On Remand and Custodial Deaths

Published in The Independent, July 21st , 2010
M. Serajul Islam

In a criminal matter, remand is the grant of a request of the law enforcing agencies to take an accused to custody for questioning when a judge finds there is reason for it after a preliminary hearing. In the context of Bangladesh’s politics however, the word remand has achieved a great deal of notoriety. It is something that stinks. It is to the credit of the Caretaker Government that they have succeeded in making remand so utterly despicable in Bangladesh.

The reason remand has become unacceptable is because during the emergency, people have been tortured on remand to get them to agree to what the law enforcing agencies wanted. There are all sorts of horror stories that people who have been taken on remand have said in the media. Some of the people who have spoken are politicians and individuals of high social and political standing and there is no reason to believe that any of them lied. We are again witnessing the use of remand in the context of high profile individuals and politicians that is bringing back memories of the emergency that to most of us was a nightmare that we prayed would never again come back to haunt us. This has many of us concerned whether we are regressing back to the emergency days.

Remand is a requirement of the law. The prosecution needs to take an accused in custody for questioning to find out facts. But there are a few things happening with remand that does not make sense. In high profile cases, remand is sometimes accompanied by violation of human rights. Some accused are tortured either physically or mentally to break them down to tell the interrogators what they like or want to hear. However, information gathered from the accused under duress, threat or torture can be used in a trial only when recorded later in the presence of a magistrate. The accused will certainly deny such information instead of confessing to it when a magistrate is present. If the accused confesses, then there would be reason to believe that threat has been used by the law enforcing agencies. This makes acquiring information by torture in one form or another difficult to understand as it ultimately does not help prosecute an accused. In the public mind, information revealed by an accused on remand is always taken negatively.

Some of the torture stories on accused on remand make one think about the type of government we have achieved after making so much sacrifice for a democratic government and a democratic social system. These days another burning topic in the country is the number of people dying while in custody of the law. Although such deaths are not related to accused taken on remand, nevertheless these occur in the hands of the same custodians of the law who question and torture accused on remand. This has added a new dimension to apprehension of those whose close ones are granted remand by the judges.

It is good to see that in most recent days, the government has reacted positively to public concerns about deaths of accused people while in custody. In the case of the killing of the auto rickshaw owner of Nayatola last month that had created quite a sensation, five policemen of the Ramna Thana including the Officer-in-Charge have been sued following a case file in the court of the Metropolitan Magistrate. Earlier, four policemen of another police station were also sued for another custodial death. Since the last BNP Government, custodial deaths have become a normal way of doing business by the law enforcing agencies. We have been constantly fed on stories to explain such deaths that only those giving out the stories could believe. Such stories are absurd because the same scenario is depicted in each of the deaths; that the accused is taken to some spot in pursuance of revealing some details of a crime where his accomplices suddenly attack the law enforcing people and in the ensuing “cross-fire”, the accused is killed. While hundreds of such accused are killed one after another in the so-called “cross fires”, the law enforcing agents never suffer even a minor injury! The stories that the law enforcing agencies give to the media on custodial deaths are an insult the intelligence of the public.

To be fair though, there was some kind of acceptance among the public for the custodial deaths when it started because politics has created too many criminals whom the law is unable to punish in the due process. The law enforcing agencies however have gone overboard with the indulgence of the public. It is not that they are killing just the hardened criminals; they are also being accused of killing innocent people for making money as has been revealed in the case of the Nayatola murder. Today, the public opinion is totally against custodial deaths.

How far the Government’s nod to satisfy public concern over custodial deaths will go to deal with a problem that has just not domestic repercussions but international is yet to be seen. The US Ambassador has most recently said that his government is watching custodial deaths with concern. For the short term, custodial deaths will no doubt be less. Action against the police as seen in a few recent instances will restrain the law enforcing agencies but it will be too optimistic to believe that it will go away altogether unless some other steps are taken by the Government. Already, a new dangerous development is taking place; dead bodies are appearing of people who have been in conflict with the law. It is extremely important to investigate whether these are simple cases of murder or whether the law enforcing agencies have any hand in such deaths. The public is inclined to believe the latter. Is something more sinister emerging to replace custodial deaths?

The issue of remand and custodial deaths must be seen in the context of the law for removing the public apprehension of criminality that has come into the process. One way of achieving this would be to ensure that the law enforcing agencies are not allowed to question anyone in custody either on remand or otherwise without the presence of the lawyer of the accused. In legal systems that are matured, the law enforcing agencies have no right to question an accused without his/her lawyer. . We need to have this in our legal system if it is not there. At the same time, we should also amend our laws so that any evidence gathered from an accused without the presence of the lawyer for the accused is not allowed to be produced in court as evidence.

It is politics that has in the first instance made remand and custody such despicable concepts of the law in Bangladesh because the party in power has always encouraged the law enforcing agencies to abuse both, to which the latter then added their own abuse and corruption. It is in the government’s hands to deal with the issues above politics as it is in its interests to do so. Many leaders of AL have suffered miserably on remand during the emergency and they have a duty to set things right because remand serves only vindictiveness and ulterior political motives in the way it is used in Bangladesh. Remand in its current form has made politicians of all our major parties suffer which is another reason why the present government with past experience to guide them should make remand transparent and civilized and free it from abuse by the law enforcing agencies.

In case of the custodial deaths, the ball is entirely in the Government’s court. It is just not that those in whose custody such deaths occur should be sued; till they prove their innocence in a court of law they must be treated no better no worse than the members of the public against whom similar charges are brought. Custodial death is pure evil and a Government with any sense of morality and legality has to banish it to claim that it is civilized. Till transparency is brought to the process of granting remedy and custody, the judges have a major role to play to ensure that the law enforcing agencies remain within the bounds of the law while accused are with them on remand and in custody.

The writer is a former Ambassador to Japan and Egypt.