October 2007 - Volume 1, Issue 5

HUMAN RIGHTS OF ACCUSED WOMEN IN CRIMINAL JUSTICE IN BANGLADESH

Md. Abdul Hannan (1), Md. Nazrul Islam Mondal (2), and Md. Shahidul Islam (3). Department of Law & Justice, University of Rajshahi, Rajshahi-6205, Bangladesh Department of Population Science and Human Resource Development, University of Rajshahi, Rajshahi-6205; Bangladesh. Department of Law, International Islamic University Chittagong, Chittagong; Bangladesh. Correspondence to: Dr. Md. Nazrul Islam Mondal Department of Population Science and HRD University of Rajshahi Rajshahi-6205 Bangladesh Phone: +88-0721-751217 Mobile:+88-01716389187 E-mail: nazrul_ru@yahoo.com

ABSTRACT Laws are made with the intention to reduce women-related crime and our main aim of this study is to give vent to the inhuman condition where the accused women are found to be victims of cruel and heartless treatments in the jails. Our study is also related to human rights and in criminal justices especially, where accused women chained in the jails, experience so much untold and heartless cruelty.

Key words: Human rights, accused women, criminal justice, Constitution of Bangladesh.

INTRODUCTION

Bangladesh is a densely populated country with limited resources. The women constitute nearly 50% of the total population and about 74.4 millions female population live in this country; among them 37% aged less than 15 years, 52% aged 15-49 years and only 11% aged 50 and above and the life expectancy of females is 62 years [1]. The term 'human being' is inextricably and indispensably related to two basic concepts, male and female, in the absence of one, the other is meaningless. Male and female, are given protection against violation of human rights equally regardless of their origin, place of birth, nationality or other factors. However, any of those human rights guaranteed as fundamental human rights may be subjected to restriction, suspension or curtailment for several reasons. Accusations brought against a human being is one of the other mentionable grounds, which may be a cardinal factor for the restriction, suspension or curtailment of any of the rights guaranteed to him/her as fundamental human rights. It does not mean the total curtailment, suspension or restriction of the right altogether. Male as well as female segments of the society undeniably have rights even in the event of their being treated as accused. Thus the main objective of this study is to ponder over those rights guaranteed to a woman accused of a criminal offence.

2. CONSTITUTIONAL GUARANTEES OF THE WOMEN ACCUSED

The Constitution of Bangladesh contains some provisions relating to the rights of the accused, either male or female. The Constitution provides that all are equal before law and entitled to equal protection of law [2]. The implication of the term equality before law and equal protection of law is that nobody shall, on the grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition. Equal treatment in the courts of law by the authority has been guaranteed to every citizen and non-citizen, male or female alike. Everyone has been endowed with the protection of law and it has been guaranteed that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law [3]. So, everybody is subject to same treatment regardless of sex in the eye of law.

Anybody's life or personal liberty cannot be curtailed provided the provisions of law for the time being in force, which provide for such infringements [4]. Arrest and detention issues have been properly delineated in the said Constitution. It has also been said that every arrested person shall be communicated with the grounds of his/her arrest within twenty-four hours excluding the time necessary for the purpose of carrying the arrestee to the nearest Magistrate Court from the place of such arrest [5]. Every arrestee shall be provided with the facilities of the right to consult and be defended by a legal practitioner of his/her choice [6]. So, the accused irrespective of sex is on an equal footing, and entitled to such rights. These rights, guaranteed to an accused whether male or female, are not absolute and beyond any limitation. Any person who is arrested under the preventive detention order may be denied any of those rights. An accused is not to be prosecuted and punished for the same offence more than once and it is equally applied to both male and female [7]. It is one of the fundamental rights of an accused to be punished for the commission of an offence which is a punishable offence under the law in force and he/she should not 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 [8]. Every accused either male or female enjoys the right to a speedy and public trial by an independent and impartial court or tribunal established by law [9]. No person accused of any offence is compelled to be a witness against him/herself [10] while no one is to be subjected to torture or to cruel, inhuman, or degrading punishment or treatment [11].

3. WOMEN AS ARRESTED AND DETAINED PERSONS

A person may be imprisoned either as an arrested or detained person. Either male or female may fall into this category. The laws regarding arrest and detention are not similar. There exists a separate law to deal with each of the issues. In Bangladesh, the Code of Criminal Procedure (Cr.P.C.), 1898 deals with the provisions regarding arrest.. Chapter V of the said Code expresses the provisions of arrest in Bangladesh [12]. Under this chapter arrest may be made generally [13] and it may also be made without warrant [14]. Both male and female may be arrested under the provisions of this chapter. While arresting anybody under these provisions, the Police Officer or person concerned making arrest has been empowered to make actual touch of the body of the person to be arrested [15]. In case of women the female police would should touch the accused but the practice is different from existing law. The Police Officer or person concerned making the arrest has also been allowed to use all necessary means to ensure the arrest if the person to be arrested makes any endeavour or attempt to evade the arrest [16]. The Police Officer or person concerned making the arrest has also been empowered to cause the death of the person to be arrested in such situation if he/she is accused of an offence punishable with death or with imprisonment for life [17]. Again a Police Officer has been empowered to arrest any person without an order from a Magistrate and without a warrant under the provision of Section 54 of the Cr. P. C. [18].

On the other hand detention is made following the provisions of the Constitution of Bangladesh. Article 33 of the said Constitution speaks of the provisions regarding detention of any person [19]. Under this law, any person whether male or female may be arrested and detained before committing any cognisable offence if reasonable apprehension exists in the mind of the authority that he/she may commit such offence if he/she is allowed to move freely.

Anyway, both male and female who have been arrested and detained both under general and special laws have some basic human rights. It is a common provision that the female prisoners should be separated from the males. Again, an arrested or detained woman who is pregnant should be given special care and attention. If a person is arrested under general law following the order of a Magistrate or without the order of a Magistrate, he/she would be placed before the Magistrate within twenty four hours excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. He/she should be communicated with the grounds of such arrest [20]. But this right has been denied to a person who has been detained or arrested under any law providing for preventive detention [21].

4. SEARCH AND SEIZURE OF WOMEN ACCUSED

Due to the difference of sex, women need to be searched in a special way and the process of searching of a woman is totally different from that of a man. There exists particular provisions' regarding the search of women accused. Search may be of two kinds; the place suspected to be the abode of the accused may be required to be searched in order to find out and ensure about whether the accused is actually there. In that situation, the person acting under a warrant of arrest, or any Police Officer having authority to arrest has reason to believe that the person to be arrested has entered into, or is within, any place, the person residing in, or being in charge of, such place, shall, on demand of such person acting as aforesaid or such Police Officers, allow him free ingress thereto, and afford all reasonable facilities for a search therein [22]. If the demand mentioned above is not fulfilled then the person acting under a warrant of arrest or the Police Officer is empowered to break open any outer or inner door or window of any house or place, whether that be of the person to be arrested or of any other person [23]. If that place where the accused is suspected to be residing is an apartment in the accused's occupancy of a woman, not being the person to be arrested, who according to custom, does not appear in public, such person or Police Officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it. After arrest is made, the arrested person, male or female, may be searched by the Police Officer arresting the accused or in case of private individual, the Police Officer to whom the private individual makes over the arrested person and the search should be made in a safe custody [24]. All articles other than necessary wearing apparels found upon him may be searched. The female arrestees are, in a bit, taken under special provision in this case. If it becomes necessary to cause a woman to be searched, another woman shall make the search, with strict regard to decency [25]. So, the safeguards as to search of an accused woman by the Law Enforcing Agency (LEA) reveals that while searching any arrested woman, the rules of decency that is the assurance of honesty, politeness in behaviour that follows the accepted moral standards and shows respect for others should be strictly followed to its entirety. Another meaning of this is that while searching an accused woman utmost respect and honour have to be shown to the magnanimity of her privacy. Inviolability of her privacy as a female should be given due respect [26].

5. WOMEN ACCUSED AT FAIR TRIAL

Right to a fair trial is one the fundamental human rights of every individual. Every individual should enjoy the facility to get justice regardless of the difference of sex, race, caste, colour, place of birth and so on and so forth. The Constitution of Bangladesh says that all are equal before law and are entitled to equal protection of law [2]. Every human being should be treated responding to all of the principles of natural justice. The women accused shall be provided with the right to consult with a lawyer of her own choice and no one shall be deprived of that for the sake of fair trial [5]. Each should be treated on the basis of the law in force at the time of the commission of offence [7]. None of the accused in police custody shall be prosecuted and punished for the same offence more than once [8]. Speedy and public trial by an independent or impartial court or tribunal established by law is a basic human right and none should be denied of that [9]. The accused under trial shall be guaranteed the right of not to be a witness against herself [10]. The accused if convicted shall not be subjected to torture or to cruel, inhuman, or degrading treatment or punishment [11].

6. RIGHTS OF WOMEN PRISONERS

The life of the prisoners both male and female in Bangladesh is regulated by the provisions set out in the Jail Code. The male and female prisoners are generally classified into under-trial prisoners and convicted prisoners. Besides, there also exists provisions for the children and juvenile prisoners. Life of each class of the prisoners is regulated by some general and special type of provisions contained in the Jail Code. The Jail Code provides that the female prisoners shall be kept in a ward totally separated from the male prisoners and even the under-trial female prisoners, if possible shall be kept apart from the convicts. There shall be a separate hospital for the female prisoners. Everything shall be conducted by the Jailor in the female enclosure. In this regard, the provisions of the Jail Code run as follows:

Female prisoners shall be rigidly secluded from the male prisoners, and the under-trial females shall, if possible, be kept apart from the convicts. The female ward shall be so situated as not to be overlooked by any part of the male jail; and there shall be a separate hospital for sick female prisoners within or directly adjoining the female enclosure. They shall not be required to attend at the jail office. All enquiries and verification of their warrants shall be conducted by the Jailor in the female enclosure [27].

Whatever might be the provisions for women prisoners, for their safety, the condition is not up to satisfaction. The condition of women prisoners in Bangladesh is worsening day by day. The women are not safe either in society due to torture perpetrated by the miscreants of society or in police custody or in prisons because of numerous reasons. The female prisoners are being subjected to the violation of their human rights through rape, molestation, and indecent behaviour by the members of the LEA. Even the safeguards provided by the Bengal Jail Code, because of their being female are not being provided to them. They are subject to all kinds of torture either physical or mental. Yasmin rape and murder case, the Sheema Chowdhury rape and murder case, are outstanding examples out of many by the members of the LEA. Besides these, torture through beating and kicking has been one of the ordinary means of torture of the women accused by the LEA. Out of fear of extreme torture, the female detainees are venturing the risk of running away from police custody at the dead of night. The following incident may be taken into consideration in this regard.

A woman of village Mulbari under Ghatail Police Station in Tangail district fled from the Police Station (PS) in apprehension of torture at midnight of 27 January in 1999. The victim was identified as Khodeza Khatun (37), wife of Abdus Salam of the above-mentioned address. The husband of the victim and local people told the BRCT Fact-finding team on 11 July 1999 that police of Ghatail PS led by SI Mamun arrested his wife Khodeza Khatun at about 11.00 PM on 27 January 1999 on the charge of alleged kidnapping of a girl. Police broke the door of their house, entered into the room, kicked and beat Khodeza when she was alone in her house at that night. Police took her to the PS and could not put her in the female custody of the PS because both of the custodies of male and female were overcrowded. Police asked her to stay outside the custody. At the dead of night when Khodeza got the sentry slumbering, she managed to flee from the PS. BRCT conducted a Fact-finding mission on 10, 11 and 12 of July in 1999 following a report published in a Dhaka based daily news papers which alleged that Khodeza was killed by police and her dead body was concealed. The allegation of the newspaper did not prove true while the husband of the victim, Abdus Salam, asserted that his wife had come back home after a lapse of more than five months [28]. So what is manifested by the above-mentioned incident is that torture of every kind by the police is a trauma for the detainees both male and female alike.
Rape in police custody has been rampant in our country by the very policemen who are supposed to protect them from such torture. In 2000, members of the LEA raped seventeen women [29].

Again in jails, the women prisoners are treated like a male prisoner. The women prisoners are thrown into the police van after arrest where they have to go along with the male prisoners and no special measure for their carriage is taken to protect them from abuse. In Bangladesh, there is a scarcity of women Police Officer who are supposed to deal with the women prisoners. For this reason, within 24 hours of arrest, the women prisoners often get victimized by the middlemen who come in between the process to secure their release.
Torture has not been limited to physical infliction only. The female prisoners of Bangladesh have to undergo mental torture due to the ill treatment of the members of the jail authority. Mental harassment is a constant picture of the jail inmate of Bangladesh. Severe mental torture is inflicted upon them. The inhuman mental torture can be pictured out through the following incident. "... one day a jail inmate, a young girl, received fried rice and chicken from her home through police. As a female warden saw her taking the food, she rushed to her and kicked the plate down. She hurled abuses at the girl in a very rude way. Unnerved by the abusive behaviour, the girl broke down in tears" [30].

This incident is not an isolated incident in the prisons of Bangladesh rather it has become a common picture for the jail inmates in Bangladesh. As human beings prisoners deserve to get minimum congenial atmosphere in the prisons. It means that every prisoner male or female should have proper and adequate space facility, medical care and other necessities. Proper supply of food and drinking water should be ensured.

In this connection the provisions of the Bengal Jail Code say that, "In the female division of every jail there shall be a block of cells sufficient in number for use as punishment cells and to afford separate accommodation for female under-trial prisoners. A female under-trial prisoner may, at the option of the Superintendent, if cell accommodation is available, have the choice of occupying a cell in the female enclosure instead of being confined in the under-trial prisoners ward: provided the arrangements prescribed in Rule 954 regarding the guarding of cells in the female ward and the custody of the keys of these cells can be made" [31].

It is to be mentioned regretfully that the prisoners in Bangladesh suffer from lack of adequate space facility. They are not given enough space to satisfy the minimum requirement for health. Statistics collected from government and non-government organizations showed that the total capacity of the jails in the country is about 25,000; but now there are over 75,000 inmates in the prisons and accommodation available for female prisoners in countries (in 64 prisons) are 1051; but the number of inmates are 51700 [30]. The picture of the plight of women prisoners in Bangladesh is that they are in inhuman condition in the prisons. To ensure the human rights of the women prisoners, adequate space facility should be provided to them.

The provisions of the Jail Code in this context are very clear. According to the Jail Code, no male officer shall have any entrance to any female prisoners' enclosure and if unavoidably necessary, he may enter the same with company of any female warder. In this connection, the Jail Code provides that, "No male officer of the jail shall on any pretext enter the female prisoner's enclosure alone or unless he has a duty to attend to there. If a male officer has to attend to any duty in the females' enclosure and there is a paid matron or female warder, he may enter the females' enclosure in her company, and shall be accompanied by her to whatever part of the female jail he may have to go; if the matron is a convict, he shall be accompanied by a Head Warder, and the two shall not separate whilst in the females' enclosure at night, the Head Warder on duty shall call the Jailer, and these two officers together, shall enter the enclosure. Warders acting as escorts to official visitors must remain outside the enclosure while prisoners are being inspected" [32].

In the police stations the existing number of female Police Officer is insufficient to treat women prisoners. Though the provisions of the Jail Code very specifically deal with the issue that the women prisoners be totally secluded from the male prisoners, implementation of the said provisions is far beyond reality.

Privacy has to be maintained strictly and the wilful violation of this strictness is the violation of the guarantee as specified and endorsed by different national and international instruments [26]. The provisions of the Jail Code assert that the privacy of the female prisoners has to be strictly maintained and in no way is it be whittled down. For the purpose of having foot prints, finger impressions of a female prisoner or to photograph or to measure her, she shall not be brought out of the enclosure and while doing so, the Police Officer and the Deputy Jailer or a Head Warder shall be in company of a matron or of the female convict warder or overseer in charge [33].

Right to association is one of the basic human rights as loneliness is the cause of instrumental pain and may lead to mental disorder. This basic human right has also been guaranteed to the female prisoners. If there is only one female prisoner in the ward, she shall be allowed to enjoy the visit of her female friend. The Jail Code in this regard provides,

When there is only one female prisoner in the female ward and there is no female warder, the Superintendent shall arrange to allow a female friend to visit the prisoner and live with her in the jail. If the female prisoner has no friend who will stay with her, the Superintendent shall entertain a female as an extra warder to keep her company in anticipation of the Inspector-General's (IG Prison) sanction [34].

Provisions have also been provided to protect the female prisoners from any sort of harassment by the male prisoners or the male staff of the jail. For this purpose it has been provided by the Jail Code that the keys of the female division shall be under the custody of the paid matron or female warder during the day and at night be under the custody of the Jailer and the keys shall remain in her custody until required next morning for the opening of the female wards [35].
Again, for the maintenance of privacy it has been provided by the Jail Code that the locks of the female cells and wards shall be different from those in use in other parts of the jail and the same key shall not be used to unlock the other parts of the jail. The keys shall be under an old and trustworthy officer if there be no paid matron or female warder [36].

Right to observe the religious institutions has been guaranteed as one of the fundamental rights in the Constitution of Bangladesh [37]. It has also been declared as one of the fundamental human rights in the Universal Declaration of Human Rights, 1948 (UDHR) [38]. The Constitution of Bangladesh provides freedom of religion. However, this right to observe the religious institutions has not been guaranteed by the Jail Code entirely. According to the provisions of the Jail Code, at the time of physical training the women prisoners are to remain bare head, hair flowing and with the upper part of the body covered with a kurta only [39].

This is the direct violation of the provisions of Islam regarding the dress of the Muslim women. According to the tenets of Islam, women of adult age or women who have attained puberty shall maintain the strict principle relating to dress. Here, they have to cover their heads with scarf. But the provisions of Jail Code relating to parade of women prisoners express that they have to remain with bare head while they are in parade. This is a violation of the constitutionally guaranteed fundamental right and also the human right declared in the UDHR. However, it does not mean that the women prisoners are all the time asked to remain with bare head. Inside the prison cell, at all other time excluding that of necessary for parading, they are supplied with necessary wearing apparels and are allowed to maintain and observe their religious institutions.
The right to have proper dress meeting the demand of the seasons of Bangladesh, the female prisoners, like all other prisoners, are supplied with necessary wearing apparels under the provisions enumerating in Rule 1159 of the Jail Code. Rule 1159 dealt with the dress of all prisoners in division III sentenced to rigorous imprisonment while Rule 1165 deals with that of the convicted prisoners in division II sentenced to rigorous imprisonment [Appendix-A].
To enjoy the environment suitable for health and hygiene is another human right. This right has also been guaranteed by the Jail Code. As per the provisions of the Jail Code the hair of the female prisoners shall not be cut without the order of the Medical Officer where he considers this necessary on account of vermin or any disease. They are also supplied with comb and four necessary towels or napkins each.

7. PLIGHT OF FEMALE PRISONERS
Laws are made with the intention to reduce crime against women. Offences against women have taken modern aggravated forms, which were more or less absent in the past. Crimes against women have risen after independence. Women in Bangladesh are facing not only aggravated forms of conventional crimes but also new types of crimes. The jail authorities behave badly with convicts or under-trial prisoners. The prisoners suffer torture and various types of abuses. The prisoners are helpless. They can hardly protest. Interestingly, many male prisoners do the same with the female inmates. Male and female prisoners live in separate wards there. However, there is a door connecting male wards with those for the female prisoners. Veteran male prisoners often bribe guards of the female wards and coerce them to have sex with female inmates. Some female prisoners willingly have sexual contact with the men in the hope of getting some facilities. Jails in the country are overcrowded. While many spend time outside their rooms, the real problem occurs when they come back at night to sleep. A 2004 report says more than 74,000 prisoners including more than 2,000 female are kept in the country's 64 jails. At Dhaka Central Jail were lodged more than 11,000 inmates and over 300 of them women. In a paper recently presented at a seminar on Human Rights and Police Custody, sponsored by Human Rights Organisation "Odhikar", researchers Jesmul Hasan and Sajjad Hossain say, "Women and children are also not spared torture in jail. In many police stations of Dhaka City there is no separate hajat for women and children. In some cases, female detainees are kept in the offices of male police officers. Women are subjected to various types of abuse. In Dhaka, there are too few female police officers compared to the need. A police station has only two or three female officers - not enough. Some police stations have to do without female officers. So, male police officers deal with the female detainees, including arrests, interrogation and investigation.

Approach to AIDS Prevention:
"There are separate wards/cells for female inmates in jails. Yet the female inmates are not safe there. They are victimised by male officials and supervisors. Such female inmates do not get justice because of abuses by the law enforcers. Women are arrested also under Dhaka Metropolitan Police Ordinance. A female detainee is supposed to be taken care of by a female police officer. But this rule is violated, as there is shortage of female police officers. As a result, female detainees are subjected to abuses and maltreatment. There are about 5.50 lakh cases pending in the courts. The process of trial is slow. There are at least 30 hajatis in a room, which is good for only two female hajatis. At night, the women just remain standing on their feet, as there is no room for sleeping. Any abuse of female prisoners in jail is to be condemned. It is not desirable even though it happens. He urged the media to create awareness against such maltreatment.

8. CONCLUSION
Violence agonist women is increasing and indicates generally that the amount of different crimes against women is so high that the time has come to introduce measures to eradicate them. Clearly, the need of the hour is to protect women from violence through the law. The whole issue of violence against women did not project the flaws in the criminal justice system or what else we require, to make the system effective giving proper justice to women, as justice delayed is justice denied. In prisons, most women come from poor families and with rural backgrounds. They mostly comprise of married, unmarried, divorced and estranged women involved in begging, odd jobs and prostitution. They are vulnerable to harassment and sexual abuse. When women and children of the country get various development opportunities for their development and empowerment, jails have been kept totally out of this development question. So, for the utmost and massive development of the country, the condition of the prisons should be improved. The prisoners should be treated as a member of whole human community. Otherwise a considerable portion of the total population will remain away from the light of human rights. It is a matter of hope that, the government in recent years has been paying more attention about the condition of jail inmates and thinking of making some reformation in this regard.

APPENDIX

A list of dresses of the women prisoners under the provisions of the Rules 1159 and 1165 of the Bengal Jail Code is given below:

Convicted prisoners in Division II sentenced to rigorous imprisonment shall be furnished with the following jail equipment:

a)  For the hot weather

b) For the cold weather and rains