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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 183
March 26, 2005

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Law education

Rights based training for Police

Anisur Rahman

Police are part and parcel of the criminal justice system. Criminal justice dispensation largely depends on the police, i.e. to arrest the accused and produce him before the court, to investigate the matter, to give charge sheet/final report. The criminal justice system is followed by the natural justice, which means the accused is presumed to be innocent until his guilt is proved undoubtedly. The accused deserves constitutional protection until his guilt is proved. There is a spate of allegations of violation of fundamental rights of the accused (sometimes general people) in the hand of police. This is happening at least for two reasons, political interference and lack of knowledge of human rights as well as other laws. The police must have the knowledge of the following issues while dealing with an accused.

Human rights
For a layman, human rights are those rights that a man possesses with his birth. These inalienable rights include right to equal protection of law, freedom of religion and thought (it is to be noted that our constitution does not recognise freedom of thought), freedom of movement and association, freedom of speech etc. These are by no means an exhaustive list that the people of a democracy enjoy. No government in a democracy grants the human rights of the people but it is to protect those inviolable rights. The thought of the protection of human rights is not a thought of a day. It developed through the signing of Magna Carta, Bill of Rights 1689, American Declaration of Independence etc. The concept of protection of human rights got momentum after establishment of the United Nations. Human rights got international shape by the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948. After the declaration came into being protection of human rights becomes an international concern and all signatory states are obliged by the declaration. These rights could not be legislated away nor 'they are the subject of the momentary whim of an electoral majority'.

Constitutional rights/fundamental rights
Of the human rights those are guaranteed by the constitution are called constitutional rights or fundamental rights. For example our constitution recognises equality before law as a fundamental right (Article 27), which is also recognised as one of the human rights of a man. Constitutional recognition means that the state is under constitutional obligation to protect those rights. The fundamental rights are also enforceable by the court. For example, right to security is not incorporated in our constitution as fundamental right. Therefore, no one could establish his right to security as fundamental rights through the court of law. The Constitution of People's Republic of Bangladesh has recognised a number of human rights as fundamental rights (Article 26-44). Among them equality before law, freedom of speech, right to association, right to movement, right to religion, right to treatment according to law are mentionable. It is a unique feature of our constitution that it has recognised 'enforcement of fundamental rights' as one of the fundamental rights {article 44}. That means when one's fundamental rights are at stake he could take recourse to the court to protect it (Article 102). The state by no means could deprive him to get justice. It is noteworthy that our constitution guarantees only the political rights as fundamental rights. Civil rights are not recognises by our constitution. For example education is not recognised as the fundamental rights by our constitution though it is the most important civil rights.

While performing the duty police should take special measures that in no way one's fundamental rights is being violated. 'Right to protection of law' (Article 31) and 'safeguards as to arrest and detention' (Article 33) are mostly related to policing. When police arrest a person they must not be oblivious of the fundamental rights of the arrestee i.e. right to be informed his guilt, right to be produced before the court within 24 hours, right to defend himself through consultation with lawyer. On the other hand, when police take the arrested person under their custody they must not treat the arrestee otherwise than law, i.e. they must not torture him; treat him indecently, which undermines his dignity as a human being.

Precaution against arrest without warrant
Section 54 of the Criminal Procedure Code gives a wide authority to the police to arrest any person who the police reasonably believe to be involved in criminal activities. In such a case, the police have to disclose the source, nature of his reasonable belief based on the criminal record. The credible information of the police must not be a vague one rather they must record why they believe so to justify the arrest. The general statement that the arrestee is involved in criminal activities is not acceptable at all {Bangladesh Legal Aid and Services Trust (BLAST) Vs Bangladesh, 23(2003) BLD, HC}. The belief of a layman without any scrutiny is no more pleasing as reasonable belief. The judgement of this case is certainly a landmark decision in the history of Bangladesh (Dr. Shahdeen Malik termed it as 'Charter of Freedom' in a write up soon after the decision came into being). In this case it was directed that the arrest and investigation must be conducted within the limitation and safeguards of Article 27, 31, 32, 33 and 35 of the constitution. Police must abide by the guidelines of this case.

Statement to the police has little evidentiary value
It is a common feature that after arresting a person police produces him before the court with a prayer for remand. It is also seen that our magistrates are very impatient to allow their petition. Police always ask a remand to extract information from the arrestee. But they should understand that this extorted information has no evidentiary value. According to Article 35 (4) no person accused of an offence shall be compelled to be witness against himself. Therefore it is so clear that the information extorted by police through interrogation or torture from the accused could not be used against him in trial. So, what is the necessity to take an accused under police remand? On the other hand police could not take a confessional statement of the accused under threat or offering something under section 161 of the Cr.P.C. Statement to the police is not considerrd, without some exceptions in trial also because they are the interested party of a criminal proceeding. Police have to consider these facts when dealing with an accused person.

Juvenile justice system
Rapid industrialisation and other social factors compel juvenile to come into conflict with laws frequently. But they hardly get any special treatment from the police. The Children Act 1974 provides for juvenile justice system (treatment of children), which is different from traditional criminal justice system. The Act provides for three things, a) Empowerment of the children which means the issue of the children rights must be taken into consideration and by no means it is allowed to be violated, b) Special protection and treatment of the children that is when a child comes into conflict with law or commits an offence he will get special treatment (he must not be treated like adult criminals), finally c) State obligation towards children that means the state shall take all necessary measures to protect the children's right.

The meaning of the word 'Trial' in juvenile justice system is different from that of the criminal justice system. In the former the word means to find out whether the child is guilty only. On the other hand in the case of latter system the word indicates the procedural criminal justice system, i.e. to investigate the matter, to arrest the perpetrator, bring a formal charge against him and finally to convict him upon punishment. The core objective of the former system is not the trial of a child following punishment.

In regard to the children the reformative philosophy of punishment instead of deterrent must be followed. Children are that portion of the human being with lack of understanding and knowledge, which makes them separate from adult. Because of these lacks they are deprived of some basic rights, i.e. inter into contract. That's why they are immune from criminal responsibility. It is mentionable that the concentration of the juvenile justice system centres on the 'juvenile' instead of the 'crime'. This is a separate model of the criminal justice system where the judge has to look into the behavioural pattern of the offender in order to understand him. This system deals with separate custody, treatment of the child.

The heart of the juvenile justice system is an understanding that the juvenile are not the smaller entity of the adult. They are the distinct entity of human being that deserves some different treatments and protections. In this system the state played a role to bring the derailed children in the right track. It is rightly said that the intent of the juvenile justice system is to 'deprivation of the children instead of depravation'.

Concluding remarks
The police must take the issues aforementioned into consideration while performing their duties. Also the concerned authority should take necessary initiative to provide them human rights training. The authority obviously should consider the other necessary matters relating to police, i.e. salary, accommodation, duty hours and other benefits. We wish the police would be friend of the people. However, the onus is on the police in that case.

The author is a legal analyst as well as a lawyer.


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