Punishment may be imposed in many forms. It varies contextually and different motives behind punishment are largely reflected in different forms of it. Modern penology strives to show respect towards individuals and seeks to argue that torture and any cruel, inhuman or degrading punishment should in no way be considered legal as punishment.
The Constitution of the People’s Republic of Bangladesh, carrying on the legacy of the above normative principle as documented in several human rights instruments(Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights, Article 37(a) of the Convention on the Rights of the Child, and Article 15 of the Convention of the Rights of Persons with Disabilities) and international humanitarian law (Rule 90 of the Customary International Humanitarian Law), guarantees the protection of every person from torture, cruel, inhuman, or degrading punishment or treatment. Article 35 of the Constitution of Bangladesh envisages that the power to punish should be exercised within the limits of rule-of-law-standards.
In 1997, a petition, namely Salma Sobhan, being dead in her place Ms. Sultana Kamal, Executive Director, Ain-O-Salish Kendra (ASK) vs. Government of Bangladesh, Represented by the Secretary, Ministry of Home Affairs, 27 BLD (2007) 584 (Writ Petition No. 2852) questioned the constitutionality of imposition of bar fetters (a punishment for prison offences as provided by Section 46 of the Prisoners Act, 1894) for the breach of fundamental rights provisions in Articles 27, 31 and 35(5) of the Constitution. Indian Supreme Court entertained similar petitions (see for instance, Sunil Batrav. Delhi Administration and Ors., etc.); instead of abolishing bar fetters absolutely, the Indian Court restricted the power of imposing it. Following the same line of argument in 2006, the High Court Division of the Supreme Court of Bangladesh in the above-mentioned petition held that the provisions of bar fetters were not unconstitutional.
Bar fetters, as described in Rule 718 of the Jail Code, are composed of two bars joined together by a link and attached to ankle rings, the total weight of such fetters, including the ankle-rings, not being over 5 pounds, and each bar not being less than twenty inches in length.
The High Court Division relied on several grounds for reaching the decision. It argued that the authorities’ power to impose bar fetters on any prisoner can only be exercised judiciously having regard to special characteristics of each individual prisoner. The Court, however, found the rationality of bar fetters in the need for maintaining prison discipline, arguing further that Article 35(5) of the Constitution (prohibition of torture or cruel, inhuman, or degrading punishment or treatment) does not apply to prison offences. It thus came to the conclusion that the provisions themselves were not unconstitutional, but rather it was the particular circumstances of use of bar fetters in any case that could be questioned.
But these rationales do not adequately address the issue of illegality of imposition of bar fetters in view of prohibition of torture as provided in Article 35(5). The internationally accepted definitions of these prohibitions could be drawn upon in interpreting the Constitution for this purpose. According to Article 1 of the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, torture includes acts which inflict severe physical or mental pain or suffering for punishing any person for an act he or any third person has committed or is suspected of having committed. This definition of torture requires such pain or suffering to be 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. Inhuman treatment of any person, as defined in ICTY Delalić case, and Kordić and Čerkez case, is a serious attack on ‘human dignity’- a principle so clearly flagged as a fundamental principle in the Preamble to the Constitution of Bangladesh.
Putting bar fetters in prisoners’ legs has both physical and psychological impacts. The Court admitted that bar fetters cause severe pain, leave marks and deform the color of the skin of the prisoners and could create severe problems in walking, sleeping and other natural movements. This shows that the punishment is not only painful but also humiliating and comes under the purview of the above-mentioned prohibitions in Article 35(5). The High Court Division, however, completely ignored the impact of the Constitution’s Article 35(5) on the consequences of bar fetters.
Michel Foucault, a leading philosopher, argues that power structures largely shape and determine the forms of punishments. In what power context, bar fetters had been introduced as a form of punishment in Indian-subcontinent should be considered for understanding its psychological implications on individuals. Historically, the provision of putting bar fetters had been imported in the sub-continent as a British colonial tool for perpetuating hegemony and securing exploitation. Again, it is also true that there were attempts of humanizing the then justice system, in particular introduction of formal penal system replacing the harsh and arbitrary punishments of the former local justice system in the then India.
But comprehensive scrutiny of the issue will only show that those reformative steps had been taken for obtaining psychological and intellectual assent of the native people. Because of the very nature of ruling or oppression, some sort of psychological assent from the native people is inevitable for its sustainability. So there was a peculiar mixture of apparent rational or humane forms of punishments and the humiliating forms of punishments in the British introduced penal system. Behind this scenario, significant humiliating steps had been taken to destroy the self respect, dignity and confidence of the nation and putting bar fetters in prisoners’ legs is an instance of that. As Swandip Bandapadhyay argues in his article Pathagar, Karagar: Foucault that ridiculous instances are found where the jail authority of the then British administration removed bar fetters from the prisoners’ legs before putting them on a ship journey for showing that no one were needed to be chained in the middle of the sea.
Despite this politics, rational criminal justice system had always a ground in the sub-continental ideas of penology. Earlier, Manu, an Indian jurist, considered Danda as a symbol of power and advocated theory of deterrence as opposed to retribution. One of the most prominent intellectuals of British India, Tagore in his Procholito Dandaniti, argued in favor of a rational justice system and stood against barbarism and hostility. Notably, the use of bar fetters for punishing prisoners had been a matter of criticism among the sub-continental intellectuals since its incorporation and had been seen as ‘barbarous appliances’ as remarked by David Arnold in The Colonial Prison: Power, Knowledge and Penology in Nineteenth Century India. By stark contrast, the British claimed the credit of introducing a more humane penology in the sub-continent.
Today, nowhere in the world, except some former colonies, bar fetters are imposed as a punishment. It therefore seems illogical that putting bar fetters in a restricted way can be seen as legitimate for obtaining the purpose of the law, that is, prison discipline, as the High Court Division argued in the above case.
The Court failed to clarify the grounds for inevitable necessity of bar fetters in Bangladesh, a constitutional state with a bill of rights in the Constitution. It is unfortunate that the Court failed the modern Constitution of Bangladesh by interpreting that the prohibition of torture and degrading treatment would not apply to prison rules that aim at disciplining the inmates and maintaining prison safety. Certainly, the Court defied the post-colonial aspect of constitutionalism that requires substantive rule of law.
Imposing bar fetters is degrading and humiliating for human beings and it continues to be an antithesis to human dignity. A critical examination of the prohibition against torture, cruel, inhuman and degrading punishment vis-à-vis imposition of bar fetters demonstrates that there is still room of consideration of what these terms necessarily mean for a post-colonial constitutional system.
The author gratefully acknowledges the valuable guidelines and suggestions of Dr. Ridwanul Hoque, and thanks Emraan Azad and Naveed Mustahid Rahman for helping in editing the piece.
Citation:
Tashmia Sabera, “Humane Punishment: Post-Colonial Context” (DHLR Blog, 23 May 2016) http://www.dhakalawreview.org/blog/2016/05/humane-punishment-a-post-colonial-context-977
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