Authors: Tanveer Ahmed Fahim, Biva Mosharraf and Sakin Tanvir
In
a span of merely 7 years, more than 500 lives have been unjustly lost behind
bars. Ishtiaque Hossain Jonny’s death is an ordinary, unfortunate example of
custodial death, but an exception as well. On 09 September 2020, the Court
sentenced the three policemen, who were responsible for the custodial death of
Jonny, to life imprisonment. This landmark decision is the first to be given
under the Torture and
Custodial Death (Prevention) Act, 2013 (“Act”). In this article, we
shall focus on the significance of this sentence, the precedents on custodial
death and the impact this decision can have on the law enforcement authority
and society in general.
Killing Jonny and the Fight
for Justice
On
08 February 2014, a group of 25 policemen including sub-inspector (SI) Jahidur
Rahman raided a house during a wedding ceremony at Pallabi's Irani camp area in
Dhaka and arrested Jonny and his younger brother, Imtiaz Hossain Rocky. The
informer, Sumon and two friends including one Russell called the police after
Jonny slapped him for stalking women at the programme. It was alleged that the
police tortured Jonny at the station. Jonny was admitted to a local clinic the
next day after falling sick. Afterwards, he was transferred to Suhrawardy
Hospital where doctors declared him dead.[1] On 08 August 2014, the
family of the deceased filed the present case with the Metropolitan Sessions
Judge's Court, Dhaka. The sub-ordinate court sentenced the three policemen,
including former SI of Pallabi Police Station, Jahidur Rahman to life
imprisonment and two other accused to seven years' imprisonment.[2] Alongside this, the court
awarded the three policemen the maximum compensation and fine under this Act.
In
their quest for justice, the family of the deceased have had to face
overwhelming odds; threats, intimidation and harassment was the norm. They were
even impleaded in counter cases.[3] More than a week after
Jonny’s murder, Rocky was "lucky" enough to get out of police custody
alive.[4] Jonny’s family was coerced
and bargained with by influential people and were even proposed a lump sum of
BDT 20 lac to compromise and withdraw the case.[5] This even reached the
point where the accused even filed a petition to the Hight Court Division
(HCD), of the Supreme Court of Bangladesh to get the proceedings quashed.
Initially staying proceedings for 6 months, the apex court finally rejected the
petition and ordered the trial court to complete the proceedings within 180
days of the filing of the case. Unfortunately, it still took the trial court
several years to give out a verdict.
In
recent years, there has been an explosion of the number of Writ Petitions filed
before the High Court Division (HCD), under Article 102(2) of the Constitution
of the People’s Republic of Bangladesh. There has been a growing increase in
the reliance on the higher courts, and a decrease in reliance on the lower
courts. However, there are certain condition that need to be adhered to before
filing a Writ Petition under the Constitution. One of the key components is the
“lack of any other equally efficacious alternative remedy available in the law.[6] In this context, the fact
that this case has proceeded through the usual system is an exception. On top
of that, the Court also gave the accused the highest possible punishments under
the Act.
Frightening
Facts and Figures
In June-July
2019, the Human Rights Forum Bangladesh (HRFB), Bangladesh Legal Aid and
Services Trust (BLAST)[7] brought Jonny's case to
the notice of the UN Committee Against Torture through the stakeholders'
submission in the UNCAT's last reporting cycle. Jonny's was the only known case
of the 2013 Act being put to test.[8] It is to be noted that,
the 2013 Act was placed before the parliament eleven years ago, on September
11, 2009, by Saber Hossain Chowdhury, MP, a victim of custodial torture
himself. He was determined to get the law passed in parliament, and as a result
of passing the law, the UN Convention Against Torture was given effect to; 15
years after acceding to the Convention.[9]
According to
Ain-o-Salish Kendra (ASK),[10]
53 people (31 under trial and 22 convicted) died in jail custody during the 8
months of custody from January to August, 2020.[11] Looking at the death rate
of the year 2013 when the 2013 Act was passed, over 60 people died in jail
custody.[12] These harrowing facts and figures not only make the average citizen insecure in
their own nation, but also bring to question the very existence of a civilized
nation.
Analyzing the rates and patterns of custodial deaths in Bangladesh from 2014 to the first quarter of 2018, the Asian Legal Resource Centre (ALRC), a rights organization based in Hong Kong has noted that “Bangladesh is a country where torture is institutionalized”.[13] It further added that, “The notion of law-enforcement
does not exist without the use of torture at the core of its functionality.
Crime investigation and torture are synonymous.”[14] The report puts it remarkably when it states that
“The influential political, bureaucratic and financial elites keep the police
involved in torture so that the practice helps gaining their desired benefits.”[15] This further motivates the police, who “carry the
colonial torturous legacy, to continue torture in exchange of administrative
blessings and financial proceeds as bribes.”[16] Reiterating the same, Sheikh Hafizur Rahman Karzon, a
Professor of Law at the University of Dhaka said that, “custodial torture was
often carried out for political objectives to suppress opposition forces”.[17]
Precedents: What we
learned and what we need to learn
The death of Jonny is
not the first instance of custodial death, nor is it in any way the last.
However, there have been certain landmark decisions by the apex court from
which we can receive guidance and get a glimmer of hope. The most notable of
which is the 1990 case of Shaikh Baharul Islam v The State.[18]
The
victim Saiful Islam Arun was taken to the Ramna police station, Dhaka and was
severely beaten by the police. He succumbed to his injuries and died in police
custody the next day. The significance of the case lies in the fact that, it
was not possible to prove the case of Arun's murder by eye witnesses since he
was held within the walls of the police station by police personnel who alone had
the special knowledge as to how he met his end.
Seldom, in the
instances of police torture or custodial death are there any direct ocular
evidence of the complicity of the police personnel; only they can reveal the
circumstances in which a person in their custody had suddenly passed away.
“Bound as they are by the ties of brotherhood, it is not unknown that the
police personnel prefer to remain silent and more often than not even pervert
the truth to save their colleagues”.[19]
This case is a prime example as to how one after another police witnesses
feigned ignorance regarding the whole issue.
Owing
to the rising cries of recent times, the case of The State v Md. Moinul
Haque and others[20] must be mentioned. In
this case, the unfortunate victim was a maid servant named Yasmin, who was
brutally gang raped and murdered while in police custody. Helpless and hopeless
in a van, she was subjected to barbaric treatment by those personnel who were paid
from the public exchequer for her protection. In the facts and circumstances of
the case, this case aroused a great sense of revulsion in the common man and
the men in uniform deserved the most extreme of punishments. Similarly, in the
case of Kanta Tiwari v State of M.P.[21] a young seven-year-old child was
raped and choked to death while in police custody. Approving the death sentence
of the perpetrators (the maximum sentence for such a crime), the Indian Supreme
Court held that the sentence of death was eminently desirable not only to deter
potential perpetrators, but also to be emphatic to society’s abhorrence to such
transgressions.
The
‘Rubel Killing Case’[22] is a landmark example of
the abuse of police powers, torture in remand and custodial death. The
petitioners argued that the police routinely abuse the authority granted under
sections 54 and 167 of the Code of Criminal Procedure, 1898 (CrPC). These
provisions suffer from vagueness and allow for arbitrary abuse of power. It was
further argued that the Court should outline safeguards to prevent or curtail
police abuse of powers and arbitrary actions by Magistrates, which constitute
numerous violations of citizens’ fundamental rights to life and liberty, to
equal protection of law, to be treated in accordance with law and to be free
from cruel, inhuman and degrading treatment and punishment as guaranteed under
Articles 32, 27, 31, 33 and 35 of the Constitution respectively. The Court laid
down a comprehensive set of recommendations regarding necessary amendments to
both sections of the CrPC, 1898 along with the Police Act, 1861, the Penal Code
1860, the Evidence Act, 1872, and directed that these should be acted upon
within six months. It also laid down a set of fifteen guidelines regarding the
exercise of powers of arrest and remand. However, many years have gone by
without any proper implementation of either the decision of the HCD[23] or the Appellate Division
(AD).[24] Echoing this concept, the
landmark Indian case of Nilabati Behera v State of Orissa and Ors.,
reaffirms that “the duty of care on the part of the State is strict and admits
of no exceptions. The wrongdoer is accountable and the State is responsible if
the person in custody of the police is deprived of his life except according to
the procedure established by law.”[25]
Conclusion
The
death of Jonny is a shining example where the lower Court has finally shattered
the stereotype of giving out 'parrot like' orders authorizing arbitrary
detentions which eventually lead to custodial violence and even death.[26] The proactiveness of the
Court to order judicial investigation under section 5(2) of the 2013 Act,
enabling third parties to file complaints under sections 6 and 7(1) of the 2013
Act, will definitely help in ensuring the continuation of the trend initiated
by the present verdict.[27] It is also a case which
reaffirms the belief in the people that an equally efficacious remedy can be
received from the lower judiciary as well, and not only be means of Writ
Petition from the Supreme Court. The granting of compensation and fines are of
utmost significance since it acts as a deterrence for potential perpetrators
and hinders their malicious methods to delay the administration of justice.
Finally,
it goes without saying that an instance of custodial death is no ordinary
death. Such a murder is a dagger at the heart of civilization and the rule of
law. It is perhaps the worst of crimes in a civilized society governed by the
rule of law.[28]
It is imperative that we utilize the decision in Jonny’s murder as a beacon to
light the way to a more proactive, brave and safe society for generations to
come.
References:
[1] Star
Online Report, ‘Custodial death: Verdict on case against 3 ex-policemen, two
others on Sep 9’ (The Daily Star, 24 August 2020) <www.thedailystar.net/custodial-death-verdict-case-against-3-ex-policemen-two-others-september-9-1950073>
accessed 25 September 2020
[2] Star
Online Report, ‘A historic verdict: 3 policemen get life term for custodial
death’ (The Daily Star, 9 September 2020) <www.thedailystar.net/city/news/custodial-death-jonny-3-policemen-get-life-term-2-get-7-years-jail-1958473>
accessed 25 September 2020
[3] ibid
[4] Taqbir
Huda, ‘Justice for Jonny: Ending impunity for custodial torture at last’ (The
Daily Star, 11 September 2020) <www.thedailystar.net/opinion/justice-practice/news/justice-jonny-ending-impunity-custodial-torture-last-1959193> accessed 25 September 2020
[5] Ali Mashraf, ‘Jonny’s custodial
death case: Lessons learned from the verdict’ (The Daily Star, 29
September 2020) <www.thedailystar.net/law-our-rights/news/jonnys-custodial-death-case-lessons-learned-the-verdict-1969413> accessed 07 October, 2020
[6] Nurun
Nabir Sarker v Secretary, Ministry of Education and Others (2016) 68 DLR
125
[7] BLAST was established in 1993 as a
free legal services organization in Bangladesh, and it is one of the largest
legal services organizations in the country, operating in over nineteen
districts.
[8] ‘Justice
for Jonny: Ending impunity for custodial torture at last’ (n 4)
[9]
‘Bangladesh at UNCAT: Dhaka urged to implement recommendations’ (Commonwealth
Human Rights Initiative, 5 August 2019) <www.humanrightsinitiative.org/press-releases/bangladesh-at-uncat-dhaka-urged-to-implement-recommendations>accessed
06 October, 2020
[10] Ain o
Salish Kendra (ASK) is a non-government legal aid and human rights organization
was established in 1986 to provide free legal services to the poor women,
working children and workers in Dhaka city.
[11] ‘Death
in Jail Custody Archives - Ain O Salish Kendra (ASK)' (Ain o Salish Kendra
(ASK), 2020) <www.askbd.org/ask/category/hr-monitoring/death-in-jail-custody/> accessed 18 September 2020
[12] ibid
[13] ALRC
News, ‘BANGLADESH: Law on torture is useless in a broken justice mechanism’ <www.humanrights.asia/news/alrc-news/human-rights-council/hrc37/alrc-cws-37-005-2018/>
accessed 25 September 2020
[14] ibid
[15] ibid
[16] Arifur
Rahman Rabbi, 'The Ugly Truth About Custodial Deaths' (Dhaka Tribune, 30 May
2018) <www.dhakatribune.com/opinion/special/2018/05/30/the-ugly-truth-about-custodial-deaths>
accessed 15 September 2020
[17] ibid
[18] Shaikh
Baharul Islam v The State (1991) 43 DLR 336
[19] ibid
[20] The
State v Md. Moinul Haque and others (2001) 21 BLD 465
[21] Kanta
Tiwari v State of M.P. (1996) 6 SCC 250
[22] Bangladesh
and Ors. v Bangladesh Legal Aid and Services Trust (BLAST) and Ors (2017)
69 DLR(AD) 63
[23] Bangladesh
Legal Aid and Services Trust (BLAST) and others v Bangladesh and others
(2003) 55 DLR 363
[24] Bangladesh
v BLAST (2017) 69 DLR (AD) 63
[25] Ibid
[26] Bangladesh
v BLAST (n 23)
[27] ‘Jonny’s
custodial death case: Lessons learned from the verdict’ (n 5)
[28] D.K.
Basu v State of West Bengal (1997) Cri LJ 743
Authors' Description
Tanveer Ahmed Fahim, Biva Mosharraf and Sakin Tanvir are members at the ‘Editorial Board’ of DULPR.
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