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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: 195
June 25, 2005

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Torture in South Asian perspective and few words

Odhikar and Ubinig

Since the adoption of the Convention against Torture by the UN General Assembly in 1984, the 26th of June is commemorated as the International Day against Torture.

Article 1 of the Convention against Torture sets out an internationally agreed definition of acts that constitute 'torture': ' The term torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions.'

Article 35 (5) of the Constitution of Bangladesh states,' No person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment.'

New measures adopted
Since the incident commonly remembered as '9/11', a trend has developed towards derogation from the rule of law in the Asian region, particularly in South Asia. The increased call of the governments in the name of speedy and secretive trials on suspects, especially with the precedent led by the US, has led to use of tactics similar to those used by the US, The counter-terrorism measures in the South Asian region have started to include the introduction of new procedures for the purpose of detention of suspected terrorist and the use of military tribunals.

New measures have also included detention based on information, including non-evidentiary information, withheld from the accused, limits on habeas corpus and similar remedies, limits on access to counsel and indefinite detention without trial. Such discrimination based on the communities on the grounds of religious, political and social backgrounds can also be seen in the Asian region in particular in India, Pakistan, Bangladesh, Burma, Thailand, Malaysia and Indonesia.

Practices in Bangladesh
In Bangladesh, like any other South Asian countries, the trend of torturing and killing people by law enforcement agencies is not an unfamiliar phenomenon, as we are familiar with the Jatiya Rokkhi Bahini (JRB), which came into force from the February 1, 1972 and became infamous for its extra-judicial executions of about 30,000 leftist opponents (as claimed by the victim organisations) till its absorption into the Army by a gazette notification dated 4 October, 1975.

In March 2004 the elite force Rapid Action Battalion (RAB), was created by amending the Armed Police Battalions Ordinance, 1979 and enacting new law the Armed Police Battalions (Amendment) Act, 2003.

It can investigate and work for all security purposes, especially as an elite law and order enforcement agency, which is to have a special focus on curbing organised crime and eliminating top criminals. Since its formation, a trend of 'death in crossfire' has been created. However, there are also an alarming number of deaths in RAB custody and a few of these can be interpreted as being political. People also got killed in the hand of police in the name of'crossfire'. According to Odhikar's documentation, in the year 2004, 169 people were killed in 'crossfire'. From January to May 2005, 168 people were killed in 'crossfire' by both RAB and the Police.

After the formation of RAB and other auxiliary forces like, Cheetah and Cobra of the police, according to some, the law and order situation has improved and the general population are apparently happy with it. But from a humanitarian and legal point of view, one cannot justify this type of killing. Every person has the right to fair trail and before any trail no one can be killed by law enforcers extra-judicially.

Trends in South Asia
Torture and extra-judicial killings are also common in other neighbouring South-Asian countries. In India, the definition of unlawful activity is vague and has been misused by the state and state authorities, especially in the case of the minority community as in the case of Gujarat and also in the case of Delhi University Arabic lecturer Syed Abdul Rahman Geelani.

Arbitrary and unlawful deprivation of life by government forces (including deaths in custody and staged encounter killings) is still continuing in India. The highest incidences were in Uttar Pradesh, Andhra Pradesh, Bihar, Chhattisgarh, as well as states with ongoing conflict in States such as Jammu and Kashmir, Manipur, and Assam.

Security forces offered bounties for wanted militants. Police and prison officers also committed extra-judicial killings of criminals and suspected criminals in a number of states. Human rights groups alleged that security forces killed numerous captured non-Kashmiri militants from Pakistan or other countries, often after torturing them, and staged many encounters, summarily executing suspected militants and civilians believed to be assisting them.

In Jammu and Kashmir, the State Human Rights Commission reportedly received 15 complaints relating to custodial deaths in 2003 and 27 complaints relating to disappearances. Human rights organisations sought to clarify these cases by submitting numerous requests to Jammu and Kashmir authorities in recent years, but received inadequate and unsatisfactory responses. According to human rights activists, press reports, and anecdotal accounts, the bodies of persons detained by security forces in Jammu and Kashmir were often returned to relatives or otherwise discovered with multiple bullet wounds and/or marks of torture. In February 2004 in the Bandipora area of north Kashmir, five civilian porters were killed after security forces allegedly used them as human shields in a gunfight with militants. The incident led to widespread demonstrations and rioting. Following the incident, Army Chief of Staff General N.C. Vij announced that the Army would no longer use civilian porters in combat operations. On March 31, 2004, State Finance Minister Muzaffar Beig and Northern Commander Lt. General Hari Prasad reported that those responsible for the incident had been punished, but gave no details.

In June 2004, Gujarat police killed three men and a woman, alleged to have been on a mission to kill Gujarat Chief Minister Narendra Modi. The National Human Rights Commission (NHRC) asked the Director General of Police and Senior Superintendent of Police in Ahmedabad to investigate. Human Rights activists challenged police allegations that these persons were linked to this plot, but the case was never fully resolved. A Gujarat court later dismissed charges against 13 other persons implicated in this case due to lack of evidence. The family members of those killed did not file petitions claiming the killings were extra judicial, and no action was taken against police involved in the killing.

On July 11, 2004, Manorama Devi, an alleged member of the People's Liberation Army (PLA) in the north-eastern state of Manipur, died while in the custody of the Assam Rifles, a paramilitary unit in the state. Officials initially denied that Devi was killed, tortured, or raped, but the post mortem found that she died of multiple gunshot wounds, was bleeding from the vagina, and had a perforated liver and gall bladder, among other injuries, and forensic tests detected semen stains on her clothes. The case prompted demonstrations and riots, and led to a serious deterioration of the security situation in Manipur. The National Commission for Women (NCW) publicised the case, and the Army ordered an investigation; however, by year's end, culpability for her death had not been established.

The killing of civilians continued during operations in Jammu and Kashmir. Human rights activists stated that accurate numbers were not available due to limited access to the region. In 2003, the Home Ministry reported 28 civilians killed, between April and June, and Amnesty International (AI) alleged that over 340 were killed during the year. The Armed Forces Special Powers Act (AFSPA) and the Disturbed Areas Act remained in effect in Jammu and Kashmir, Nagaland, Manipur, Assam, and parts of Tripura, where active secessionist movements existed. The Disturbed Areas Act gives police extraordinary powers of arrest and detention, and the AFSPA provides search and arrest powers without warrants. Human rights groups alleged that security forces operated with virtual impunity in areas under the Act.

The Unlawful Activities Prevention (Amendment) Ordinance 2004 (UAPO), which was promulgated on September 21, 2004 has encompassed the provisions of POTA and has the inevitable problem of defining 'terrorism'. The amendments of the 1967 Act include several sections taken verbatim from POTA. As a result, the government retains the power it gained under POTA to designate organisations as 'unlawful' with only a limited pro forma judicial review. The list of 32 organisations banned under POTA has been included in the amended 1967 law. The amended 1967 Act also includes, with only a light modification, Section 21 of POTA, which created a new crime of supporting a terrorist organisation. Furthermore, the government has refused to drop cases registered under POTA against more than 1,600 individuals, many of whom have been denied bail and have been languishing in jail for more than two years, for demanding equality, social justice and raising concerns on the political situation either by women, minority communities, dalits, adivasis (tribals) and opposition groups, especially in the states of Jharkhand, Gujarat, Uttar Pradesh and Tamil Nadu.

The Indian Border Security Force (BSF) has also been instrumental in killing approximately 326 Bangladeshi citizens at the border areas during the last 5 years and 5 months (since January 2000 to May 2005).

In Pakistan, the Anti Terrorism Act (amended) 2001 provides the legal framework to deal with terrorism in all aspects. This Act contains detailed provisions for the suppression of terrorism. Along with this Act, the Frontier Crimes Regulations (FCRs) of 1901 is still in force in the Federally Administered Tribal Areas (FATA). Promulgated first by the British in 1872, the FCRs have been amended a number of times, mostly before independence, but their provisions remain cruel and inhuman and are wholly inconsistent with the norms of civil society. The FCRs, as they exist today, defy all principals of justice, fair play, human and civil rights. As the recent military operations in South Waziristan have shown, entire communities have been economically blockaded or forced out of their homes and hearths for the action of few foreign Taliban members whom some of their kinsmen chose to provide shelter to. The military operation also caused the imprisonment of a number of allegedly innocent civilians, among them women and children, who belong to the families or tribes of the proclaimed offenders and fugitives wanted by the Pakistan government.

In Nepal the use of force by the Nepali armed forces against innocent civilians and students, peacefully exercising their democratic rights to assembly, association and expression, has begun since the dissolution of Parliament and King Gyanendra's takeover of the executive power by dissolving the cabinet through royal proclamation on February 1 2005; and forming a government under his chairmanship. A large number of political activists, human rights activists, journalists and students have been arrested and allegedly tortured on the grounds that they either have links with the Maoist guerrillas or are simply opposed to the King Gyanendra's regime.

In Sri Lanka the peace process is yet to see any political solution and the Muslim internally displaced persons from the LTTE held north are yet to get back to their homes or to a permanent address.

Trends in the rest of the world
The rise of xenophobia in the post cold war era has gained momentum after the 9/11 situation. This has added to the definition of 'terror' and 'terrorism' and the margin between the self-determination of the communities and nations as well as communities and individuals fighting to realise universal goal of human rights could often termed as 'terrorist' by their political opponents. In the global context racism, castes, religious hatred, increased militarisation and rampant state terror has given rise to torture.

The torture and killing in the detention centres of Abu Gareb and Guantanamo Bay are not the only examples. There are many more secret prisons in the different parts of the world to torture, to dehumanise and even to kill more victims, either because they fought against foreign occupation, expressed the intention to exercise their right to self determination or just because of their cultural or religious beliefs.

It must be noted that the small states are also facing pressure and threats to deliver economic privileges to corporations and hegemonic states, which results in the increased external vulnerability.

In conclusion
South Asian countries are trying their best to attain economic development. All of them are showing good or reasonable success in this area. Nonetheless, all the south Asian countries have bad if not extremely bad - records in the area of human rights. Torture, has unfortunately remained common practice. Large countries like India have more atrocities than their smaller neighbours, but these do not get necessary media attention.

Even though India is a large country with a big population, with various ethnic, caste and religious minorities, the number and focus of the human rights organisations there and their coverage is inadequate. There is also a tendency of not responding to and not reporting to the human rights violations i.e. torture of those areas or states where 'insurgency' exists.

In the post 9/11 scenario, Indian policy makers and the media projected Bangladesh, Nepal, Bhutan and Maldives as 'failed' and 'dysfunctional' states and argued that India should militarily intervene in those countries as and when required in order to ensure her national security.

This situation has seriously jeopardised the human rights activities in the small countries of South Asia, since the reports of torture and other kinds of human rights violations in small countries, has been used by imperial and hegemonic powers for their own gains.

In the aforesaid context we believe that strengthening the solidarity and translating the voices of the oppressed peoples and their organisations of South Asia into actions for justice, can only bring positive changes.

Odhikar and Ubinig are two Bangladeshi organisations committed to defend human rights and have prepared this article to commemorate the International Day Against Torture.


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