Regarding Inhuman Treatment

3.1 Introduction

Not only our national laws and regulations but also international human right also protects the
human from torture and inhuman treatment. In this perspective this theses paper shows the
most the laws, regulation and international laws regarding this topic.

3.2 Relevant Laws and Regulations: Domestic


 The Constitution of People‟s Republic of Bangladesh
 Penal Code, 1860
 Prohibition to Torture and Death in Custody, 2013
 Nari O Shishu Nirjatan Ain, 2000
 The Police Act of 1861
 The Acid Offence Control Act, 2002
 Domestic Violence (Prevention and Protection) Act, 2010

3.2.1 The Constitution of People’s Republic of Bangladesh

No person shall be convicted of any offence except for violation of a law in force at the time
of the commission of the act charged as an offence, nor be subjected to a penalty greater than,
or different from, that which might have been inflicted under the law in force at the time of
the commission of the offence.47 No person shall be subjected to torture or to cruel, inhuman,
or degrading punishment or treatment.48

The right to move the High Court Division in accordance with clause (1) of article 102, for
the enforcement of the rights conferred by this Part (Part III, fundamental right) is
guaranteed.49 Without prejudice to the powers of the High Court Division under article 102,

47
See, Article 35 (1) of the Constitution of People’s Republic of Bangladesh
48
See, Article 35 (2), ibid
49
See, Article 44 (1), ibid
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Parliament may by law empower any other court, within the local limits of its jurisdiction, to
exercise all or any of those powers.50

The High Court Division on the application of any person aggrieved may give such directions
or orders to any person or authority including any person performing any function in
connection with the affairs of the Republic as may be appropriate for the enforcement of any
of the fundamental rights conferred by Part III of this Constitution.51

3.2.2 Penal Code 1860

Whoever, except in the case provided for by section 334, voluntarily causes hurt shall be
punished with imprisonment of either description for a term which may extend to one year or
with fine which may extend to one thousand taka or with both.52

Whoever, except in the case provided for by section 334 voluntarily causes hurt by means
of any instrument for shooting, stabbing or cutting or any instrument which, used as a
weapon of offence, is likely to cause death or by means of fire or any heated substance or by
means of any poison of any corrosive substance or by means of any explosive substance or
by means of any substance which it is deleterious to the human body to inhale, to swallow or
to receive into the blood, or by means of any animal, shall be punished with imprisonment
of either description for a term which may extend to three years or with fine or with both.53

Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt,
shall be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine.54

Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by
means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a
weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by
means of any poison or any corrosive substance, or by means of any explosive substance, or

50
See, Article 44 (2), ibid
51
See, Article 102 (1), ibid
52
See, Section 323 of the Penal Code 1860
53
See, Section 324, ibid
54
See, Section 325 of the Penal Code 1860
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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

by means of any substance which it is deleterious to the human body to inhale, to swallow, or
to receive into the blood, or by means of any animal, shall be punished with 116
[imprisonment] for life or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.55 Besides these, section 326A, 327, 328,
329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 338A of the Penal Code, 1860 also stipulate
not to cause hurt and grievous hurt otherwise punishment shall be imposed.

Whoever wrongfully restrains any person in such a manner as to prevent that person form
proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that
person.56 Whoever wrongfully confines any person, shall be punished with imprisonment of
either description for a term which may extend to one year, or with fine which may extend to
one thousand taka, or with both.57

Whoever assaults or uses criminal force to any person otherwise than on grave and sudden
provocation given by that person, shall be punished with imprisonment of either description
for a term which may extend to three months, or with fine which may extend to five hundred
taka, or with both.58 Besides this, section 353, 354, 355, 356, 357, 358 of the Penal Code,
1860 also criminalize act of assault and criminal force.

Whoever commits rape shall be punished with 131 [imprisonment] for life or with
imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine, unless the woman raped is his own wife and is not under twelve years of
age, in which case he shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.59

Whoever threatens another with any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is interested, with intent to cause to
alarm to that person, or to cause that person to do any act which he is not legally bound to do,
or to omit to do any act which that person is legally entitled to do, as the means of avoiding

55
See, Section 326, ibid
56
See, Section 340, ibid
57
See, Section 342, ibid
58
See, Section 352, ibid
59
See, Section 376, ibid
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the execution of such threat, commits criminal intimidation.60 Whoever commits the
offence of criminal intimidation shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.61

3.2.3 Prohibition of Torture and Death in Custody 2013

This Act was enacted by the Government of Bangladesh in October 2013 due to protect the
right from torture or inhuman treatment. It includes all most all procedure to dispose a case
which is filed under this Act under section 5 and 6. Section 5 stipulates to file a case by the
police officer on the order of the appropriate court.62 Section 6 provides a facility to make
complain on torture by the third person. Third person refers to any person who knows the fact
of torture. Under section 8 the police officer not below the rank of police super or superior
officer of police super shall submit the report on investigation made under section 7 before
the Session Judge‟s court. Here the investigation shall be done within ninety days (90) from
the date of filling complaint before court. To conclude the investigation the Code of Criminal
Procedure 1898 may be applied.63

This Act stipulates the court and time limitation regarding a case on torture. The court under
this Act shall be the Session Judge‟s court established under section 14 (1) of this Act. The
prescribed time limit for trial, under section 14 (2) of the Act, is 180 days from the
registration of the complaint. The Court may extend this time limit for 30 additional days on
the basis of reasonable grounds.

Sections 15 (1), (2) and (3) provide for the punishment of offences under this Act. Section
15 (2) provides “If any person tortures another person and if that person dies due to the
torture then the torturer shall be considered as having committed a crime under Section 13 (1)
and shall be punished with rigorous imprisonment for life or shall be liable for a fine of not
less than one lac (100,000) Taka or both and shall pay additional two lac (200,000) Taka to
the victim/aggrieved person/persons.”

60
See, Section 503, ibid
61
See, Section 506, ibid
62
“Appropriate court” refers to the Session Judge‟s Court established under section 14 (1) of the Torture and
Custodial Death (Prohibition) Act, 2013
63
See, Section 9, ibid
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3.2.4 Prevention of Oppression against Women and Children Act 2000

Section 4 (1) of the Act lays down that whoever causes death or attempts to cause death of
any woman or a child by burner, corrosive poisonous substance, he shall be punished with
death or transportation for life and also with fine not exceeding one lac taka. Section 4 (2)
provides that whoever causes hurt to a child or a woman in consequence of which the sight
or ear is permanently damaged or any organ, joint or limb thereof is disfigured any part of the
body of the woman or the child is as such that The sight or ear is damaged or face or breast or
sexual organ is disfigured, the person shall be punished with death or transportation for life
and also with fine not exceeding one lac taka.64 In case where, any limb, joint or part of the
body is disfigured or any part of the body is damaged, he shall be punished with
imprisonment of either description which may extend to fourteen years but not less than
seven years of rigorous punishment and also with fine not exceeding fifty thousand taka.65

Besides these, section 9, 10, 11 and 12 of the Act also includes the punishment provision for
committing death along with rape with a child or woman. Thus; whoever commits rape with a
woman or a child shall be punished with rigorous imprisonment for life and with fine.66 If in
consequence of rape or any act by him after rape, the woman or the child so raped, died later,
the man shall be punished with death or with transportation for life and also with fine not
exceeding one lac taka.67 If more than one man rape a woman or a child and that woman or
child dies or is injured in consequences of that rape, each of the gang shall be punished with
death or rigorous imprisonment for life and also with fine not exceeding one lac taka.68
Section 10 stipulates the Punishment for sexual oppression that is if any person touches
the sex organ or any other organ or outrages the modesty of a woman with an intention to
illegally satisfy his sexual instinct/desire that will amount to sexual assault and for that he
shall be punished with rigorous imprisonment not more than 10 years but not less than 3
years and shall also be liable to fine.69

64
See, Section 4 (2) (a) of the Prevention of Oppression against Women and Children Act, 2000
65
See, Section 4 (2) (b), ibid
66
See, Section 9 (1), ibid
67
See, Section 9 (2), ibid
68
See, Section 9 (3), ibid
69
The Prevention of Oppression against Women and Children Act, 2000
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Section 11 established to protect a woman from torture for dowry stating that If the husband
of a woman or his father, mother, guardian or any other person on behalf of the husband,
causes death or attempts to cause death, cause hurt or attempts to cause hurt to the woman
then the husband, the father, mother guardian, relative or any other person on his behalf shall,
be punished with death for causing death and imprisonment for life for attempting to cause
death and shall also be liable to fine for both, be punished with rigorous imprisonment for life
or rigorous imprisonment not more than 12 years but not less than 5 years and shall be liable
to time for grievous hurt, be punished with rigorous imprisonment not more than 3 years but
not less than 1 years and shall be liable to fine for simple hurt.70 Whoever damages hands,
feet, eyes or any other limb of a child, or makes disabled or disfigured by any means, for the
purpose of making him a beggar or to sale any part thereof, he shall be punished with death
or rigorous imprisonment for life and also with fine.71

3.2.5 Police Act of 1861

Section 29 of the Act provides that every police officer who shall offer any unwarrantable
personal violence to any person in his custody shall be liable to a penalty not exceeding three
month‟ pay or to imprisonment, with or without hard labour, for a period not exceeding three
months or to both.72

3.2.6 The Acid Offence Control Act, 2002

Under this Act, section 4, 5 and 6 provide Punishment for causing death and hurt by Acid as
well as for throwing Acid that is- “if any person causes death of any other person by acid,
such person shall be punished with death or rigorous imprisonment for life and in addition to
that shall also be liable to fine not exceeding Taka one lac.”73 If any person causes hurt, to
any other person in such a way that his eye sight or hearing power is lost fully or partially or
face, breast or sexual organ is defaced or destroyed, such person shall be punished with death

70
The Prevention of Oppression against Women and Children Act, 2000
71
See, Section 12, ibid
72
National Human Rights Commission, Bangladesh, 2013. The Convention Against Torture And Other Cruel,
Inhuman or Degrading Treatment or Punishment: A Study on Bangladesh Compliance [online], 35, [Viewed on
18 October 2017]. Available at
http://nhrc.portal.gov.bd/sites/default/files/files/nhrc.portal.gov.bd/page/348ec5eb_22f8_4754_bb62_6a0d15ba1
513/Study%20report%20CAT.pdf
73
See, Section 4 of the Acid Offence Control Act, 2002
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or rigorous imprisonment for life and in addition to that shall also be liable to fine not
exceeding Taka one lac, to any other organ, ligament or part of the body is deformed or
destroyed or any part of the body is injured, such person shall be punished with rigorous
imprisonment for not more than fourteen years but not less than seven years and in addition
to that shall be liable to fine not exceeding Taka fifty thousand. 74If any person throws or
attempts to throw acid to any other person, he shall be punished with rigorous imprisonment
for not more than seven years but not less than three years and in addition to that shall also be
liable to fine not exceeding Taka fifty thousand though for his such activities the person is not
affected physically, mentally or in any other way.75

3.3 International Convention on Prohibition of Torture

Geneva Convention, 1949, Article 32 prohibits corporal punishment and torture, thus “A
protected person/s shall not have anything done to them "of such a character as to cause
physical suffering or extermination. This prohibition applies not only to murder, torture,
corporal punishments, mutilation and medical or scientific experiments not necessitated by
the medical treatment.” Universal Declaration of Human Rights, 1948, Article 5 provides
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.” International Convention on Civil and Political Rights, 1966, Article 7
states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.” European Convention of Human Rights, 1950, Article 3
prohibits the torture laying down “No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.” American Convention of Human Rights, Article 5 (2)
also prohibits torture providing that “No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.” Convention on the Rights of the Child, 1989, Article
37 (a) mandates states parties who shall ensure that “No child shall be subjected to torture or
other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor
life imprisonment without possibility of release shall be imposed for offences committed by
persons below eighteen years of age”. Article 39 mandates states parties who shall take all
appropriate measures to promote physical and psychological recovery and social reintegration
of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of

74
See, Section 5, ibid
75
See, Section 6, ibid
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cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and
reintegration shall take place in an environment which fosters the health, self-respect and
dignity of the child.76 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1984 was basically made for protecting a person
from being victim of inhuman treatment and torture. The whole Convention specially deals
with torture, cruel, inhuman, degrading punishment but Article 1-3 & 13-16 specifically
deals on right to protect from inhuman treatment. The Elimination of All Forms of Racial
Discrimination, 1969, Article 12 outlines the obligation of states parties to “take all
appropriate measures to eliminate discrimination against women in the field of health care in
order to ensure access to health care services, including those related to family planning. Here
state has an obligation to provide health care services so that it doesn‟t turn into inhuman
treatment.

3.4 Constitutional Based Comparative Study on Prohibition of Torture

Under Constitution of the United States of America, the eighth amendment (1791) protects
people from having bail or fines set at an amount so high that it would be impossible for all
but the richest defendants to pay and also protects people from being subjected to cruel and
unusual punishment. Under Constitution of India, Article 20 provides protection in respect
of conviction for offences that is “No person shall be convicted of any offence except for
violation of a law in force at the time of the commission of the Act charged as an offence, nor
be subjected to a penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence.”77 No person shall be prosecuted and
punished for the same offence more than once.78 No person accused of any offence shall be
compelled to be a witness against himself.79 Article 14 (2) of The Constitution of Pakistan
provides “No person shall be subjected to torture for the purpose of extracting evidence.”
Article 35 (5) of the Constitution of People’s Republic of Bangladesh provides “No person
shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. But
it is very notable matter that Constitution of Australia doesn‟t provide any provision
regarding protection from inhuman treatment and torture.

76
Convention on the Rights of the Child, 1989
77
See, Article 20 (1) of the Constitution of India
78
See, Article 20 (2), ibid
79
See, Article 20 (3), ibid
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Chapter Four
Judicial Development on Prohibition of Torture

4.1 Brief Discussion of Judicial Development

4.1.1 Arrest

A leading namely BLAST vs. BD clears the term “reasonable suspicion”. Generally the
enforcement agencies abuses the terms and following this terms they are used to cause any
different types of brutal torture and inhuman treatment. But now, there is no vagueness under
section 54.Now the police officers must write the reason of arrest and mustn‟t arrest any
offender until he meet with his family member on the matter of arrest and must have facility
to choose advocate. In case of Mrs. Aruna Sen Vs Government of Bangladesh80 it is held
that the ground on which order of detention is made must be communicated to the detenu to
enable him to a make represented at the earlier opportunity.

4.1.2 Detention

In a case Tarique vs Bangladesh81 it is held that no person can be convicted or sentenced


without following compleating investigation inquiry in respect of an offence. In another case
namely Gias Uddin Al Mamun Vs State82 it is held that if a person is punished for his crimes
he cannot be again punished for the same crime. In Mansur vs Ministry of Home Affairs83 it
is held that no person shall be detain more than 6 month without the approval of the advisory
board. In Kalandiar Kabir vs Bangladesh84 it is held under the Jail Code a state prisoner
shall be treated like a civil prisoner. This doesn‟t sufficiently cover the status of a detenu. The
Government should frame rules regarding the detenu and shall keep in mind that he still
retains some right under articles 27 and 30 of the Constitution in spite of his detention. In this
case the courts recommend to the government to frame qualitative laws regarding detenu
because Jail Code is not sufficiently cover the status of a detenu. In case of HM Ershed vs

80
27 DLR (HCD) 1975 p.122
81
63 DLR (AD) 18
82
65 DLR (HCD) 375
83
42 DLR (1990) 272
84
54 DLR (2002) 258
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The State85 it was held that no person shall be prosecute and punished for the same offence
more than once. In this case Shaikh Md Harun or Rahsid Vs secretary Ministry of Jute
Government of the peoples of Bangladesh86 and other It was held that under constitution
Article 35 (2) of Bangladesh no person for the same offence more than once.

4.1.3 Personnel Livelihood

In case namely Birampur Matshajibi Samebay vs Bangladesh87 it is held that if a person has
been influence by a person or malafied (guilty mind) authority because of the decision of
public authority then she will get the remedy under article 31. Because article 31 clears that
no action which is detrimental to the life, liberty, body, reputation or property of any person
shall be taken except in accordance with law. Though this dissertation papers emphasizes on
article 35 (5) but article 35(5) indirectly related to various fundamental rights of our
constitution.

4.1.4 Remand

In BLAST vs Bangladesh88 it is held that the very system of taking of an accused on remand
for the purpose of interrogation and extortion of information by application of force is totally
against the spirit and explicit provision of the constitution. Besides this, In Ain-O-Salish
Kendra vs Bangladesh89 it is held by the HCD that police had been taken the accused in
remand twice but there consequence is zero and there is nothing to show before the court.
The respondents are directed further not to take accused on remand any further in the said
case and even in course of the ongoing remand he should not be subject to physical torture of
any kind.

4.1.5 Torture by LEA as Conspicuous

In case of Bangladesh vs Md. Azizur Rahman and others90 it is held that all citizens are
equal before the law and are entitled to equal protection of law. So, on the basis of political
influence or government influence any person should not be tortured inhumanly by the law
enforcement agency. Because, everyone are entitled to get equal protection before the eye of

85
45 DLR (1993) 533
86
33 DLR (HCD) 1981, p. 230
87
68 DLR (HCD) 408
88
55 DLR (2003) 363
89
56 DLR (2004) 620
90
46 DLR (1994) 19
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law. In another case namely Shafiuddin Ahmed vs. Bangladesh91 it is also mentioned that
All citizens are equal protection of law. In Gias Uddin vs Dhaka Municipal Corporation92 it
was held that protection of life means that one‟s life cannot be endangered by the action
which is illegal but it does not mean protection of an illegal action of any person. No action
deter mental to the life, liberty, body, reputation or property of any person shall be taken
except accordance with law. Besides this eviction of a person or race without prior notice and
by force is not only illegal but also violation of the fundamental rights to life and human
right. Violation of right to life also cause violation of the protection from inhuman treatment
under article 35 (5) of our constitution. In this regard, Rohinga cleansing from Myanmar can
be drawn as an example of violation of right to life and violation of right to protection from
inhuman treatment and torture. It is well known that such violation is done by the law
enforcement agency of Myanmar.

4.1.6 Death for Negligence

In a case Masud vs Md Kashed Miah93 it is held that if any death is caused by negligence or
breach of statutory duty than the right to get appropriate compensation can be considered.

Illegal Punishment: In case of Mrs. Aruna Sen Vs Government of Bangladesh94 it is held


that the ground on which order of detention is made must be communicated to the detenu to
enable him to a make represented at the earlier opportunity. As a result the detenu can be able
to take defense on his behalf appointing advocate against the allegation brought against the
detenu.

4.1.7 Natural Justice

There have three principles of natural justice to protect from inhuman punishment or
degrading punishment which must be followed judicial body at the time of preceding a case.
The first principle is that “Audi Alteram Partem” (the person concerned must be given an
opportunity of being heard before any adverse action is taken against him). Secondly, No one
should be the judge of his own cause and thirdly Justice should not only be done rather to be
seen the decision.

91
47 DLR (1995) 81
92
49 DLR (1997) 199
93
67/65 DLR (HCD) 523
94
27 DLR (HCD) 1975 p.122
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4.1.8 Prohibition of Ragging

The word “Ragging” is very much well-known to everyone that is done specially in varsity
and college where students are admitted to complete academic graduation as well as
acquiring knowledge on various angle. But most of new students face newly with the
activities of ragging. Senior students misbehave with junior students ordering illegal or
immoral activities with others. As a result students are victim mental and physical torture and
inhuman treatment. In this regard, Indian judicial body is very much concerned. In India, 89
incidents of Ragging were caused in 2007. Amongst 89 incidents 11 students were died, 6
were suicides and 17 were seriously injured for ragging. In 2008-2009, over 164 ragging
incidents and 19 deaths were caused. In 2011-2012 over 961 cases of ragging registered. It is
a massive branch of inhuman treatment and torture.95

4.1.9 In case of property acquisition

In case of Ragib Ali vs Bangladesh and others96 it is held the if the government illegally
disposed anyone from his property and from his lawful rights on possession, the government
shall return his property or pay adequate compensation so that inhuman treatment upon the
owner of the property is caused.

95 Aditya Datt , January 4, 2013.Table No. 21; Eros International.


96
33 DLR (HCD) 1981, p. 185
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Chapter Five
Enforcement of Right to Protection from Torture: Disappearances

5.1 Present Scenario in Bangladesh Perspective

Though there have lots of national and international laws and conventions to protect citizen
from inhuman treatment, torture, ill-treatment and degrading punishment but this right is not
enforcing properly.

A recent Brac study has found that at least 7,489 women and girls became victims of violence
in 2016. The study gets more worrying: 20 percent of the victims of violence against women
are children, and that each day, on average, 1.7 children were victims of rape last year. The
figures are shameful and disturbing, and paint a dismal combined picture of the numerous
individual instances of rape, violence and sexual harassment that we see reported almost
every day.97 It has also been stated that many cases go unreported; therefore the figure of
7489 does not even show the full extent of the problem. That there has been a sharp increase
in violence against women is evident; the total number of cases in 2014 was 2,873. It also
seems our efforts to curb domestic violence have failed; eighty-two percent of the violence
occurred in the domestic sphere according to the study.98

Why this disturbing trend despite government and non-government efforts? Clearly there is a
lack of implementation of law. We need gender sensitive institutions and quick disposal of
these cases. Impunity is another factor which not only hinders justice, but also makes victims
and their families fear filing cases. The debate and activism has been there; what is lacking is
a concerted sincere effort on the part of administration and the law enforcement agencies. On
top of speedy implementation of the laws, policy reforms towards gender sensitivity and
education to instill respect towards women from the school level is needed. Implementation
and proper knowledge of the law is crucial.99

97
http://www.thedailystar.net/editorial/violence-against-women-2016-1377031
98
ibid
99
ibid
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5.2 Ethnic Cleansing In Myanmar: Rohinga Community

The Rohingya people are a stateless Indo Aryan people from of Rakhine State of west
Myanmar. There were an estimated 1 million Rohingyaliving in Myanmar before the 2016-
2017 crisis. The majority are Muslim. United Nations described in 2013 as one of the most
persecuted minorities in the world. The citizenship of rohingya people were denied under the
Myanmar Nationality Law 1982. They were restricted from state education and civil service
jobs. The Rohingya have faced military crackdowns in 1978, 1992, 2012, 2015, 2016-2017.

Just before 3 days of Edul Adha in last 30 August Myanmar Armed forces brought together
Rohingya people in Baluchor place the inhabitants of three villages of Mongdo of Rakhine
State. Bullets were fired indiscriminately where most of the people died. Those who were
alive, they were killed slice by weapon. Taiba, the inhabitant of Tolatoli village who was
alive described the gruesome genocide. No people of his family was alive. Asaduzzaman the
reporter of Daily Prothom Alo talked with 85 refugees. They described the inhumane
treatment. The Myanmar Armed Forces fired their homestead. The escaped male people were
killed by shooting. Female were locked up in a room and rapped. At last their lives have been
taken up. Hazera Khatun of Tolatoli village ensured no people of his family is alive.100

The Armed Forces started to torture from the 25 Aug. on the point of attacking in frontier
sentry-box. Actually the incident has been opened from last 11 Aug. when the Armed Forces
tortured the general people going their home, village in the name of suppressed of rebel
group.101Edris who was bulleted described that Armed Forces started shoot in their village
from 9 p.m suddenly in Friday (25 Aug.)102London based human rights organization Amnesty
International thinks that Myanmar Armed Forces took the “Scorched Earth” theory.
Scorched Earth means surrounding from all sides, dazzling the homestead and shooting at the
time of fled away.103

United Nations thinks that such attacking is pre-plan. From 14 sep. to 24 sep. representatives
of UN described the matters of tortured, murder, rape, using mine in border while they faced
65 refugees in Cox Bazar.104 Amnesty International thinks that Armed Forces forced
Rohingya to flew away and it is pre-plan. Human Right Watch (human rights organization)

100
Daily ProthomAlo, reported on 25 Aug.
101
Daily ProthomAlo, reported on 26 Aug.
102
Daily ProthomAlo, reported on 28 Aug.
103
Daily ProthomAlo, reported on 16 Sep.
104
Daily ProthomAlo, reported on 11 Oct.
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thinks also in a same.105 Police of Myanmar associated the Armed Forces as noted
Commander-in-chief of the Myanmar Armed Forces Min Aung Hlaing, “ Armed Forces and
Police are jointly handling the Bengali Extremist”. ohingya people started leaving their place
for the unbearable torture of Armed Forces, police and extremist Buddhist from 26 Aug. of
this year. In 26 Aug. around 3000 people came into Bangladesh. The figure turned into above
10 lac by 10th Oct including Rohingya came into Bangladesh in 2016 where 80% female and
child (Reported by UN, 7 Sep.) Those who fled away to save their lives but nature did not
support to live. 125 Rohingya became died in Naf River and Sea of Bengal. 106 Observing the
pics of satellite, Human Rights Watch expressed that from 25 Aug. 10 area of Arakhine were
burned. 700 home were burned (reported 5 Sep.). 288 villages were also burned (reported 18
Oct). Ambassador of Vatican reported that 10,000 homesteads were burned down by Armed
Forces of Myanmar.107

Crisis response director of Amnesty International Tirana Hasan said that the voice of Aung
San Suu Kyi, “the crackdown was stopped from 5 Sep.” is false. From the video of satellite
in 22 Sep. it was seen that the village of Par Wat Chong of Mongdo was flaming.108 In this
inhumane barbarism how much people has been killed, it is impossible to know as every sort
of reporter were stopped to entry in the devastated area. But the ambassador of UN on human
rights affairs Yeahi Lee stated that may be above 1000 Rohingya were killed in this genocide.

Armed Forces of Myanmar Claimed early that they killed 430 extremistRohingya.109 The
Ambassador of Vatican claimed that 3000 Rohingya were killed by Armed forces.110 After 68
days, State Councillor & Foreign Affairs Minister of Myanmar and head of the government
in Myanmar Aung San SuuKyi visited Mongdo.Before this he did not make any comment or
any protest against this brutality. He commented the brutality as quarrel. He forbade to
altercation and live peacefully. This is the mentality of a nobelist on peace.111 Commander-
in-chief of Myanmar Armed Forces Min Aung Hlaing also responsible for such genocide. In
1 Sep. in an assembly held in Nepro, the administrative capital of Myanmar, the Commander-
in-chief treated this genocide as incomplete agenda and declared to continue this military

105
Daily ProthomAlo, reported on 16 Sep.
106
Daily ProthomAlo, reported on 27 Sep.
107
Daily ProthomAlo, reported on 11 Sep.
108
Daily ProthomAlo, reported on 23 Sep.
109
Daily ProthomAlo, reported on 9 Sep.
110
Daily ProthomAlo, reported on 20 Sep.
111
Daily ProthomAlo, reported on 23 Nov.
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crackdown.112 Commander-in-chief called on Myanmarian to stand against Rohingya people.


He said that they are not ethnic, they are Bengali extremist. He directed to the media to report
it.113 40% villages of Rakhine state of Rohingya inhabited are man free. The government of
Myanmar opined that Rohingya people leaved their villages at their sweet will. Myanmar
government disagreed to treat this brutality as genocide.114Nonetheless Aung San Suu Kyi
was held liable for such brutality and declared this brutality as genocide in the trial held in
kuala Lumpur of Malaysia.

5.3 Statistics on Torture

Torture and other ill-treatment in custody were widespread; however, complaints were rarely
investigated. The 2013 Torture and Custodial Death (Prevention) Act was poorly enforced
due to a lack of political will and awareness among law enforcement agencies. Human rights
groups accused several security force branches – including police and the Rapid Action
Battalion – of torture and other ill-treatment. Torture was carried out to extract “confessions”,
for extortion or to punish political opponents of the government. 115 On March 17, 2017 Daily
Star published a report on violation of human rights which contains valuable details on
torture or inhuman treatment caused by various ways. The report contains that-

The year 2014 was alarming for the country's overall human rights situation despite

In 2014, as many as 128 people died in “crossfire” and “gunfight” between law enforcers and
alleged "criminals", while the number was 72 in 2013. Custodial torture claimed the lives of

112
Daily ProthomAlo, reported on 6 Sep.
113
Daily ProthomAlo, reported on 17 Sep.
114
Daily ProthomAlo, reported on 15 Sep.
115
https://www.amnesty.org/en/countries/asia-and-the-pacific/bangladesh/report-bangladesh/

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at least 60 people, according to the report. ASK also singled out a new trend of rights
violation by law enforcers last year, which was shooting in the leg of an “accused”. Instances
of this trend were evident especially in Jessore, Satkhira and Dhaka. The ASK report says
147 people were killed in 664 political clashes while 34 died and 2,206 got injured in 171
infightings within the ruling Awami League last year. The report also draws attention to
persecution of religious and ethnic minorities, women and journalists. As many as 761 houses
of Hindu communities were vandalised and torched. Criminals also vandalised and set fire to
193 of their business places and 247 idols and temples. In 2014, 707 women were raped. Of
them, 68 were killed later and 13 committed suicide. Besides, 146 women fell victim to
sexual harassment. Of them, 14 committed suicide and seven were killed for demanding the
perpetrators' trial. ASK also received numerous complaints of attack on indigenous
communities in the hilly region. Most of these attacks were carried out by Bangalee settlers in
a bid to grab lands owned by these communities. Allegations of torture on indigenous women
by Bangalees were also rife. Journalists were harassed across the country in at least 239
incidents, which included the murder of two journalists, last year. 33 Bangladeshis were
killed by the Indian Border Security Force along the border, claims the report. The report,
however, has welcomed the six verdicts which were delivered in war crimes cases by the two
International Crimes Tribunals last year despite slow progress of the trials.116
In this regard international survey institution like as “Odhikar” and “Ain O Salish Kendra”
(ASK) reported on violation of right to protection from torture and inhuman treatment as
under:
Table 1

Totally 81 persons are tortured by the RAB from 2004-2016.

Torture (Dead and Alive) from 2004-2016 by RAB


Grand
Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Total
Person 4 21 9 5 5 0 2 0 1 47
Alive
Person 11 4 4 2 3 3 2 1 0 1 1 2 0 34
Died
Total 11 4 4 2 7 24 11 6 5 1 3 2 1 81
Source: Odhikar (Torture from 2004 to 2017)

116
http://www.thedailystar.net/state-of-human-rights-alarming-57975
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Table 2
Totally 438 persons are tortured by Police from 2004-2016.

Torture (Dead and Alive) from 2004-2016 by Police


Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Grand
Total
Person 10 27 35 36 24 53 18 20 20 12 255
Alive
Person 28 20 23 14 8 11 20 14 5 10 9 6 11 179
Died
Total 28 20 23 24 35 46 56 38 58 28 29 26 23 434
Source: Odhikar (Torture from 2004 to 2017)

Table 3
Totally 7 persons are tortured by Army from 2004-2016.

Torture (Dead and Alive) from 2004-2016 by Army


Grand
Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Total
Person 1 1
Alive
Person 5 1 6
Died
Total 5 1 1 7
Source: Odhikar (Torture from 2004 to 2017)

Table 4
Totally 12 persons are tortured by Joint Force from 2004-2016

Torture (Dead and Alive) from 2004-2016 by Joint Force


Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Grand
Total
Person 2 2
Alive
Person 7 3 10
Died
Total 7 5 12
Source: Odhikar (Torture from 2004 to 2017)

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Table 5
Totally 12 persons are tortured by RAB-Police from 2004-2016

Torture (Dead and Alive) from 2004-2016 by RAB-Police


Grand
Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Total
Person 5 5
Alive
Person
Died
Total 5 5
Source: Odhikar (Torture from 2004 to 2017)

Table 6
Totally 2 persons are tortured by DB Police from 2004-2016

Torture (Dead and Alive) from 2004-2016 by DB Police


Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Grand
Total
Person
Alive
Person 2 2
Died
Total 2 2
Source: Odhikar (Torture from 2004 to 2017)

Table 7
Totally 12 persons are tortured by BGB from 2004-2016

Torture (Dead and Alive) from 2004-2016 by BGB


Grand
Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Total
Person 3 1 1 5
Alive
Person 1 5 1 7
Died
Total 1 8 2 1 12
Source: Odhikar (Torture from 2004 to 2017)

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Table 8
Totally 7 persons are tortured by Coast Guard from 2004-2016

Torture (Dead and Alive) from 2004-2016 by Coast Guard


Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Grand
Total
Person 6 6
Alive
Person 1 1
Died
Total 7 7
Source: Odhikar (Torture from 2004 to 2017)

Table 9
Totally 12 persons are tortured by Members of Task from 2004-2016

Torture (Dead and Alive) from 2004-2016 by Members of Task


Grand
Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Total
Person 2 2
Alive
Person
Died
Total 2 2
Source: Odhikar (Torture from 2004 to 2017)

Table 10
Totally 12 persons are tortured by Navy from 2004-2016

Torture (Dead and Alive) from 2004-2016 by Navy


Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Grand
Total
Person
Alive
Person 3 3
Died
Total 3 3
Source: Odhikar (Torture from 2004 to 2017)

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

Table 11
Totally 12 persons are tortured by Drags and Narotics from 2004-2016

Torture (Dead and Alive) from 2004-2016 by Drags and Narotics


Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Grand
Total
Person
Alive
Person 2 2
Died
Total 2 2
Source: Odhikar (Torture from 2004 to 2017)

Table 12
Totally 12 persons are tortured by Jail Authority from 2004-2016

Torture (Dead and Alive) from 2004-2016 by Jail Authority


Year 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Grand
Total
Person 13 1 14
Alive
Person 1 1 2 1 5
Died
Total 1 13 1 2 2 19
Source: Odhikar (Torture from 2004 to 2017)

Table 13
Totally 556 persons are tortured by Law Enforcement Agency from 2004-2016

Torture (Dead and Alive) from 2004-2016 by Jail Authority


Table 01 02 03 04 05 06 07 08 09 10 11 12 Grand
Total
Person 47 255 1 2 5 5 6 2 14 337
Alive
Person 34 179 6 10 2 7 1 3 2 5 249
Died
Total 81 434 7 12 5 2 12 7 2 3 2 19 586
Source: Odhikar (Torture from 2004 to 2017)

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

Table 14
Violence against women: Type and Trends

700

600

500 2004
2005
400 2006

300 2007
2008
200 2009
2010
100

0
Domestic Dowry Related Rape Gang Rape
Violence Violence

Source: Redrawn from Ain O Salish Kendra (ASK) Documentation unit, 2011 and Odhikar, 2011

Table 15
Violence against women: Type and Trends

250

200
2004
2005
150
2006
2007
100
2008
2009
50
2010

0
Acid Attack Eve
Teasing/Stalking

Source: Redrawn from Ain O Salish Kendra (ASK) Documentation unit, 2011 and Odhikar, 2011

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5.4 Reasons for not Enforcing Right to Protection from Torture

 Failure to Ensure Good Governce: A good government can bring a peaceful society
where the violation of human right can‟t be occurred. If the government of a state is
not good governce and its rule is arbitrary then the violation of human right is deemed
as a seli matter. So good governce surely plays a vital role to ensure right of human.

 Failure of Equitable Rule of Law: If a government is good but rule of law is not
qualified then violation of human rights can be occurred. Rule of Law must be
ensured to establish fundamental right.

 Excess Power of Police: The Bangladesh Police is recognized by the Police Act
(1861), the Code of Criminal Procedure (1898), the Police Regulation, Bengal (1943),
the Armed Police Battalions Ordinance (1979) and relevant Metropolitan Police Acts.
Police Act, 1861 specifies the power of police, superintendence of the force, power of
inspector-general to make rules, special police and their powers, and duties of police
officers. Code of Criminal Procedure, 1898 empowers the police to arrest any
suspicious persons under section 54 of this Act and specifies their powers to
investigate an offence. Police Regulation of Bengal, 1943, section 316 empowers
police to arrest without warrant on reasonable suspicion and section 27of evidence
Act also gives priority to accept statement made by the accused in police custody.

 Political Influence: It is another backing point of not ensuring fundamental right. As


a result of having political bad hand many offenders can easily release from any case
through recommendation by the political concerned authority to the person who is
acting as a judge of concerned case. Even many times a case is not filed after
informing to the police station on an offence by the victim because of political
backing and linking with the police officer.

 Lengthy Process of Trial: Lengthy process of trial in our county is another reason
for not ensuring a fundamental right in due time. Lack of adequate judge, honest
lawyers and inadequate court, a trial takes so long time for reach in its decision.

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

 Pending of Case: For such lengthy process of trial various cases filed before the court
are hanging. As a result a file is covered by another new file. So possibility of
ensuring fair justice is prevented for such long time. It is very well known proverb
law sector which is quoted by the William E. Gladstone that is Justice delayed is
justice denied.

 Inadequacy of Monitory: Lack of adequate monitory on law sectors specifically on


activities of the judges and lawyers human right is not ensuring properly.

 Greediness of Money: It plays very effective role for not to ensure human right and
fundamental right. Because, most of our lawful authorities are used to take bribe to do
an act or omission. As a result the enforcement of fundamental rights is being
obstructed.

 Failure of Inclusive Social Justice: At present, People of the society become selfish.
For the own benefit they don't establish fair social justice.

 Abuse of Power (Ultra Vires): It is one of the most reasons to violate human right in
public office. When the public officer exercising their power more than limit and then
ultra vires is occurred

 Superstation: In our society, we believe that women are not perfect for every job. So
they deprive from doing different job.

 Absence of Deep Sense of Justice: When the administrative authority doesn't


conduct a suit with co-operatively and don't use their deep sense to the dispute then
the parties of the dispute face violation of their right.

 Illiteracy on Law: Most of the employees of government organization are not aware
of their right. Often they don't understand whether their right is violated or not. at the
end, employee agree the decision of superior authority.

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5.5 Necessary Steps to Enforce Right to Protection from Torture.

 People have to ensure good government.


 Government has to establish equitable rule of life.
 Government has to ensure social justice.
 Government has to take proper steps to control abuse of power.
 Government has to take proper steps to stop sexual harassment.
 Government has to increase awareness on superstation.
 Judge has to apply deep sense and thinking on justice.
 Establish new victim support center according to the density of the population.
 Justice system reform (Set law and quick justice system, once offenders offence
established).
 Mindset change (Women and girls are not weak or neglected person).
 Human right Act ensure in Bangladesh (It works in all section as it is the right of
every citizen).
 Field based Research and Evaluation process and take action for practical solution.
 Law and order force ensuring during incident and quick response.
 Government has to take proper steps to literate people on Illiteracy on Law.
 Government should promote gender equality by means of seminar, symposium.
 Violence against women and girl‟s low monitoring and inform to proper
administration authority.
 Placing signboard and distribution strikers, leaflet, in public place.
 Placing billboard for create awareness on violence against women and girls control‟s
law.
 Anti-violence women and girls law (how it is effective) advertisement by print &
Electronic media and community radio.
 Anti-women and girl‟s violence advertisement by mobile message.
 Anti-women violence issues advertisement by town service bus and Rickshaw.
 Monitoring activities should be conducted on against women violence Law.
 Regularly informed administration law about against women and girls violating
report.
 Regularly inform and activities report should be submit media center.

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Chapter Six: Conclusion

6.1 Introduction

The dissertation paper tries to cover the whole sectors in which the right to protection from
inhuman treatment, torture and degrading punishment are occurring day by day. Besides
these, by whom such inhuman treatment mostly is caused also shows with diagram and
statistics. This dissertation paper proves that right to protection from inhuman treatment is not
implemented adequately for some reasons which is mentioned in chapter five of this
dissertation paper. Considering inhuman treatment as curse for a society and country the
concerned authority should properly take appropriate measures so that the right under article
35 (5) is not violated by any persons or law enforcement authorities. If anyhow the right is
violated then the remedy at least should be ensured by the judicial body. To be a civilized
nation state should take proper steps to stop such genocide and inhuman treatment. It is the
liability of state as well as every citizen.

6.2 Findings

This dissertation paper has successfully proved the objects and question‟s answers pertaining
right to protection from inhuman treatment, torture and degrading punishment. Besides these,
by whom such inhuman treatment mostly is occurred also shows with diagram and statistics.
The reasons of not enforcing fundamental right, loopholes or drawbacks of the laws and
regulations regarding right to protection from inhuman treatment, are also mentioned in this
dissertation paper on judicial precedents and present scenario in Bangladesh perspective (see,
clause 5.3, chapter five) are a part and parcel of this dissertation paper which is also shown in
chapter four. This dissertation paper has shown the comparative studies in a nut shell on the
position of right to protection from inhuman treatment amongst UK, USA, INDIA,
BANGLADESH and PAKISTAN under chapter three in para 3.3. Besides these,
responsibilities of International organizations and communities on protection of inhuman
treatment are merely touched through the explanation of international conventions.

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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

6.3 Achievement of the Research Objectives:

This dissertation paper has fulfilled all of it objects which is mentioned in this paper (see
chapter one, clause 1.3) The first object of this paper is to investigate the laws and
regulations regarding protection from inhuman treatment is shown chapter three where
national and international laws and conventions are discussed. Second object is to find out the
drawbacks of the laws for protecting from inhuman treatment are also shown in chapter five
under para 5.3 where the reasons of occurring inhuman treatment and reason for not
enforcing the right is stipulated. Thirdly the object is to recommend the solution of enforcing
the right is discussed in chapter five (see clause 5.4, chapter 5) The fourth object of this
dissertation paper is to outline the application of judicial pronouncement and case decision
are also illustrated in chapter four and fifth object is to analysis the international law,
convention and national laws to prevent inhuman treatment and torture from society are also
briefly discussed in chapter three along with punishments which is fixed by the laws for
violation of right of an individual.

6.4 Solution of Research Questions

This dissertation paper has answered the questions which are putted in chapter one under para
1.4. First question of this dissertation paper is whether the existing laws and regulations
regarding right to protection form inhuman treatment are effective or not is properly
illustrated by the researcher in chapter three. In a nut shell the answered is the existing laws
and regulations aren‟t fully effective because of some loopholes of laws which are also
mentioned in chapter five. The existing laws are quantitive but not qualitative. The laws
should be qualitative. Specially section 54 of the CrPC and Special Power Act 1974 give the
excess power to police and concerned authority to arrest and detain a convicted person.

The second question is that are there any loopholes or drawbacks of the right against the
prohibition of inhuman treatment is also answered through this dissertation under chapter five
in para 5.3 where the statement refers that yeas, there are some loopholes of the laws
regarding protection from inhuman treatment in Bangladesh perspective. Third question is
whether this right is properly ensured in society or state by the judicial body is also answered
in chapter five under para 5.1 and 5.2 illustrating the thirteen years statistics form 2004-2016
to prove that in a broad sense the state isn‟t properly ensured the right in society because of
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RIGHT AGAINST INHUMAN TREATMENT: BANGLADESH PERSPECTIVE 2017

political interest and also answered in chapter four where more than fifteen leading case
decisions or pronouncements are mentioned to prove that the judicial body tries to ensure the
justice. In a whole it can be said that the right isn‟t properly ensured by the state but merely
judicial body tries to ensure the right if any political influence is not engaged.

6.5 Conclusion

In a whole it can be said that the dissertation paper has successfully explained the research
objects and research questions. This dissertation includes the reasons and recommendations
so that the concerned authority can take help form this paper to upgrade the laws and
regulations due to protecting the rights to protection from inhuman treatment. Moreover the
paper not only be helpful to protect the right but also to protect or ensure the human rights
and fundamental right which is recognized by the Constitution of the Peoples‟ Republic of
Bangladesh. Specially to ensure the right and justice in favour of victim the concerned laws
like as section 54 of CrPC and the Special Power Act 1974 and many other should be
amended in rightly and judicial body should be properly independent so that the political
leader can not affect the judicial officer. Above all it is very much necessary to prevent
inhuman torture and treatment from society or a state to turn a nation into a civilized nation.

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