Reflection on an Alternative Feasible Criminal Justice Model: By the Context of Bangladesh
Mujib Ahmmad Patwary1
After the independence of Bangladesh, we have a lot of achievement in the field of Criminal Justice System. Nevertheless, besides the changing of time we should modernized and up-to-date our existing Criminal Justice System here. Although some initiatives are already working on the field of Policing and Court System, but there were no significant change in Correction or Prison system. PRP work for established the Ideal Model of Policing and the GoB already passed the act on Independence our Judiciary. Peoples are already having the result from police and judiciary. On the other hand, Prison and Correction system has notably neglected by the GoB without any logical reasons. Consequently, a remarkable reform in our existing colonial base Criminal Justice System has been felt by the Think-Tanks of civil society as well as by the Government of Bangladesh. However, in this paper we added some policy with recommendation to overcome the loopholes of Criminal Justice System in Bangladesh and also our suggestion draw the possible alternative Criminal Justice by the context of Bangladesh. In this study, the writers will examine different enactments, laws, surveys, references; different countries present criminal justice system by program evaluations reports etc. The writers seem that in Bangladesh, the major obstacle have always been getting people to change from the way we have always done things to accepting new and innovative ideas. So, before taking the policy to implement new ones idea/ concept on Criminal Justice System, the feasibility must be tested and then the reflection of that Model work on effectively. Keywords: Courts, Prosecution, Judiciary, Independence, Separation, Police, Reform, Investigation, Gendarmerie, ADR, Prison, Probation, Parole,
Student, (ID No-29) MSS in Criminology and Criminal Justice, University of Dhaka (ID No-29)
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Chapter One: Introduction
The necessities of reform and rethinking in existing criminal justice system trace on Judiciary, Persecution, Investigative authority & Law Enforcement authority i.e., Police Servicce and lastly Correctional Bodies includes Prison, Parole and Probation. We already face some initiatives for reform and reconstructing on Courts & Judiciary and Police & Investigation. The Independence and Separation of Judiciary is a milestone achievement in legal system in Bangladesh. Peoples are getting now the outcomes more properly than the previous time. At a time the initiatives for police reform program plays a great role to modernize the police forces in Bangladesh. But there was some mentionable loopholes were identified to adjustment of people friendly Policing in Bangladesh. This study will intended to justify the reflection on that activities like, Alternative Dispute Resolution (ADR), Investigation through the key perception of Criminal Justice, Retrospective Effect, Special Trial and Tribunal, Speed Trial Tribunal etc; Model Thana, Service Delivery Desk, One-stop Service, Community Policing, Victim Support Center etc. But an irony of fate that, in the criminal correctional system has not notable change or reform. So by the consideration of significance in Criminal Correction and Rehabilitation, Chapter Four will proposes an ubiquitous and alternative feasible model of Prison correction, Institutional correction in the case of Criminal Justice System in Bangladesh. This paper will be intended to justify the feasibility of present criminal justice system in Bangladesh and also studied different countries criminal justice system to formulate an alternative feasible criminal justice model for Bangladesh by the consideration of our contextual existence.
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Chapter Two: Courts and Judiciary in Bangladesh
Mujib Ahmmad Patwary and A.M. Julfiker Hayet 2
Introduction and Historical Background The present legal and judicial system of Bangladesh owes its origin mainly to two hundred years British rule in the Indian Sub-Continent although some elements of it are remnants of Pre-British period tracing back to Hindu and Muslim administration. The legal system of the present day emanates from a mixed system which has structure, legal principles and concepts modeled on both Indo-Mughal and English law. The Indian sub-continent has a history of over five hundred years with Hindu and Muslim periods which preceded the British period, and each of these early periods had a distinctive legal system of its own. The ancient India was divided into several independent states and the king was the Supreme authority of each state. So far as the administration of justice was concerned, the king was considered to be the fountain of justice and was entrusted with the Supreme authority of administration of justice in his kingdom. The Muslim period starts with the invasion of the Muslim rulers in the Indian sub-continent in 1100 A.D. The Hindu Kingdoms began to disintegrate gradually with the invasion of Muslim rulers at the end of eleventh and at the beginning of twelfth century. When the Muslims conquered all the states, they brought with them the theory based on the Holy Quran. According to the Holy Quran, sovereignty lies in the hand of Almighty Allah.3 The so-called „modernisation‟ of the legal system began with the British and their Royal Charters. The East India Company gained control and was ultimately powerful enough to take part in the administration of justice with the local authorities. The Charter of 1726, issued by King George I, gave Letters Patent to the East India Company and was the gateway through which other legal and judicial systems entered India from England. In 1753, another Charter was issued by King George II to remove the defects of the previous Charter. In 1773, the House of Commons passed the Regulation Act to improve the judicial system and under it, the King issued another Charter in 1774 establishing the Supreme Court of Judicature at Calcutta (now Kolkata). On 15 August 1772, Lord Hastings drew up a collection of laws that became the first British Indian law code in Bengal, Bihar and Orissa. The code contained 37 sections addressing both civil and criminal law and a new system of courts took over from the slowly defunct Moghul ones.
Student, (ID No-29 and 13) MSS in Criminology and Criminal Justice, University of Dhaka www.bangladesh.gov.bd/index.php?option=com_content&task=view&id=58&Itemid=137.
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The new court system provided for separate civil (dewani) and criminal (fowjdari) courts. In 1801, another Supreme Court was established in Madras and one in Bombay in 1824. Between the 1790‟s and the 1820‟s, the East India Company promulgated the largest number of Regulations that brought about changes in the criminal justice system in the sub continent. In 1853, the Law Commission was established in India and the British Crown replaced the East India Company in 1859. The Penal Code was enacted in 1860, followed by the Criminal Procedure Code 1898, following the efforts of Lord Macaulay, an English lawyer, in bringing together the „native‟ and British systems into a single criminal law. With them, laws such as the Code of Civil Procedure 1908 and the Evidence Act 1872 were also enacted. It took nearly three decades to give final shape to the codification of criminal law in British India. This codification is the result of the strenuous effort of two law commissions. The first of these commissions was established in 1837 in India and was led by Thomas Babington Macaulay. The second Commission was established in England in 1853. One of the controversial issues during the period was the separate dispensation provided to European subjects in India and the Indians. They came under the jurisdiction of separate sets of courts and laws. Equality of protection under the same law and a common judicature based on the principle of rule of law became issues of paramount importance. This is where Macaulay intervened. He defined the principle on which the codification of law must be based. He defined the principle as uniformity where it was possible to achieve and diversity where necessary. This was the guiding principle which initiated the process leading to the abolition of the dual system of judicial administration and the establishment of a secular legal system. The process culminated, after much debate, changes and discussion, in the enactment of the Indian Penal Code (Act XLV of 1860) and the Criminal Procedure Code (Act XXV of 1898).These two Codes laid the foundation of criminal law in British India. After 1947(the partition of India and Pakistan), the title of the Indian Penal Code was changed to that of the Pakistan Penal Code. Similarly, after 1971 (the independence of Bangladesh from Pakistan), the Pakistan Penal Code came to be known simply as the „Penal Code‟ in independent Bangladesh. Except for the changes in title the Penal Code more or less remained an immutable document with only minor modifications. The same can be said of the Code of Criminal Procedure1898.
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A. INDEPENDENCE OF JUDICIARY Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference of executive or legislative branch of government. Taking into consideration some of the recent discussions made in the Beijing Statement of Independence of the Judiciary (a statement resulting from the cumulated views of thirty-two Asian and Pacific Chief Justices) Judicial independence is defined, in this report as a Judiciary uninhibited by outside influences which may jeopardize the neutrality of jurisdiction, which may include, but is not limited to, influence from another organ of the government (functional and collective independence), from the media(personal independence), or from the superior officers (internal independence) (Rahman,2000; Hadley; 2004). Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence be it from executive or legislative or from the parties themselves or from the superiors and colleagues (Halim, 1998; 299). The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence (Bari, 1993, 2: Rahman, 2000): a. Substantive Independence of the Judges: It referred to as functional or decisional independence meaning the independence of judges to arrive at their decisions without submitting to any inside or outside pressure; b. Personal independence: That means the judges are not dependent on government in any way in which might influence them in reaching at decisions in particular cases; c. Collective Independence: That means institutional administrative and financial independence of the judiciary as a whole vis-à-vis other branches of the government namely the executive and the legislative; and d. Internal Independence: That means independence of judges from their judicial superiors and colleagues. It refers to, in other words, independence of a judges or a judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues in deciding cases. Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it (Rahman, 2000, 147). Page 5 of 57
B. THE SEPARATION OF JUDICIARY IN BANGLADESH In 1999, Bangladesh‟s apex court, the Appellate Division of the Supreme Court, gave a landmark judgment in Secretary, Ministry of Finance v Masdar Hossain (the Masdar Judgment). This judgment re-affirmed the constitutional mandate for independence of the judiciary and laid out a roadmap to achieving separation of the judiciary from the executive with respect to the lower courts, both civil and criminal. The judgment was a fitting response to the long standing demand articulated by lawyers and judges to ensure speedy and effective separation of the judiciary. In turn, it catalysed both leading political parties to make manifesto commitments to realise separation of the lower judiciary. Since then, development partners have also raised the issue of separation in their dialogue with the Government of Bangladesh. Despite this broad-based consensus, the judgment today remains largely unimplemented. The judgment identifies five key characteristics of independence of the judiciary, namely: security of tenure; recruitment to the Judicial Service as permanent and through a transparent Judicial Service Commission; security of emoluments including pension etc.; institutional functional independence of the Subordinate Judiciary from Parliament and the Executive; and financial autonomy within the sphere/funds allocated. The judgment contains twelve specific directions on the Government for measures to ensure the separation of the judiciary, by creating a new Judicial Service to include the magistracy. These directions, among others, required the Government: To set up two separate bodies, the Judicial Service Commission (JSC) (to recruit persons in judicial service, including judicial magistrates), and the Judicial Pay Commission (JPC) (to fix pay scales for members of the judicial service), specifying the nature of their composition, powers and functions. To frame and bring into force four sets of rules relating to the establishment of the JSC (for recruitment of members of the Judicial Service), establishment of the JPC (for fixation of their pay and benefits), for ensuring the manner of the constitution, composition, recruitment and suspension of members of the service, and for ensuring matters relating to posting, promotion, and other service conditions. For the purpose of incorporating magistrates within the judicial service, to frame amendments to the Code of Criminal Procedure and other laws that empower Magistrates to try criminal cases, so that all references to „Magistrate‟ in existing laws would be replaced by the term „Judicial Magistrate‟.
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C. POST-MASDAR DEVELOPMENTS: Despite the passage of almost six years, the Government has yet to fully comply with the Masdar directions. The earliest measure taken to comply with the judgment concerned the financial autonomy of the Supreme Court. Subsequently, the Government promulgated the JSC Rules and published them in the Bangladesh Gazette. Thus a new and separate „Bangladesh Judicial Service‟ was created, and a seven member Judicial Service Commission was established. Since then, some 230 persons have been appointed to the judicial service by the JSC, and are now posted at various courts across Bangladesh. Following protracted hearings before the Appellate Division regarding the proposed legislation required to secure the other key aspects of independence of the lower judiciary regarding security of tenure, superintendence and control etc, the Government in 2006 framed further legislation. This included the promulgation of three sets of Rules regarding the terms and conditions applicable to the Judicial Service, as follows: 1. The Bangladesh Judicial Service (Pay Commission) Rules („the JPC Rules‟) 2. The Bangladesh Judicial Service (Service Constitution, Composition, Recruitment and Suspension, Dismissal & Removal) Rules („the Composition Rules‟) 3. The Bangladesh Judicial Service (Posting, Promotion, Leave, Control, Discipline and other Service Conditions) Rules („the Posting Rules‟) The JPC Rules provide for establishing a JPC comprising of the Auditor General, Secretary, Finance Division, Secretary, Ministry of Establishment, Secretary, Ministry of Law and the Registrar, Bangladesh Supreme Court. The JPC‟s functions include review and recommendation of the salary structure of judicial officers, on consideration of the salary/remuneration structure pertaining to the Judiciary. The Composition Rules provide for the controlling authority for the Judicial Service, and for matters of recruitment, suspension dismissal and removal. They provide that the controlling authority for the Judicial Service would be the „Appropriate Authority‟ and define the Authority as "the President or a Ministry or Division which is entrusted with the administration of the Service under the Rules of Business as framed by the President under Article 55(6) of the Constitution‟. With regard to increase and decrease of number of posts and re-composition of the Service, these Rules provide that the ‟Appropriate Authority‟ is required to obtain consent from the Ministry of Establishment and the Ministry of Finance. They further provide that the Judicial Service shall comprise of such posts as are set out in the Schedule, but the Schedule does not contain any reference to Magistrates and the definition of "Judicial Service" also does not include Magistrates. Page 7 of 57
D. CONCERNS REGARDING POST-MASDAR DEVELOPMENTS This section outlines some of the apparent discrepancies between the four sets of Rules that have been promulgated (the Notified Rules), and the earlier versions approved by the AD in May 2003 (the Modified Rules). On a reading of the texts, reinforced by the views of jurists and civil servants consulted in the course of this study, certain concerns arise regarding whether and to what extent the Notified Rules would fully achieve separation of the lower judiciary from the executive. These concerns are set out below and relate in turn to the composition of various bodies, their powers and functions, the nature of the controlling authority and the nature and composition of the judicial service, inasmuch as in each case, there remains considerable practical scope for executive interference at each level. 1. Composition of the JSC and JPC: The JSC as finally established has only seven as opposed to the eleven members earlier proposed. Among them, arguably the majority of the Commission members are not judicial officers that are if the Secretary, Ministry of Law is considered to be an administrative officer by virtue of serving in an administrative post. The composition of the JPC also appears to leave considerable scope for executive control of the body. The current composition, and the rule that a quorum of the commission requires only three persons, means that the JPC could if necessary take decisions without the presence or participation of any member of the judiciary. 2. Composition of the Judicial Service: The exclusion of any reference to Magistrates in the Schedule of the Composition Rules and in the definition of Judicial Service indicates that the Magistracy would not be included in the definition of the judicial service. This omission appears to indicate that the Magistracy is not going to be part of the Judicial Service and would continue to be controlled by the executive. 3. Powers and Functions: The Posting Rules provide for posting Judicial Officers on deputation to various offices, including the Ministry of Law, the Supreme Court, the Parliamentary Secretariat and the Election Commission. The Posting Rules further appear to widen the scope of deputation from that envisaged by the original Draft Rules.
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4. Controlling Authority for the Judicial Service: The provision regarding the ‟Appropriate Authority‟ in the Composition Rules, together with the provision in the Rules of Business for the Law Ministry to be responsible for administration of the Judicial Service would suggest that the Ministry will remain the controlling authority without further changes. This indicates a need for amendment of the Rules of Business to define the Appropriate Authority as an independent body, separate from any Ministry or Division. With regard to posting, Rule 3 of the Posting Rules provides that the „Appropriate Authority‟ shall determine posting of the members of the Service in consultation with the Supreme Court, thus omitting the requirement (included in the original draft Posting Rules) that in the event of difference of opinion, the opinion of the Supreme Court would have primacy. The Posting Rules are silent about the consequence of non-compliance with the Rules, i.e they do not specify whether a posting without consultation with the Supreme Court would be invalid, and it may therefore be argued that the Rules are directory not mandatory This leaves open the possibility that the opinion of the ‟Appropriate Authority‟, that is the Executive, would prevail. 5. Terms and Conditions of Service With respect to reviewing the salary structure of Judicial Officers, the original draft JPC Rules provided that the factors to be taken into consideration include „...the existing salary/remuneration structure‟ (Rule 3), implying reference to the salary/remuneration structure prevailing for other Services besides the Judiciary. However the notified Rule 3 indicates that only the salary/remuneration structure pertaining to the judiciary would be considered. This may give rise to an anomalous situation in which the remuneration structure for the judiciary does not match that for the administrative service.
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E. COURTS AND JUDICIAL SYSTEM IN DIFFERENT COUNTRIES: 1. Chinese Legal System Chinese law is one of the oldest legal traditions in the world. In the 20th and 21st century, law in China has been a complex mix of traditional Chinese approaches and Western influences. For most of the history of China, its legal system has been based on the Confucian philosophy of social control through moral education, as well as the Legalist emphasis on codified law and criminal sanction. Following the Revolution of 1911, the Republic of China adopted a largely Western-style legal code in the civil law tradition (specifically German-influenced). The establishment of the People's Republic of China in 1949 brought with it a more Soviet-influenced system of socialist law. However, earlier traditions from Chinese history have retained their influence, even to the present. Law in the People's Republic of China is currently undergoing gradual reform, as many elements inside and outside the country emphasize the need to strengthen the rule of law in China, and international trade and globalization spur transformations in various areas of Chinese domestic law. The Chinese Criminal Law takes the concept of Marxism, Leninism and Mao Zedong as its guide. It proclaims that its tasks are to use criminal punishments to struggle against all counter-revolutionary and other criminal acts in order to safeguard the system of the people's democratic dictatorship and the smooth progress of the course of socialist construction. The Law takes the Constitution as its basis. Article 28 of the Constitution stipulates that
"The State maintains public order and suppresses treasonable and other counterrevolutionary activities; it penalizes acts that endanger public security and disrupt the socialist economy and other criminal activities, and punishes and reforms criminals".
1. The state maintains public order and 2. Suppresses treasonable and other counter-revolutionary activities; 3. It penalizes acts that endanger public security and disrupt the socialist economy and other criminal activities, 4. Punishes and reforms criminals". Since 1979, higher legal education has considerably developed through universities and other institutions. High priority is being given to publicizing information on the legal system through, eg. the China Law Journal, and many provincial and municipal journals, magazines and newspapers. Law Page 10 of 57
education has been introduced in the primary, middle and other schools. Studies, symposia and public lectures are often organized in factories, mines, rural communes and brigades in order to give increased publicity to the Constitution and other laws. *The age for bearing criminal responsibility is sixteen. Minors under the age of fourteen are entirely exempted from criminal responsibility, even if they commit acts harmful to society. Minors aged fourteen but under the age of sixteen shall partially bear criminal responsibility, that is to say they are responsible criminally only in cases involving murder and manslaughter, serious injury, robbery, arson, habitual theft or other acts seriously undermining social order. For delinquents aged fourteen to seventeen but younger than eighteen, the Law requires a lenient punishment - to be specific, a lessor penalty within the range of the legally-prescribed punishment. When minors are not punished because they are under sixteen, the heads of their families or their guardians are to be ordered to subject them to discipline or when necessary, the minors may be given shelter or rehabilitation by the Government. 1. Sanctions The Criminal Law provides that Principal Punishments are classified as control, criminal detention, fixed term imprisonment, life imprisonment and death penalty. Control is a criminal penalty imposed for minor offences. The offender continues to work in his place of employment and continues to receive his normal wages, while undergoing the supervision of the public security organs (police) and the masses. He is required to make periodical reports on his circumstances to the public security organ concerned. Criminal detention is a criminal penalty imposed for relatively minor offences, and totally different from pre-trial detention. The criminal on whom this penalty is imposed is deprived of his freedom and confined in a detention house by the local organ of public security rather than being put in prison. He may go home for one or two days each month and be paid for work. The term of fixed-term imprisonment is not less than six months and nor more than fifteen years. An offender sentenced to fixed term imprisonment or life imprisonment is to have his sentence executed in prison or in other place for reform through labour. Reform through labour is to be carried out on any offender who is imprisoned, as long as he has the ability to labour. The death penalty is only to be applied to those offenders who commit the most heinous crimes. The Criminal Law provides for two types of death penalty viz. death penalty with two year suspension of execution and death penalty without suspension of execution. The Law stipulates that in the case of a criminal who should be sentenced to death, but for whom immediate execution is not essential, a Page 11 of 57
two-year suspension of execution may be pronounced at the time the sentence of death is imposed; the criminal will be put into prison and reform-through-labour carried out and the results observed. If the criminal truly repents during the period of suspension, he is to be given a reduction of sentence to life imprisonment upon the expiration of the two-year period; and, if he not only truly repents but also demonstrates meritorious service, he is to be given a reduction of sentence to not less than fifteen years and not more than twenty years of fixed-term imprisonment upon the expiration of the period. Only those who have resisted reform in an odious manner, provided the evidence of such behaviour is verified, are to be executed upon a ruling or an approval of the Supreme Court. The Criminal Law provides for the following supplementary punishments: fines, deprivation of political rights, and confiscation of property. These supplementary punishments may also be applied independently. 2. Prosecution The people's procuratorates (public prosecutors) are responsible for initiating public prosecution. The people's procuratorates have the power to investigate criminal cases as well as the power to make decisions of prosecution, non-prosecution or exemption from prosecution in each criminal case considering the evidence of the case and nature and circumstances of the crime. 3. Judiciary The people's courts are responsible for adjudication, and no other bodies are given the power to adjudicate criminal cases. The number of professional judges as of 31 December 1986 was 137,066, out of which 19,897 were female judges. More than 144,000 employees are working in the judicial system. 4. Prisons In Chinese prison services, there have been various new ways of mobilizing public participation in helping re-mould prisoners. For example, famous scholars, writers, educators, artists, musicians and sportspeople are invited to call on prisoners, and encourage them to make more efforts to reform themselves; former prisoners who have been already integrated into the society after release are organized to persuade current inmates to re-mould themselves; family members, relatives and friends of the prisoners are encouraged and provided with every facility to admonish and educate them.
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5. Non-institutional services In China, supervision of offenders both during the suspension of execution of sentence and after release on parole is carried out by the public security organ (police). Probationers and parolees are turned over by the public security organ to a work unit or a basic level organization. The policeman in charge of the community shall supervise their daily life, their work and ideological trend and encourage their consciousness to become law-abiding citizens. Meanwhile the policeman shall keep in touch with their neighbours if they conduct any law- breaking activities. 5.1. Pre-trial detention
The Criminal Procedure Law stipulates that, in hearing a case of public prosecution, the people's court shall announce judgement within one month after accepting the case, and it may extend one month and one-half at the latest. Accordingly, pre-trial detention is not considered to pose any serious problem. 5.2. Diversion
There are several diversion schemes to imprisonment. Police are empowered to give warnings or to impose a certain limited amount of fines (not more than 200 yuan) to the criminals who have committed minor offences (Security Control and Enforcement Law). This warning and fine are regarded as a final sanction imposed by the police and they need not send the case to either the public prosecutor nor the court. This system is applicable to various types of minor offences including theft, embezzlement, fraud, assault, gambling, violations of traffic regulations and various types of public disturbances. If the person who receives this summary sanction is dissatisfied with the disposition, he/she can appeal to the higher police organ and finally to the courts. This scheme is fully utilized as an alternative and diversion to the formal criminal justice procedure and imprisonment. At prosecution stage, public prosecutors are empowered to grant exemption from prosecution, considering the gravity of the crime and other circumstantial factors, even if there is enough evidence to convict the suspect. According to the Criminal Law, suspension of sentence may be pronounced for an offender who has been sentenced to criminal detention or to fixed-term imprisonment for not more than three years according to the circumstances of his/her crime and his/her demonstration of repentance, and where it is considered that applying a suspended sentence will not result in further harm to society. Page 13 of 57
An offender sentenced to fixed term imprisonment of which not less than half has been executed, or an offender sentenced to life imprisonment of which not less than ten years have been actually executed, may be granted parole if he/she demonstrates true repentance and will not cause further harm to society. If special circumstances exist, the above restrictions relating to the term executed need not be imposed. During the period of suspension of sentence and parole, the offender is placed under the supervision of the public security organ (police), and the public security organ utilizes the mass organization of the community to help watch the offender's daily behaviour and lead him/her to become a law-abiding citizen. It is said that the number of the revocation of suspension of sentence and parole because of the committal of new crime is very small, and that this type of community based treatment has been proving very successful, although clear statistics are not available in this regard. 5.3. Reform through Labour
Offenders who have been sentenced to detention, fixed-term imprisonment, life imprisonment or the death penalty with suspension of execution, provided that they can work, are obligated to work. Under the basic policy of "reform through labour", emphasis is placed on educating and redeeming prisoners to law abiding citizens through daily labour in the institutions. The purpose of this policy is considered to re-mould their ideology, freeing them from bad influence and habits, and to resocialize them into someone who can live on their own labour and are useful to society. Labour is considered to be a principal measure of reforming criminals, though it is not the only one. The system of reform-through labour has been said to be effective and successful over the past forty years. It is reported that, according to some sample statistics, among those who have served a term of imprisonment, 4-6% of them committed a crime again after release. The Unique features of Chinese Judicial System: Administrative Law Person counseling Reform through Labor Military Courts Death Penalty
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The Others features … … … The legal structure is codified into the Six Codes: the Constitution, the Civil Code, the Code of Civil Procedures, the Criminal Code, the Code of Criminal Procedures and in Administrative laws. A Restorative Justice Audit of the Chinese Criminal Justice System4 During the past three decades, dissatisfaction with respect to limitations of the traditional criminal justice system in controlling crime has given rise to restorative justice, which provides a new pattern of thinking about justice. Restorative justice offers a new lens with which to view crime and justice. Howard Zehr describes restorative justice in this way: „Crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance.‟ A restorative response to crime focuses on reparation of the victim‟s injury and loss, integration of the offender back into the law-abiding community and restoration of community harmony. The victim, the offender and the community are given primary responsibilities for deciding how to work out the solution rather than criminal justice institutions and professionals. Programs of restorative justice have been widely established in industrialized countries as an alternative to formal sanction or as part of such processes. Proponents of restorative justice claim that victims and offenders record a higher level of satisfaction than those who go through court process. This is because restorative processes are empowering; they enable the victim, the offender, and the community to work out the solution to crime. The strong ties made to the community reduce the offender‟s likelihood of future offending. Although restorative justice is not a complete model, it suggests that criminal justice is not the sole response to crime. The Chinese criminal justice system seems to be punitive and retributive; nearly all criminal offences are publicly prosecuted, there are few diversions from criminal penalties, and China is viewed as one of the countries in which the death penalty is most often used. However, the emphasis on harmony in Confucian culture and informal social control practices at the grassroots level seem to have restorative values and possibilities. As John Braithwaite argues, „What a pity that so few Western intellectuals are engaged with the possibilities for recovering, understanding, and preserving the virtues of Chinese restorative justice while studying how to check its abuses with a liberalizing rule of law‟. Therefore, this essay aims to audit the Chinese criminal justice system using restorative criteria.5
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The Chinese criminal justice system is very different from Western justice systems. Influenced by Confucian communitarian ideology and communist philosophy, mass organizations at the grassroots level play a very important role in crime control. Mediation committees and bang jiao groups exist in nearly every local community to deal with minor deviances, resolve conflicts, and rehabilitate juvenile delinquents and released offenders. While the formal criminal justice system is used for more serious offenders, mass participation in conflict resolution and crime prevention is an integral part of the Chinese criminal justice system. The formal criminal justice system does seem to be punitive and arbitrary. The major statutes are the Criminal Law (CL) and the Criminal Procedure Law (CPL). The CL defines the specific crimes and their relevant punishments. Sentences are divided into primary and supplementary categories, and all sentences are offender-centered. The CPL sets out the rules for the criminal proceedings. However, not all criminal offenses are governed by the CL and CPL. Minor offenses are handled through administrative sanctions without trial. Punishment of up to four years imprisonment can be imposed under administrative statutes. The „severe strike on crime campaign‟ (SSCC) policy, adopted in 1983, aims to control crime through deterrence by modifying criminal procedures to allow for quicker proceedings and harsher punishments. The essay will correlate four essential restorative values, „personalism, participation, reparation, and reintegration‟, with the practices and traditional culture in China to audit the Chinese criminal justice system. Chinese criminal justice relies heavily on informal social control at the grassroots level. Furthermore, the Confucian culture greatly influences the thinking and behavior of Chinese people. Therefore, this audit considers not only the formal criminal justice system, but also the practices of informal social control at the grassroots level that have been profoundly influenced by Confucian culture. The essay aims to identify restorative elements in the total Chinese response to crime.
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Court System The Constitution of China provides that the People's Courts are the judicial organs of the state and exercise the judicial powers. Soon after the establishment of the People's Republic of China in 1949, the courts system was established throughout the country. In 1954, at the first session of the first National People's Congress (NPC), the Organic Law of the People's Courts was adopted which provided systematically the nature, functions, organization and activities of the courts. Now the court system of China consists of:
The Supreme People's Court; The higher courts instituted at the levels of provinces and autonomous regions as well as municipalities directly under the Central Government; The intermediate courts established at levels of prefectures (including autonomous prefectures), provincial capital (including cities under direct control of the provincial or autonomous region government), relatively big cities and within the municipalities directly under the Central Government;
The basic courts established at county or autonomous county levels and in urban districts; Military courts; Maritime courts; Railway transport courts. Page 17 of 57
5. 6. 7.
Every court is, except the special courts (military, maritime, and railway transport courts), usually composed of several institutions such as criminal division, civil division, intellectual property division and enforcement division. In recent years the courts of the whole country handles a total of about 6 million cases annually. Procuratorate System The People's Procuratorate of the People's Republic of China is the supervisory organ of law. In September 1954, the first NPC at its initial session adopted the first Constitution of China and the Organic Law of the People's Procuratorate. Both provided for the establishment of a Supreme People's Procuratorate, local procuratorates at various levels and special procuratorates. Thereafter, the procuratorial institutions at both central and local levels were gradually established. Currently, the national procuratorate system includes:
The Supreme People's Procuratorate; The local people's procuratorates includes those in the provinces, autonomous regions and municipalities directly under the Central Government; the branch people's procuratorates set up in the cities, prefectures, autonomous prefectures, provincial capitals, and within the municipalities directly under the Central Government as well as procuratorates at the county, autonomous county, and urban districts levels;
Special People's Procuratorates include military and railway transport procuratorates.
Judicial Interpretation In China, the judicial interpretation is referred to the interpretations, made by the national supreme judicial authorities on questions relating to specific application of laws in their judicial practices according to the authorization of the NPC. The Supreme People's Court and the Supreme People's Procuratorate, by virtue of the relevant decrees adopted by the NPC, both hold the power of formulating the judicial interpretation. The judicial interpretation has a long history in China, dating back to 1954, shortly after the founding of the People's Republic of China, the judicial interpretation appeared along with the rapid progress in the fields of economic construction and national legislation after the first Page 18 of 57
Constitution was promulgated. It is urgent for national supreme judicial authorities to strengthen the interpretative work on the application of law in order to cope with the problems that arise in handling cases. The Standing Committee of the NPC passed, for this reason, the Decision on Interpretation of Law in 1955 which provided that those questions connected with specific application of laws and decrees should be interpreted by the Supreme People's Court. Thus the supreme judicial organ, for the first time, was formally conferred with the power of enacting judicial interpretation by the highest organ of state power from that time forward. This power was also confirmed by the legislation afterwards, such as the Organic Law of People's Court of the People's Republic of China in 1979. Furthermore, the Standing Committee of the 5th NPC at its 19th session adopted a resolution on improvement of explanation work of the law providing that: "Where an interpretation of questions involving the specific application of laws and decrees in court trials shall be provided by the Supreme People's Court and; where an interpretation of problems concerning the concrete application of laws and decrees in procuratorial practices shall be prescribed by the Supreme People's Porcuratorate. If there is any difference in principle between them, it should be delivered to the Standing Committee of NPC for interpretation or decision." This Resolution stresses not only the power of judicial interpretation of the Supreme People's Court but also bestows on the Supreme People's Porcuratorate the same power. Thus the judicial interpretation has, as an important legal system, appeared in China and has been considered as a formal source of law. There have been recorded, according to judicial statistical data, about 4,000 judicial interpretations by the Supreme People's Court alone or jointly with the Supreme People's Porcuratorate from 1949 to 2000. 2. German Legal System The Federal Republic of Germany is a democratic constitutional state that guarantees stable laws,
the protection of liberties, and equality before the law.
This is essentially ensured by the Basic Law, as the principles of a democratic constitutional state are enshrined in the constitution. The German supreme court, namely the Federal Constitutional Court, monitors maintenance of these rights and the preservation of justice. In Germany the administration of justice is divided into five branches: ordinary, labor, administrative, social and financial courts. In a normal case there are three higher tiers that can reassess court decisions. The plaintiffs and the accused can appeal against a court ruling. Thereupon the Page 19 of 57
litigation goes before a “higher” court and a ruling is handed down. Not until the third level has been reached is there no longer any right of appeal and the litigation thus comes to an end. Justice is passed down by some 20,000 independent judges who are bound only to the law and are, as a rule, appointed for life. They may not on principle be removed from office. Moreover there are some 5,000 public prosecutors in Germany and more than 150,000 lawyers. Many legal systems in other countries are based on that of Germany. The internationally recognized high level of legal stability attracts foreign companies and is to the benefit of investments and entrepreneurial activity in the country. Judiciary of Germany The German legal system is a civil law based on a comprehensive compendium of statutes, as compared to the common law systems. Germany uses an inquisitorial system where the judges are actively involved in investigating the facts of the case, as compared to an adversarial system where the role of the judge is primarily that of an impartial referee between the prosecutor and the defendant. The independence of the judiciary of Germany is historically older than democracy in Germany, the organisation of courts is traditionally strong, and almost all state actions are subject to judicial review. Judges follow a distinct career path. At the end of their legal education at university, all law students must pass a state examination before they can continue on to an apprenticeship that provides them with broad training in the legal profession over two years. They then must pass a second state examination that qualifies them to practice law. At that point, the individual can choose either to be a lawyer or to enter the judiciary. Judicial candidates start working at courts immediately, however they are subjected to a probationary period of up to five years before being appointed as judges for lifetime.
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The judicial system comprises three types of courts.
Ordinary courts, dealing with criminal and most civil cases, are the most numerous by far. The Federal Court of Justice of Germany (Bundesgerichtshof) is the highest ordinary court and also the highest court of appeals.
Specialized courts hear cases related to administrative, labour, social, fiscal, and patent law. Constitutional courts focus on judicial review and constitutional interpretation. The Federal Constitutional Court (Bundesverfassungsgericht) is the highest court dealing with constitutional matters and has played a vital role through its interpretative rulings on the Basic Law.
The main difference between the Federal Constitutional Court and the Federal Court is, that the Federal Constitutional Court may only be called if a constitutional matter within a case is in question (e.g. a possible violation of human rights in a criminal trial), while the Federal Court of Justice may be called in any case.
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Currently there are 828 ordinary courts (687 local, 116 regional, 24 appellate, one federal), 142 labour courts (122 local, 19 appellate, one federal), 69 administrative courts (52 local, 16 higher, one federal), 20 tax courts (19 local, one federal), 86 social courts (69 local, 16 appellate, one federal) and 17 constitutional courts (16 State Constitutional Courts, one Federal Constitutional Court). For a comparison of the relative activity of the courts, in 1969 there were 468,273 criminal cases in Germany in the ordinary courts, and 388,619 or 83% of these were held in the Amtsgericht composed of a single judge.
Officers of the court
1. Professional judges
The federal Courts are administrated by the federal state, all the other courts belong to a Land and are administrated by it. The independence of the judiciary that is laid down in the federal constitution (article 97 para. 1) only refers to the judicial decision-making process of any individual judge, not to the judicial power as a whole. In line with this, the courts are administrative bodies subordinate to the respective department of justice, special rules only applying to the judicial decision-making process and the status of the judges. All professional judges are compose a common corps in that they are recruited through a common process and their career is governed largely by federal law. However, most judges are state (Länder) civil servants and follow state rules on legal education, appointment, and promotion.
As a rule, each decision on the initial employment, vesting with lifetime tenure or promotion of a judge is taken by the department of justice. Yet in some of the Länder there is some kind of a parliamentary body that needs to be heard or even has a say in some of the decisions on careers of individual judges (Richterwahlausschuss). The mostly decisive influence of the administration on the career of judges is exceptional in continental Europe, where mostly bodies of judges, elected by and within the judiciary take this kind of decision (e.g. France: conseil superieur de la magistrature, Italy: consiglio superiore della magistratura). By some it is regarded as a threat to judicial independence that with a view to their personal career judges might be inclined to specially regard possible political effects of their decisions or may choose to support a political party.
Federal judges are picked in an in-camera-procedure by a body composed of a Minister of the federal state, federal MPs and ministers of the Länder (article 95 para. 2 of the federal constitution). Page 22 of 57
Candidates do not have to be professional judges, but lawyers. There are neither public hearings, nor would the identity of any candidate even be disclosed to the public. Judicial members of the federal constitutional court are elected in turns by the federal chambers (article 94 of the federal constitution). This decision requiring a large majority, it usually follows a political compromise. Public discussion about candidates is very unusual. 4. Lay judges
Lay judges (Geschworenen or Schöffen) are effectively short-term, politically-appointed non-professional judges. Except for most crimes for which the trier of fact is a single professional judge, and serious political crimes which are tried before a panel of professional judges, all charges are tried before mixed tribunals on which lay judges sit side by side with professional judges. Section 263 of the German Code of Criminal Procedure requires a two-thirds majority for most decisions unfavorable to the defendant; denial of probation by simple majority is an important exception. In most cases lay judges do not directly examine documents before the court or have access to the case file. Selection of lay judges has been described as a "highly political and discriminatory process." Lay judges are selected by a selection committee from lists that are passed by the municipal councils (Gemeinderat) with a two-thirds majority of attending local councilors. Given this high threshold, in practice these lists of lay judges are first compiled by municipal bureaucracies and the political parties in Germany, and it would appear that selection favors those known personally by the selection committee. The selection committee consists of a judge from the Amtsgericht, a representative of the state government, and ten "trusted citizens" (Vertrauenspersonen) who are also elected by two-thirds of the municipal legislature, and selects from the list of candidates the number needed to staff the various tribunals. The practice was similar to the practice of East Germany. Applications can be made to become a lay judge by interested citizens but this does not occur often, and welfare institutions, sports clubs, financial and health insurance institutions, trade unions, industrial companies and other public authorities are primarily called upon to nominate candidates, and it appears that motivation includes social responsibility, image cultivation, advertising, and participation in fine penalty allocation. Lay judges have historically been predominately middle-aged men from middle class socio-economic backgrounds, largely due to a selection procedure in which personal acquaintance, political affiliation and occupation all play an important role. A study conducted in 1969 found that, of the lay judges in its sample, approximately 25% were civil service employees, compared to only about 12% being bluecollar workers. A study published in 2009 put this number at 27% civil service employees versus 8%
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of the general population, and noted the relatively high numbers of housewives, the relatively low number of private sector employees, and relative old age of lay judges. 5. Prosecutors Public prosecutors, although equally paid as judges, do not enjoy judicial independence and legally are ordinary civil servants. 6. Defense counselors
A lawyer can only act as defense counsel if they fulfill the aptitude criteria for judges. Defense counsel are grouped in divisions of the bar association, wherein membership is mandatory. The Three Most Important Features of Germans Legal System 1. 150-Year-Old Tradition Of A Strong German Legal System The German legal system has been one of the most influential legal systems of the world since the 2 half of the 19 century. At that time academics and legal professionals worked over a period of 30 years on a codification of German law. This was the birth of the “Bürgerliches Gesetzbuch” (“BGB”) (also known as the “Big German Book”), which still is the foundation of the civil law part of the current German legal system. Several Asian countries adopted the German legal system after World War II and even before: Japan, Korea - and China, first and unfortunately only during a small window of opportunity, mainly at Dongwu Law School in Suzhou in the late thirties of the 20 century and then again after the so-called opening of China beginning in the mid eighties of the 20 century. After the fall of the Berlin Wall, different eastern European countries used the German civil law as a model for their respective civil legal systems. Meanwhile, in practice, the German legal system has come to be based more on cases („richterliche Urteile“), which increasingly influence and are influenced by commentary. As a result, even the interpretation of codified law itself is becoming increasingly based on case law. During the 2 half of the 19 century, legal education in Germany was reformed. It became the unique privilege of the State to examine German jurists. The concept behind the reform was that anyone who wished to act as a full-fledged legal professional – whether as attorney, judge, lawyer, or legal academic – must successfully complete a First and a Second State Exam, separated by a two-year clinical program. Through the course of different internships at law firms, courts, legal administrative offices, prosecutors‟ offices, etc., this program provides an overview of the entire range of legal practice. Page 24 of 57
nd th th th nd th
2. Internationalization of Legal Practice Affects the German Legal System
In the second half of the 20 century, and with accelerating speed at the end of that century, the uninterrupted economic success of the US as the leading - and since the Fall of the Iron Curtain, so far the only remaining - world power has led the Anglo-American legal system to become the leading legal system in the world. In practice, business transactions in a globalized world are based on Anglo-American contract drafting techniques. By contrast, the approach of German codified law - that everything important is codified and that individual contracts need only address specifics relating to the parties - is going to become smaller. In that respect, the importance of the German legal system in practice is shrinking. At the same time, a more and more globalized world urges thinking in global dimensions, not only in the field of “soft law”, but also in the field of hot topics such as IP, property rights, and others. Businesses and transactions among companies and multinationals no longer depend on national boundaries. In addition, although nations are still the most important actors for their citizens, numerous factors combine to force nations to act in a manner that recognizes this globalization. These factors include the transnational dimension of business, the enormous power of multinational companies and globally-active NGOs, human rights, wars, phenomena such as lack of primary resources (water, oil, etc.) and natural catastrophies. In Germany (as in all other European Union members), EU regulations are going to overpower national laws: more than 40 % of new federal legislation in Germany is caused by the need to implement EU law into the national legal system. 3. These and Other Factors Lead to Increased Pressure for Change in German Legal Education Despite these phenomena, German legal education is still focused almost exclusively on German national law. Both State Examinations address only the German legal system. However, there are signs of change. A first reform of the first State Exam implemented in Summer 2006 required universities to be responsible for 30 % of the grades of the First State Exam, thus breaking the traditional rule that the professional qualifying examination for jurists is exclusively the prerogative of the German State. The Bologna Process, the aim of which is to establish a unified university system all over the EU, will cause additional changes to traditional legal education in Germany. This change is not unique to law: Every discipline must adapt its curricular structure to the Bachelor and Masters Degree model. Page 25 of 57
3. American Criminal Court System
The American Criminal Court system is based on the English Common Law system. The basic idea is that there are two sides, the plaintiff and the defendant, who present their arguments before an impartial judge (and sometimes a jury). In a criminal case, the prosecutor acts as a plaintiff on behalf of the citizens or state. It is the judge‟s duty to determine what the law is in relation to the particular case at hand. It is the jury‟s duty, in a jury trial (or also the judge‟s, in trials without a jury – a bench trial) to determine what the facts are in the case. The lawyers in the case are charged with representing their respective clients to the very best of their ability. The outcome (or at least the goal) of this process is justice. In the United States, there are more than 51 different interpretations of this basic model. Each of the 50 states has its own rules and procedures. The federal courts also have their own rules, which are Page 26 of 57
occasionally interpreted differently in different parts of the country. However, for the most part, they are all very similar.
Fig: The US Criminal Justice System The system is generally a three-tiered one. A case is typically brought at the lowest level or court, usually a "District" or "Trial" court. Once this case is heard and a decision, or "judgment" has been made, both the defendant and the plaintiff have the opportunity to appeal the decision to an "Appellate Court" or "Court of Appeals." In other words, if they do not like what the judge and/or jury decided, they can complain to the next higher level in the court system, and try to get the decision reversed. However they can only appeal if they believe the judge made a legal error, not just because they are disappointed in the outcome. At the Appellate Court level, there is usually a panel of three judges who hear arguments on either side. Judges at the Appellate Court can usually only decide matters of law. In general, all of the facts in the trial record are assumed to be true. The Appellate Court has three options: it can decide that the judge was wrong and change the judgment, it can decide the judge was wrong and send the case back for the judge to change (also called a "remand"), or it can agree with or "affirm" the judgment of the lower court. Page 27 of 57
Again, if either party to the case does not like the decision (again there must be a legal error in the lower proceedings), they can appeal to the highest court, usually called the Supreme Court and usually composed of nine justices. All 50 states and the federal courts have some version of a Supreme Court. The Supreme Court decides issues in the same manner as the Appellate Court. However, there is no court higher than the Supreme Court to which to appeal. The judgment of the Supreme Court is final. While all American court systems, or "jurisdictions," follow this basic structure there are many differences among them and all have exceptions to the is generalization. However, it is important to stress that they all do follow the same basic structure.
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4. Overview on French Legal System
Fig: French Judicial System
Litigation in French:
Court structure - a brief overview
The French legal system abides by the principal of unity of the civil and criminal justice system, which means that the same court can hear both criminal and civil cases. The principal Courts which nonFrench plaintiffs (or defendants) are likely to encounter in their dealings in France are: 1. Lower District Court 2. Higher District Court – before which litigants are required by Statute to be represented by a French Attorney (viz. in French an "Avocat") 3. Tribunal de Commerce or Commercial Court (this is a separate Jurisdiction which deals only with matters relating to trade and commerce disputes and the Bench is elected from within the local business community). 4. Cour d’Appel or Court of Appeal (there are over thirty in France, in each of its major administrative regions). 5. Cour de Cassation or Court of Cassation (sometimes referred to as France‟s Supreme Judicial Court) Page 29 of 57
It should be noted that the oral part of proceedings is far less important, in comparison with, say, common-law jurisdictions, than the exchange of written submissions prior to the trial per se. Moreover, for all comparative intents and purposes, cross-examination of witnesses does not exist and furthermore there are no juries in Civil matters. History of the Criminal Justice System in French The legal system in France has developed through several stages since the country's establishment. The stage of the Private Reaction characterized the legal system from the time France was founded up until the 16th century. The accusatory procedural system pre-dominated judicial procedures at this time. The 16th century was marked by the stage of the Public Reaction, which established the inquisitorial system. This system was based on secret judicial procedures. Thus, repressiveness and arbitrariness in the judicial and legal procedure were characteristic of the regime before 1789. After the Revolution of 1789, a judicial system was established that was inspired by English law which enacted the principle of legality of offenses and punishments. The stage of the Imperial Penal Law produced two written codes: The Code of Criminal Instruction of 1808 and The Penal Code of 1810 The Code of Criminal Instruction emerged from a blending of the inquisitory procedure and the accusatory procedure. The Penal Code resulted in the creation of a list of definable offenses. A number of reforms followed the creation of these codes, which generally tried to individualize the punishment to the particular offender. Reforms included the development of a suspended sentence for juveniles in their early stages of delinquency, such as first-time offenders, stiffening of punishment for recidivists, probation, parole, and alternatives to imprisonment. In addition, reform measures were taken which strengthened the rights of the accused. Substantial reform has taken place in the last few decades. In 1958, the Code of Penal Procedure replaced the Code of Criminal Instruction. On July 22, 1992, a new Penal Code was presented, which went into effect on March 1, 1994. The New Penal Code has retained the tripartite distinction of crimes, misdemeanors, and violations, which was first established by the Penal Code of 1810.
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The Code also addresses some new issues such as corporate crime, the development of alternative punishments to the deprivation of liberty, and reinforcing the severity of punishments for criminals who have committed more serious offenses. It also includes definitions of new crimes, such as offenses wherein persons are placed in dangerous situations by others, ecological terrorism, sexual harassment, crimes against humanity, and genocide. CRIME
Legal classification: Under both the Penal Law and Penal Procedure, there is a tripartite distinction
of offenses based on their respective seriousness: crimes, misdemeanors, and violations. (New Penal Code, Article 111-1). There are distinctions between completed and attempted acts for crimes and misdemeanors, but not for violations. Under the Penal Code, crimes and misdemeanors can incur a 20 year sentence and a 5 year sentence respectively. Violations can incur a 2 year sentence. However, in practice, sentence length is generally 10 years for crimes, 3 years for misdemeanors, and 1 year for violations. Crimes are also classified into attacks against persons, attacks against property, and attacks against public security. Attacks against persons include intentional homicide (murder, assassination, infanticide), intentional violence (non-intentional death, harm resulting in a permanent injury), and rape (including rape with more than one offender, aggravating circumstances, simple rape, and rape of a minor under 15 years of age). Attacks against property include theft, robbery, fraud, breach of trust, aggravated robberies, and vandalism. Attacks against the public security include counterfeiting.
* Age of criminal responsibility: The age of criminal responsibility is fixed at 18. * Drug offenses: There were 66,775 drug offenses recorded in 1992. About 17% of the crimes and
misdemeanors can be linked to drugs. (Minister of the Interior, 1993: 43). POLICE 1. Administration The role of the police is generally to ensure that the laws are observed and enforced. Efforts are also directed at the prevention of delinquency. Page 31 of 57
Police headquarters are in Paris. The police force is under authority of the Minister of the Interior. At the top of the police hierarchy is the General Director of the National Police who oversees four divisions. 1. The Central Division of General Information controls information services concerning political, economical, and social issues. 2. The Central Division of the City Police is in charge of city law enforcement. 3. The Central Branch of the Judiciary Police is in charge of coordinating the search for the most dangerous delinquents and the investigation of the most serious offenses. 4. The Division of Territory Surveillance is in charge of State security. In French society, the administrative police generally maintain peace and order, such as the regulation of traffic. A special squad of administrative police, the Intervention Group of the State National Police (Groupe d'Intervention de la Gendarmerie National) was created for anti-terrorist operations. In addition, municipal police contribute to law enforcement in the municipalities. The State police force is under the authority of the Defense Minister. It fulfills the role of the administrative and judicial police in rural areas. There are also special customs police who work to control illegal entry of persons into the country to attack the public order.
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Proposed criminal justice model in terms of trial of cases in criminal court in Bangladesh
The basic principle which is followed in criminal justice system under these Codes is that the accused should be presumed as innocent and the prosecution, by adducing cogent and reliable evidence, shall have to prove that the accused is guilty of the offence alleged. In other words, there is onus upon the prosecution. Further, the courts also follow the principle that the prosecution must prove its case beyond "reasonable doubt" and whenever the courts find any flaw in the evidence of the prosecution, for the sake of "fair trial" give acquittal to the alleged accused by resorting to "benefit of doubt". However, neither the expression "reasonable doubt" nor the expression "benefit of doubt" are defined or explained in any law (4 MLR (HC) 87 Para 12). It is often said that one of the wellknown maxims of criminal trials is that it is better that ten guilty persons be acquitted rather than one innocent person be convicted. This maxim is often misunderstood. It means nothing more than this that the greatest possible care should be taken by the court in convicting an accused. The presumption is that he is innocent till the contrary is clearly established. The burden of proof of proving that the accused is guilty is always on the prosecution. If there is an element of reasonable doubt as to the guilt of the accused, the benefit of doubt must go to him. The maxim merely emphasizes these principles in a striking fashion. The Existing Principles of Criminal Trial: Presently, criminal trial proceeds upon the basis some principles some of which breed questions as to the fairness of justice. Following are the major characteristics of the Criminal trial System in Bangladesh. Adversarial Process as opposed to inquisitorial system: Criminal Justice System is accusatorial or adversarial in nature meaning that the whole process is a contest between two parties one of whom is State and the other is accused of crime. Court plays no significant role in preparation of a case; it takes only a non-partisan role. Cases are tried on evidence adduced by parties. The Judges acts as an umpire between parties. Presumption of Innocence: A person accused of a crime is presumed to be innocent until the prosecution proves his guilt.
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Criminal Standard of Proof: Guilt of the accused must be proved beyond any reasonable doubt. If there is a little doubt in proving the elements of the offence concerned, the accused will be set free.
Onus (Burden) of Proof: In criminal proceeding, the basic rule is that the prosecution bears the legal burden of proving every fact in issue. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. The rule is that „he who asserts must prove‟. But if the accused wishes to bring the case within any exception (general exception or private defense or special exception made under any penal statute), the burden of proof lies upon him.
Punishment of wrong, but not enforcement of rights: Criminal Justice System consists in the punishment of wrongs. Normally in a criminal justice, the injured person claims no right, but accuses the defendant of wrong.
No Retrospective Operation of Criminal Law: Retrospective means looking backwards having reference to a state of things existing before the Act in question. It is a settled principle that criminal laws have no retrospective operation and retrospective effect in the eye of law. Constitution of Bangladesh also ensures that no person shall be convicted to any offence which is not in force at the time of the commission of the act. Article 11(2) of the Universal Declaration of Human Rights 1948; Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950; Article 9 of the American Convention on Human Rights 1969; Article 7(2) of African Charter on Human and People‟s Right 1981 etc. also confirms that criminal law must not have any retrospective operation.
Interpretation of Criminal law: It is a general rule that penal enactments are to be interpreted strictly and not extended beyond their clear meaning. A penal statute must be construed according to its plain, natural and grammatical meaning. Benefit of doubts goes to the accused in this justice system. Special criminal law prevails over the general criminal law. No one shall be convicted twice for the same offence.
One Party will be the State: Generally, it is presumed that the party injured by a crime is not only the victim but also the State. Crime is regarded as the invasion of public rights and duties. It affects the whole society. That is why the State takes the responsibilities to bring an action against the offender.
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And the Loopholes during the stage of Criminal Investigation and Prosecution:
Unfortunately, due to flaws in the investigation, prosecution finds it difficult to prove its case and ultimately these flaws are responsible to a large extent for acquittal of a large number of accused. It has been noticed that – (i) The investigating officers, in many cases, are found to be not discharging his duty properly due to inefficiency or negligence; it is highly unfortunate that the investigating staff has not been able to win the confidence of the public. Possible Alternatives: So it is immense needed to recruit or appoint efficient dedicated and committed officer in investigation agency. (ii) The investigating officer deliberately, being influenced by the accused, makes unnecessary delay in starting the investigation and recording statements of the witnesses. But if the police officer receives enough salary for comfortable livelihood they might not be influenced by the public at large. Sometimes they do not record the statements while examining the witnesses, but make a synopsis of what the witnesses said to him at the time of examinations. Then at his leisure, he prepares a record of those statements. Naturally, many vital points or facts then do not find place in the statements of those witnesses. Possible Alternatives: In this situation more dedicated and energetic officers is to be appointed. The existing prosecution system in Bangladesh is not effective in many cases to the justice system. Hitherto, in some specific areas we need some reformation to give fully effective to the criminal justice system. The authorities of Bangladesh must ensure reforms to the prosecution system as well as the institutions related to the criminal justice system in compliance with the international standards and norms. To this end they should: 1. By establishing an independent and permanent prosecution service rather than a disposable one under executive control and train all persons recruited to it 2. By making some specific rules for recruiting the prosecutors through an independent and transparent process 3. Also Introduce a „One Stop Service‟ Centre to the courts where parties can receive quality legal support, especially in the drafting of complaints, making of primary inquiries, arranging of medical examinations and recording of testimonies.
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Loopholes and Possible Alternatives at the Stage of Criminal Trial:
1. The Code of Criminal Procedure, the Evidence Act also provides that the entire onus is upon the prosecution except in few cases such as, where the accused pleads alibi, the accused shall be required to prove the same. There is no onus upon the accused. It is not good in all cases. It would not be peculiar to impose upon him the burden that he is not guilty. Particularly in rape cases, this principle is mostly needed. It‟s harassment upon the victim to disclose the entire incident before the court. 2. The courts mainly follow the principle that the prosecution must prove its case beyond "reasonable doubt" and whenever the courts find any flaw in the evidence of the prosecution, for the sake of "fair trial" give acquittal to the accused persons by resorting to "benefit of doubt". Neither the expression "reasonable doubt" nor the expression "benefit of doubt" are defined or explained in any law. 3. Sometimes while delivering a judgment in a criminal case, the Judges are confused due to conflicting decisions of the superior courts. Some Judges give emphasis on the old precedents but some take into consideration the changes which have taken place in the society especially in the law and order field. To avoid conflicts there should be some definite directions to serve the better justice. 4. There is little co-ordination between the Investigating officer and the Public Prosecutor not even after a case is fixed for trial. I have noticed that most of the Investigating officers and other police officers who appear before the court as witnesses have little idea about the rules of evidence, about how evidence is taken in a criminal case, what are the defects and loopholes in the evidence which leads to acquittal, on what grounds normally acquittal is given, how defence conducts the case, what evidence are to be led in the particular case, on what points prosecution evidence is likely to be attacked by the defence etc. So for the benefit of justice there should be a coordination board to deal with the prosecution case. The board will decide what evidence will be plead and how prosecution will prove the case. 5. During investigation stage and in cases pending for trial before Magistrates records are called for, disposal of applications for bail in the Sessions Courts and then undue delay occurs in returning these records back to the Magistrate‟s Courts. So to evade the situation magistrate need to consider the issue of bail heartily. If the nature of the offence is not grave, the accused should be enlarged on bail. Page 36 of 57
6. After submission of charge-sheet in sessions triable cases the Magistrates do not dispatch the records to the Sessions Judges expeditiously and incomplete records are sometimes sent to the sessions courts by the Magistrates. It makes the proceeding lengthy. So the magistrate is to be more cautious about the matter. 7. Non-attendance of witnesses, particularly, of Government officials, such as, the medical witnesses, the investigating officer, or other police officers connected with investigation, the handwriting or the finger-print expert, etc., on the date of trial. Again failure of police in ensuring the attendance of prosecution witness during trial under section 171 (2) of Cr.P.C in spite of repeated issuance of processes. So proper attendance of the witnesses must be ensured. There should have some provision for punishment of witnesses if he or she refuses, except rare cases reasonable to court, to appear before the court. 8. Lack of proper knowledge of magistrates, judges and conducting lawyers about connected substantive and procedural laws. To serve the matter cordially there should be an institution to render training and guidance to the law officers and lawyers. 9. Non execution of writ of proclamation and attachment under section 87 and section 88 of Cr.P.C. for appearance of the absconding accused and thereby causing delay in getting a case ready for hearing. 10. Lack of sense of responsibility and accountability of judges, magistrates, conducting lawyers and connected staffs. 11. Frequent adjournments of cases at trial stage on less important pleas. 12. Outdated and time consuming mode of recording evidence of witness. 13. Paucity of accommodation, trained manpower, machinery and other paraphernalia of courts. 14. Absence of efficient, knowledgeable public prosecutors and defence lawyers. 15. Absence of full and sincere co-operation of conducting lawyers towards the end of speedy trial. 16. Absence of proper control, supervision and monitoring by the superior courts and authority over respective subordinate courts.
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Chapter Three: Bangladesh Police and Its Future
Arjun Kumar Ghosh and Kishore Kumar Mondal6 Bangladesh Police In Bangladesh, Police have two main roles to play: Crime Investigation and Crime Prevention. Police History In the beginning, there was kin policing, with its penchant for blood feuding and traditions of tribal justice. Many pre-civilized villages or communities are believed to have had a rudimentary form of law enforcement (morals enforcement) derived from the power and authority of kinship systems, rule by elders, or perhaps some form of totemism or naturism. Under kin policing, the family of the offended individual was expected to assume responsibility for justice by capturing, branding,or mutilating the offender. To be sure, there were also theocratic institutions (religious temples, magic rituals, grand viziers), but these were probably used as a system of appeals (sanctuary, refuge) and for purposes not associated with justice. Since war has existed, the police function has been somewhat inseparable from the military function as ancient rulers almost always kept elite, select units (bodyguards) close at hand to protect them from threats and assassination attempts, and although it was more theocratic than militaristic, the argument could be made that the first known civilization (Egypt) was a police state. In Mesopotamia, the rise of cities like Uruk, Umma, Eridu, Lagash, and Ur is widely regarded as the "birth of civilization". However, these cities were in a state of constant warfare, and in terms of looking at which residents bore the closest resemblance to police officers, the argument could be made that captured Nubian slaves were the first police force. This group was often put to work as marketplace guards, Praetorian guards, or in other mercenary-like positions. As a police force, their different color, stature, and manner of dress made them quite visible among the Mesopotamians. The idea of visibility could then be regarded as the first principle of crime control. With the rise of the city-states came forms of criminal justice that could be considered as king's policing. It's conventional to note that things like the Code of Hammurabi marked the first known system of criminal law as well as the start of other practices. The Hebrews developed the Mosaic Law and a rudimentary adversverdana system. The Greeks experimented with highway patrol and jury trials (Athens) as well as secret police and mercenary systems (Sparta). Across Africa, trials were being conducted while sitting down (three-legged stools of justice). Violators were brought before thrones
Student, (ID No-20 and 27) MSS in Criminology and Criminal Justice, University of Dhaka
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of justice in the name of the crown, and to keep the peace meant, for the most part, keeping the king's peace of mind. Greek philosophy (Aristotle, Plato) was largely responsible for popularizing the majesty of justice by associating good law and order with virtue. It's widely recognized that the first organized police force were the Roman vigiles, the first group of nonmilitary and nonmercenary police. They were created by Gaius Octavius, the grand nephew of Julius Caesar, around 27 B.C. After his uncle was assassinated, little Octavius swore revenge and rose to power with a desire to reform Roman society. Once he became ruler, he took the name Augustus Caesar, or more simply Augustus, the first emperor of Rome. Let's take a close look at the steps involved in establishment of the world's first organized police force: * the first thing Augustus did was create a special unit, called the Praetorian Guard, to protect him from assassination. 9000 men were selected and divided into 9 cohorts of 1000 each. 3 of these cohorts operated as undercover operatives housed among the civilian residents. The Praetorian Guard eventually became involved in assassination plots themselves, and were disbanded or reabsorbed by the military. * the second thing Augustus did was create a daytime city fire brigade of 600 slaves and spread them among 14 separate precincts. The slaves proved inadequate and were disbanded, but the prefect (precinct) system proved workable. * the slave fire brigade was replaced by urban cohorts, headed by a prefect of the urban cohorts. These were a less select military unit of men who weren't good enough to get into the Praetorian Guard. They were several thousand of them. They were primarily responsible for fire safety during daytime hours, and they were fairly inadequate at it. * the urban cohorts were supplemented by nighttime cohorts, and there were several thousand of them, recruited and selected from among freedmen only. They were known as the vigiles (watchmen) of Rome, and were empowered not only to fight fires but to arrest law breakers. The prefect of the vigiles eventually became a powerful man, passing judgment on most lawbreakers, except for serious lawbreakers who had to be turned over to the prefect of the urban cohorts. The vigiles were armed with clubs as well as short swords. They eventually took over the duties of the urban cohorts. The middle ages either had no system of law enforcement or one of two systems, depending upon what part of the world you were in. Where law enforcement existed, it was most likely a variety of the watch system -- a system premised on the importance of voluntarily patrolling the streets and guarding cities from sunset to sunrise ("2 A.M. and all's well"). The predominant function of policing became class control (keeping watch on vagrants, vagabonds, immigrants, gypsies, tramps, thieves, Page 39 of 57
and outsiders in general). Despite some innovations during this time period (the Magna Carta of 1215 being a notable example), most of this era was characterized by lawlessness and corruption. By the 1500s, there was no country in the world with more robbers, thieves, and prostitutes than England. Other countries, too, experienced lawlessness to such a degree that citizen groups, known as vigilantes, sprang up to combat crime. History of Bangladesh Police7 There is a long and very much old history of police. A study of history shows that police is as old as the civilization. In the city state of Rome police became a special institution by about the time of Augustus towards the Middle of the first century B.C. In case of Bangladesh the history of policing is also very old. Manushanghita, the hieroglyphics of Emperor Ashoka, and the stories of renowned travelers are the main sources of composing our history. These sources also give clues to compose the fragmented history of Bangladesh Police. In Orthoshastra by Koutilla, nine types of spies are mentioned. During that period policing was confined in the efforts of collecting intelligence in order to curb anti-governmental activities and to maintain law and order in the society. The duties of under cover spies were extended such a way that they used to conduct surveillance over the activities of ministers, civil and military officials. For this all means of temptations and instigations were used. Information about investigating techniques and investigating authorities may be found in Orthoshastra. The procedures of punishing the accused are also found in this book. Hence it maybe assumed that there was one kind of police under the local autonomous system in the rural and urban areas. Details of policing activities during the middle age cannot be found as well. However, during the periods of the great sultans, an official holding the position of Muhtasib used to perform the duties of policing. This person happened to be the chief of police and the in charge of public works and the inspector of public ethics simultaneously. In urban areas, Kotwals were responsible for performing police duties. Information regarding police systems during the Mughal period can be found in the book Aain-E-Akbori. The policing system introduced by Shershah Shuri, was further organized during the period of Emperor Akber, the great. The Emperor organized his administrative structure introducing Fouzdari (the principal representative of the Emperor), Mir Adal and Kazi (the head of judicial department) and Kotwal (the chief police official of larger cities).
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In 1858 full control of the Indian Territory was taken over from the East India Company by the British government. The success of the London police organised under Peels Act of 1829 prompted the British government to reform the police system in the sub-continent on the line of the British constabularies. With this end in view a police commissioner was set up 1840 and on the recommendation of the commission of the Police Act (Act V of 1861) was passed by the British Parliament. Under this Act a police force was created in each province of British India and placed under the control of the provincial government. After partition of the Sub-continent in 1947 police force in Bangladesh was first named as East Bengal Police and then as East Pakistan Police and it continued to function as provincial police force in the same lines as during the British rule. The most glorious chapter of the history of Bangladesh Police came when Bengali-speaking police officers participated along with the citizens in Bangladesh Liberation War. During the liberation war a large number of police officers from all ranks including a Deputy Inspector General, some senior Superintendents of Police and many other gave their lives for the cause of liberation. Many police personnel embraced martyrdom on 25 March 1971 fighting with outdated .3o3 rifles against the Pakistani invaders. The resistance by the Bengali members of police at Rajarbag is basically the first chapter of armed struggles during the War of Independence. This armed resistance was a clear indication to all that they had no other alternative but to go for an armed struggle to achieve independence. The name and address of 1262 police officers of different ranks could be listed who sacrificed their lives for the independence of Bangladesh during the liberation war. After the emergence of Bangladesh as an independent country on December 16, 1971 the police force was recognized and it assumed the role of a national police force. Bangladesh Police as like as other police forces over the world is primarily responsible for the preservation of peace and order, protection of life and property of the people and prevention and detection of crime. The traditional role of police in Bangladesh has undergone significant change after the liberation. The role of police is no longer confined to maintenance of law and order and prevention and detection of crime. To meet the need of an independent and developing country the police is now required playing a significant role in developing state and such kinds of activities by providing the basic security required for sustained economic growth of the country. Police also is contributing substantially in this field by keeping under control economic crimes which retread the process of the development. It is further playing a vital role in dealing with insurgency in some areas of the country which impedes development activities and threatens the security of the state.
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PROBLEMS AND PROSPECTS There are many problems to be addressed in the reform and renewal of the Bangladesh Police. These include: Shortfalls in supervisory and managerial competence; Police are under-resourced and under-trained; Lack of specialized technical capacity to deal with emerging crimes; Lack of confidence in the police expressed by many members of the community, civil society and business; Lack of sensitivity by the police on the plight of victims of crime, particularly women, young people, minorities, the landless poor, street people and other vulnerable groups; The management and effective operations of the police is adversely impacted by external influences with great regularity; The low number of women police and their low representation in decision making positions; The police having a propensity to focus on protocol, ceremonial and static security tasks at the expense of core duties; The machinery of policing has not evolved over time and does not meet the needs of present-day Bangladesh; Inefficiency use of police resources and lack of competency by officers performing many critical functions without adequate (or any) training; The existence of opportunistic and institutional corruption in a range of shapes and forms; Generally low motivation and morale linked to low pay, poor working conditions and limited promotion prospects, especially at the lower levels; Inadequate overall strategic planning, including human resource and career development, transparency and accountability of function and sustainability of operations; and Widespread abuse of authority, whilst accountability and transparency are lacking. The Bangladesh government and the Bangladesh Aid Group have taken seriously the idea that Bangladesh is the test case for development. In the late 1980s, it was possible to say, in the somewhat patronizing tone sometimes adopted by representatives of donor organizations, that Bangladesh had generally been a "good performer." Even in straitened times for the industrialized countries, Bangladesh remained a favored country for substantial commitments of new aid resources from a strikingly broad range of donors. The total estimated disbursement for FY 1988 was estimated at US$1.7 billion, an impressive total but just US$16 per capita. Half of that total was for food aid and other commodities of limited significance for economic growth. Even with the greatest imaginable efficiency in planning and administration, resource-poor and overpopulated Bangladesh cannot achieve significant economic improvements on the basis of that level of assistance. The picture of day-to-day and even year-to-year performance of the economy of Bangladesh is a mixture of accomplishment and failure, not significantly different from that of the majority of poor Third World countries. The government and people of Bangladesh are entitled to take some pride in the degree of success they have achieved since independence, especially when one contrasts their Page 42 of 57
success with the gloomy forecasts of economists and international experts. The international donor community, led by the World Bank, similarly can be proud of the role it has played in assisting this "largest poorest" nation to become a respected member of the family of nations. There are some specific problems to be addressed in the reform and renewal of the Bangladesh Police through the PRP8. These include: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Shortfalls in supervisory and managerial competence; Police are under-resourced and under-trained; Lack of specialized technical capacity to deal with emerging crimes; Lack of confidence in the police expressed by many members of the community, civil society and business; Lack of sensitivity by the police on the plight of victims of crime, particularly women, young people, minorities, the landless poor, street people and other vulnerable groups; The management and effective operations of the police is adversely impacted by external influences with great regularity; The low number of women police and their low representation in decision making positions; The police having a propensity to focus on protocol, ceremonial and static security tasks at the expense of core duties; The machinery of policing has not evolved over time and does not meet the needs of presentday Bangladesh; Inefficiency use of police resources and lack of competency by officers performing many critical functions without adequate (or any) training; The existence of opportunistic and institutional corruption in a range of shapes and forms; Generally low motivation and morale linked to low pay, poor working conditions and limited promotion prospects, especially at the lower levels; Inadequate overall strategic planning, including human resource and career development, transparency and accountability of function and sustainability of operations; and Widespread abuse of authority, whilst accountability and transparency are lacking.9
Proposed Suggestion: Alternative Reform Proposals for Bangladesh Police:
Brutality and corruption are not the recent phenomenon of the police force of this region, rather the available history witnesses the reality from the Mughal period. Police has been practicing torture from the very beginning. In 1813 a Committee of the British Parliament commented on the police brutality that police was appointed to save the villagers from the robbers, but they so brutally tortured the villagers which was no less than that of the robbers. After the creation of new police force in 1861, the British rulers understood that they had created a Frankenstein. In 1869 they took initiative to
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reform the police, but it failed to bring any good result. In 1902 the Fraser Commission was appointed and it found the police high-handed, incompetent and corrupt. After 1947 the police force of East Pakistan continued to function under the structure and rules established by the British rulers.10 In 1948 the East Pakistan police were agitating in Dhaka. In this context a six-member Commission was formed to reform the police, with Justice Sahabuddin as the President. This Commission gave their report in 1953, but it was not implemented. In this context another police unrest took place in 1955. Later on a Police Commission was formed in 1959, and another in 1969, but recommendations of none was implemented. After the establishment of Bangladesh a Police Commission was constituted in 1978. Another Commission was formed in 1986 with Toiabuddin Ahmed, then Additional Inspector General of Police, in the chair. Government accepted partially the reports of these two Commissions for implementation. In 1988 a Police Commission was formed under the leadership of Justice Aminur Rashid, and government partially implemented the recommendations of this Commission.11 Nine Police Commissions were formed to reform the police from 1960 to 1989. But successive governments did not take concrete measures to implement the recommendations, only some recommendations were implemented partially. In the absence of any effective reform police is still identified as oppressive, perpetrator, corrupt and abuser.12 The ultimate objective of police reform in Bangladesh is to shift from a colonial policing system to a democratic structure where the police works primarily for public interest and not the interest of the ruling party or any influential group. The police should uphold a democratic system based on the observance of human rights, facilitate access to justice to all without discrimination, and secure the rule of law based on the norms of accountability, transparency, equality, and community participation. To do this, neutrality and autonomy of the police must be guaranteed. Any reform agenda should therefore protect the police from external undue interventions and give operational autonomy to the officers while ensuring meaningful and strong oversight, accountability, and transparency with its policy directives and strategic goals.13 However, recommendations on the following areas are made by the different development partners and civil society and other non-governmental organization in different occasion.
Karzon, S.H.R.(2008). Theoritical and Applied Criminology, Dhaka: Palal Prokashoni. p.228 Ibid 12 Ibid 13 http://www.adb.org/Documents/Books/Strengthening-Criminal-Justice-system/chap03.pdf
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Amendment of laws and regulations B. Capacity building C. Institutional administration
Anticorruption mechanism E. Infrastructure development F. Improvement of service delivery G. Establishment of community policing
A. Amendment of Laws and Regulations The Police Regulation, Bengal 1943 was written with a view to fulfill the demands and needs of the British Government. Now that Bangladesh is an independent country, this regulation is no longer relevant nor productive. Moreover, as there was no constitution yet at the time these regulations were formulated, many provisions are not consistent with the spirit of the present Constitution. The immediate modification of these laws and regulations is therefore necessary.14 Likewise, the present Police Act 1861 should be replaced by a new one, which should determine the responsibility and accountability of police. The Act should establish effective police management and promote professionalism in the department.15 Further, A strategic law cell/commission composed of former judges, lawyers with relevant expertise, former inspector generals of police, attorney generals, and other experts should be established to review these laws and regulations and propose new or amendatory legislation where necessary.16 B. Capacity Building Both long- and short-term measures should be undertaken to increase the number of police personnel. Taking into consideration the poor ratio between the population and the police as well as the economic situation of Bangladesh, a mechanism should be devised to appoint police officers from the community. The number of women police should also be increased to deal with women-related issues. In terms of increasing competence, a new curriculum for police education and training should be developed with a view to making the Bangladesh Police more capable, service-oriented, peoplefriendly, and efficient. Technical training must be intensified to build expertise and keep abreast with modern technology. Training on forensic toxicology, forensic serology, DNA analysis and data bank, drug analysis, food analysis, and analysis of explosive substances should be administered to members of the forensic division.17
14 15 16 17
Ibid. Karzon, S.H.R.(2008). Theoritical and Applied Criminology, Dhaka: Palal Prokashoni. p.230 http://www.adb.org/Documents/Books/Strengthening-Criminal-Justice-system/chap03.pdf Ibid.
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C. Institutional Administration Use of the police for political, economic, and personal interests is a practice that must cease altogether. To do this, attitudes of both those in power and the police should be changed. Those in power should realize that the police are not to be used for political and personal ends. The police must be given sufficient independence in the performance of its duties and functions, free from external pressure or influence. To safeguard its independence, the police need to be given a lump-sum budget in each fiscal year and accorded enough discretion to utilize this budget according to its needs, provided there is accountability and transparency. In terms of human resources, the police leadership must build a foundation for quality police services. The recruitment procedures should be reviewed to allow two entry points (i.e., ASP and constable) and provide for the participation of an independent third party in making appointments to ensure transparency and integrity. Educational qualifications should also be reviewed and revised to meet high standards of policing. In addition, the promotion system should be standardized based on merit and competence. There should also be security of tenure to shield police officers from politically motivated transfers and removal from service.18 D. Anticorruption Mechanism We need to establish an Independent Anti-Corruption Commission, like ICAC (Independent Commission Against Corruption) of Hong Kong, to combat all pervasive corruption of Bangladesh including the corruption of police. In 1973 ICAC of Hong Kong was established to investigate the corruption of a police officer. Then the Commission declared its crusade against corruption and successfully rooted out corruption from Hong Kong. Following the example of Hong Kong, many countries have established Independent Anti-Corruption Commission to address the vice.19 We may establish a Public Safety Commission or a Security Commission, which should “i) lay down
broad guidelines for preventive and service-oriented functions by the police; ii) evaluate the performance of the police every year; iii) function as a forum of appeal to dispose representations from officers regarding their being subjected to illegal orders and regarding their promotions; iv) generally review the functioning of police force.”20
D. Infrastructure Development The Thana building should be situated on government land. The practice of housing a police station in an improvised or rented accommodation should be avoided. All police stations should have sufficient toilet facilities for the staff, detainees, and visitors. Necessary furniture and fittings, as well as equipment, including land telephone, mobile telephone, wireless sets, computer, printer, fax, internet, and CCTV camera, should be regularly supplied to every police station. There should also be a library containing a collection of relevant reference materials. Vehicles such as jeep, police van, motorcycle, bicycle, and boat should be at the disposal of the police when needed. Adequate funds should be
18 19 20
Ibid Karzon, S.H.R.(2008). Theoritical and Applied Criminology, Dhaka: Palal Prokashoni. p.229 Ibid.p.230
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made available to meet the operational and other expenses of the police station. In consideration of the families of police officers, residential accommodation should also be available within the thana campus for police officers and their families.21 E. Improvement of Service Delivery To facilitate dissemination of information, there should be an information board beside the main gate of the police station stating the procedure for filing GDs and FIRs, meeting the arrested persons and others, making complaints against police harassment, and all other services delivered by the police station. Inside the station, a receptionist should be stationed to assist complainants and visitors. The reception should keep a database of relevant and frequently requested information. Duty officers should always properly record allegations, GDs, and FIRs in a computer database designed for filing complaints. Services should also be available for filing by electronic mail or telephone. It is recommended that police stations have three main sections: (i) administration section, responsible for transport, information technology, accounts, housing, custody, reception, arranging meetings with the arrested persons and the people in safe custody, receiving GDs, FIRs, etc., issuing certificates, maintaining arms, warehouse, etc.; (ii) investigation section, responsible for investigating all types of cases and lawsuits 50 Strengthening the Criminal Justice System in the prescribed time and submitting investigation reports; and (iii) law and order section, responsible for community policing, patrol duty, security of important persons, external duty in religious, educational, and social functions, and political gatherings.22 G. Establishment of Community Policing Necessary laws should be enacted to institutionalize the community policing system. Budgetary allocation should be made available to facilitate community policing all over the country. At present, the Bangladesh Police is a “force,” not a “service” delivery organization. A radical paradigm shift is imperative to transform the “Bangladesh Police Force” into the “Bangladesh Police Service.” Although an enormous challenge, this is not impossible to achieve if all parties cooperate to undergo and sustain a long-term police reform agenda.23 Proposed Reform Agenda The demand for police services has increased at a rate faster than the growth and expansion of the service delivery capacity of the police. Crime is increasing; the criminal justice system is cracking under
Ibid. Ibid. 23 http://www.adb.org/Documents/Books/Strengthening-Criminal-Justice-system/chap03.pdf
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heavy workload; society‟s expectations from the police are high but the police‟s status and resources are poor; forensic science facilities are outdated and inadequate; laws are stacked against the police; public cooperation is invariably missing; and working and living conditions leave a lot to be desired. Corruption, incompetence, and failure to control the law and order situation plague the police force. Above all, there is a culture of political patronage that perpetuates impunity and absence of accountability. Clearly, it is time to transform the Bangladesh Police into a true public servant and elevate the sense of security of the people that is essential for the socioeconomic development of the country. The PRSP formulated and approved by the Government has identified key issues that require attention. These include lack of(i) a special police force to deal with special crimes, such as heinous crimes, economic crimes, and cyber crimes; (ii) coordination among law enforcement agencies; and (iii) a research cell to investigate the nature of changing crime and the appropriate methods for handling them.24 The
Police Investigation requires expenses. Investigating officer has to visit the spot several
times, communicate with different persons, take initiatives for the arrest of offenders and spend money for various purposes along with the stationary costs of paper, pen and photocopy for the submission of a police report he has to submit four to five sets of report which in average need 120 pages. But there were no financial allowance for the cost of investigation. For this reason, there was no alternative for an investigating officer but to take bribe from the party of case. To solve this problem government should be decided to pay investigating officer the costs of investigation.25 It can be said that Police administration should be revamped to suit the requirement of the hour. But the absences of good governance and endemic corruption have led to the diversion and misallocation of resources which blatantly stand in the way of ensuring social justice and economic equity. Successive government have talked of police reforms more often than not but in actuality, in most cases, have only increased the force by a few thousands or changed the police monogram and the color of police dress and blew the trumpet of taking tremendous stride in police reform. But experience shows that those cosmetic face-lifts have not brought about any qualitative change.26
http://www.adb.org/Documents/Books/Strengthening-Criminal-Justice-system/chap03.pdf Ibid 26 http://www.crisisgroup.org/en/regions/asia/south-asia/bangladesh/182-bangladesh-getting-police-reform-ontrack.aspx
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Chapter Four: The Criminal Correction in Bangladesh: Problem and Possible Remedies
Rockfar Sultana Khanom and A.S.M. Fasi Uddin27 The administration of criminal justice system is basically conducted by four organs within the state jurisdiction which are the Police, the Prosecution, the Court and the department of correctional institutions like the prisons. The Police usually file the cases and register the complaints on behalf of the „state party‟ as a law enforcing body; the Prosecution critically analyzes the degree of relationship of the accused with the offences to prove his criminality; the Court hears both the Prosecution and the defendant along with necessary documents of evidentiary value and thereby reaches the decision by taking into account the intentions of the accused in relation to his commission and omission of the act measuring his extent of liability or criminality and finally the correctional institutions are supposed to infuse in them, through/beside the courses of punishment, teachings of moral ideas and values so that they revert from the wrong track to the right one with the sense of self-esteem, self-evaluation and self-criticism. The Correctional philosophy Philosophy behind the law is more important than the law itself. This is why we need to ponder the ideal and primary goal of the prisons. The concept of jail or prison system is developed with a view to correcting the offenders and not torturing them only. The theory of „Reformative Punishment‟ underlies the introduction of prison institutions though the prison system partly serves the purposes of „Deterrent‟ and „Preventive‟ theories of punishment. This heralds that a prison cell is, in spirit, a reformative and rehabilitative place to correct the criminals and send them someday back to the society as a part of the normal citizenry. No man is born criminal and no criminal commits crime by virtue of any defect acquired at the time of birth which signifies that „criminality‟ is no matter of heredity and, hence, the criminals are also not incorrigible. Civil Justice System mainly focuses on reimbursement of losses of the aggrieved party by damages often on monetary basis and imprisonment is scarcely awarded for a civil wrong but the Criminal Justice System mainly aims at „Confinement‟ (depriving the accused of his rights to freedom of movement) to incapacitate him to further commit any wrongful acts by the ways of taking away the life, liberty, joy, freedom etc. and by inflicting physical as well as mental pain for a limited or unlimited span of time.
27 Student, (ID No: 07 and 10) MSS in Criminology and Criminal Justice, University of Dhaka
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For these purposes, the criminal courts usually award the accused various types of punishments, both corporal and monetary, including the penalties of death, imprisonment (for lifetime or limited period of time; simple or rigorous), solitary confinement, forfeiture of property and fine. Though the spirit of death penalty or imprisonment for life is not that analogous with the reformative and rehabilitative ideals, the imprisonment (simple or rigorous) for a limited time span and solitary confinement are the focal fields to relate to correction and rehabilitation actions under the prison system. Reformative approach, which may best be substituted with “Therapeutic Approach” as well, to punishment by confining the criminals within the prison cells may be, and also is, best reaction of a state to crime and criminality because it simultaneously contributes to the punitive and preventive goals. A criminal grows up bit by bit as „criminal‟ being driven by various stimulating things around his surroundings just like getting sick due to viral infections. So, conceptually, the prison system is more adjacent to corrective approach than the punitive one; if not, then there‟s no justification of state‟s financing the feeding and lodging of thousands of inmates in the prisons with necessary provisions. Prison System of Bangladesh The legislation governing the administration and management of the prisons in Bangladesh is enumerated as the Prisons Act, 1894, the Penal Code, 1860 (Act No. XLV of 1860), the Code of Criminal Procedure, 1898, the Code of Civil Procedure, 1908 (for the civil prisoners), the Prisoners Act, 1900 (Act No. III of 1900), and Volumes 1 and 2 of the Jail Code. Inspector General of Prisons is at the top of the Organogram of the department of prisons. The Ministry of Home Affairs together with the Directorate of Prisons exercises the duties of overall administration and management of the prison system. There are a good number of sergeants, guards and other prison staff under the supervision of the Superintendent of Jails to look after every prison. The highest civilian official and the Deputy Commissioner are empowered to oversee the working of the prisons in district level. Health services to the inmates are provided by the staff of the district hospital. There are about 80 prisons in Bangladesh among which 8 are central jails, 56 district jails and 16 thana jails. The constructions of new prisons are also going on in Gopalganj, Chandpur and Jhinaidaha. Eight central jails are basically places with maximum security measures for the confinement of those under trial or sentenced to imprisonment (for a period specified or for life) or death. The district jails are at the heart of the districts to be used as places for the confinement of all types of prisoners excluding those having a sentence of imprisonment exceeding five years. They have medium security status. Thana jails are basically „detention houses‟ situated at the focal point of some thanas. Among the 80 prisons countrywide, some 16 are not functioning yet. Page 50 of 57
Inside the prisons, there are „cell accommodations’ for the segregation of the confessed and deathcondemned criminals, „association wards‟ for all types of inmates wherein 100-150 prisoners have to sleep in each single dormitory and „floor space allocations‟ having very poor condition of living. Two types of diets are served in the prisons; one is for the ordinary inmates and the other is for the „classified prisoners‟ and it is said that foods of lower nutrition value are served to the ordinary inmates. Decline of Correctional/Rehabilitative Ideal The „vision‟ of the Department of Prisons of Bangladesh is stated as “We shall keep safe and show the path of light” which denotes that this department is by itself pledge-bound to ensure the safety of the inmates and show them the path of light so that they themselves come out of the darkness of wrongdoing and learn to adopt conformity of law in the days to come. The „mission‟ of the Department is declared as “Affirmation of safe imprisonment of the prisoners, maintenance of the strict safety discipline of the jails, humanitarian behavior with the prisoners, giving of opportunity to them for their proper residence, food, medical treatment and meeting with their relatives, friends and lawyers and motivation and giving of training to them with the aim of rehabilitation of them as good citizens to the society”. But today‟s scenario proves that these mission and vision are now only „black letter view‟ and lost their appeal to the authorities concerned. The inmates in the prisons are now living their life which is even „more than subhuman one‟ and they are usually treated by the Police with an inferior approach which is, in no sense, humanitarian; nor even „human‟. Both the mission and the vision dictate that the prisons will be some places of reformation and rehabilitation wherein the path of light will be shown to the inmates and the inmates will be treated with an outlook of rehabilitation to send them back to the society as normal citizens but the reality is totally disappointing. The Constitution of the People‟s Republic of Bangladesh prohibits cruel, inhuman and degrading torture and punishment not justified by law [Articles 31, 32, 33(1&2)]. But the Police are routinely employing physical as well as psychological torture together with cruel, inhuman and degrading treatment during arrests and interrogations clearly violating the provisions of Articles 35(4) and 35(5) of the Constitution which secured a „motion of no compulsion‟ and „safety curtain from torture or cruelty‟ for the accused. Torture generally consists of threats, beatings, claim for monetary gain or the use of electric shock. Though these actions are unjustified by law, the government is hardly seen to take any „counter actions‟ against the perpetrators within the law enforcers by convicting and Page 51 of 57
punishing them. Not to bring them to the book is obviously a „green signal‟ for these perpetrators for going on with further actions which often causes custodial death. Odhikar says that 109 persons died in 2010 in the custody of Police. The custodial death of many BDR personnel has put another sign of violations of law and human rights cum dignity in the country. The law for the time being in force obliges the government to detain and try the juvenile criminals separately from the adults but this legal mandate has been kept in abeyance with plain impunity and, to further mention, hundreds of children were arrested and imprisoned neglecting all the barriers of law and precedents (judicial decisions) to the imprisonment of minors. In BLAST and ASK VS. Bangladesh and others [„Children in Fetters‟ Case, Writ Petition No.1676 of 2003], it was argued that over 400 children and juveniles have been arrested and detained in Dhaka Central Jail only and 1200 more children were so detained in 65 prisons across Bangladesh in complete violation of the provisions of the Children Act, 1974, Section 7 of the Prison Act, 1986, Article 37(a) of the Convention on the Rights of the Child (CRC) and Articles 31 and 35(5) of the Constitution of the People‟s Republic of Bangladesh. Moreover, the government did not permit prison visits by independent human rights monitors and watchdogs in general, including the International Committee of the Red Cross and country‟s National Human Rights Commission (NHRC) which is not a transparent trend. Government-appointed committees composed of prominent private personages in each prison locality monitored prisons monthly but did not reveal their findings in public. Now it is strongly believed that the prisons of Bangladesh are places of high risk just like „mini hells‟ for the inmates‟ life, safety and manly treatment. The shocking matter is that the prisons are generating more crimes than repentance. Prison Overcrowding Now-a-days, prison cells went life-threatening due to the „overcrowding‟. If the correctional and reformative measures are not applied to the inmates, then overcrowding of prison is sure to occur. When the surplus number of the prisoners gets accommodated beyond the prison capacity, then life becomes so as not to be lived, rather to be dragged. In addition, the prisons also lack adequate service facilities and proper sanitation and provide with high temperature as well as poor ventilation and, therefore, contribute towards many unnatural custodial deaths. According to Odhikar, 46 persons died in prison in 2010. According to government estimates, the prison population at the end of 2010 was 69,650 which was more than doubled figure of the official prison capacity of 29,240 only one-third of whom had been convicted and the rest were either awaiting trial or detained for investigation. In many cases, many spend a longer span of time awaiting trial than what they would have been awarded for Page 52 of 57
imprisonment after trial. Insincerity of the concerned authorities, huge backlog of cases, nonattendance of witnesses on the date of hearing, unnecessary lengthy adjournment, delays in completing investigations, acute shortage of judges and magistrates in certain cases, tendency of lawyers to lengthen proceedings etc allow such incidents to happen. Moreover, the inmates have to sleep in shifts due to the shortage of sufficient room in the cells as about 200 inmates are crammed into a 40 square meter space. International Standards Prison overcrowding endangers the basic rights of prisoners, including the right to an adequate standards of living and the right to the highest attainable standards of physical and mental health. These are guaranteed by Article 25 of Universal Declaration of Human Rights and Articles 11 and 12 of the International Convent on Economic Social and Cultural Rights. More specifically, the Standard Minimum Rules for the Treatment for the Prisoners (Rules 9-22) makes specific provisions for prisoners with respect to accommodation, health care, ventilation, floor space, bedding, personal hygiene and room temperatures – all which can be compromised as a result of prison overcrowding. International standards also include provisions to militate against unlawful or unnecessary imprisonment. These apply in particular to prisoners under arrest or awaiting trial, children and the mentally ill. The United Nations Standard Minimum Rules for Non Custodial Measures states:
A. Pre-trial detentions shall be used as a means of last resort in criminal proceedings, with due regard
for the investigation of the alleged offence and for the protection of society and the victim.
B. Alternatives to pre-trial dentional shall be employed at as early a stage as possible. Pre-trial
detention shall last no longer than necessary to achieve the objectives stated under rule.
C. The offender shall have the right to appeal to a judicial or other competent independent authority
in cases where pre-trial detention is employed.”
To better the status of prison overcrowding, the Ministry of Home Affairs in collaboration with the prison directorate launched a project captioned “Improvement of the Real Situation of Overcrowding in Prisons in Bangladesh” in 2008 with the support of German Technical Corporation (GTC) piloting its work in three districts of Dhaka, Bogra and Madaripur. But the scenario remained so as before. This is why the government had to release 1000 prisoners in 2010 to ease overcrowding. Indiscriminate arrest and detention jobs of the Police, these days, have added fuel to the fire. All the prisoners have the right to water access and medical care but actually many of them are not getting Page 53 of 57
and enjoying these minimum rights to living. Odhikar reported that the prisons of Bangladesh are afflicted with numerous problems, including gross overcrowding, lack of vocational and educational facilities, poor nutrition and lack of proper as well as appropriate medical care allowing various diseases to spread. The diseases for which the prisoners have been frequently seen to be treated with medical provisions are diarrhea and dysentery (42%), fever, including typhoid fever (25%), skin diseases (20%), malnutrition (8%), psychological problems (1.5%), and heart problems (1%). Poor sanitary management is the main reason behind the high frequency of diarrhoea and skin diseases (62%) among the prisoners. Besides, the atmosphere within the prisons remains heavily polluted by carbon dioxide, nicotine, sweat and urine emitting from uncovered or broken urinals. The government little tried to improve the condition of the prisoners and also of the prisons which were built a century ago. In most of the prison buildings, the cells are small and cramped, sanitation therein is poor and ventilation is inadequate. Many of the buildings are dilapidated and accommodate prisoners beyond their capacity. The prisoners are supplied with lower quality food which is the prime reason behind their malnutrition and lack of adequate medical facilities is added therewith. Insufficient budget allocation compared to the necessities is also a good indicator in this regard. In the point of Law:- The prison system of this country is regulated by the Acts enacted and Rules made in the British colonial regime to which expected and needed changes have not been brought. At first, these outdated laws and procedures have to be amended to date to meet the necessities of changed time and situation so as to ensure for the prisoners fundamental human rights to a certain extent and standard, welfare scheme and reform programs, vocational training programs, a good salubrious environment, adequate medical service, special attention to women and children and regular monitoring of the overall management. The Bangladesh Jails Reform Commission Report of 1980 may also be taken as a tool for turning the „punitive‟ approach of the prisons to a „reformative‟ one. This Report identified many problems of the prisons of Bangladesh about 22 years ago but the authorities are yet to overcome them. To Resolving Overcrowding: To escape the overcrowding of prisons, „Plea Bargaining‟ system can be introduced in the country. „ADR‟ (Alternative Dispute Resolution) is a term frequently seen to be used in civil suits but in criminal cases, „Plea Bargaining‟ process applies in the form of „ADR‟. „Plea Bargaining‟ is something like pre-trial negotiation between the accused and the prosecution wherein the accused agrees to plead guilty on the condition that some concessions by the prosecution will be made to him. This device is sure to bear fruit in escaping the problems of overcrowded prisons and overburdened courts. This is why it‟s being very popular day by day and many countries of the world Page 54 of 57
have inaugurated it in recent times in their criminal justice system as an alternative way to resolve dispute. India did introduce it in 2005. Medical facilities also have to be enhanced to a large extent because most of the prisons lack primary treatment centers, let alone the hospitals. This is a good sign of utter negligence of the authorities. The inmates have the right to healthy living and their rights to adequate standards of living and sound physical as well as mental health are guaranteed by Article 25 of Universal Declaration of Human Rights (UDHR), Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights and Rules 9-22 of the Standard Minimum Rules for the Treatment of the Prisoners in which provisions in terms of accommodation, health care, ventilation, floor space, bedding, privacy, personal hygiene and room temperatures are embodied. Besides, judicial activism should be made more smooth and speedy with quick disposal of the cases through formal as well as informal or quasi-formal devices. Backlogged cases often dare to cease the „blood circulation‟ of the courts by pushing the whole Judiciary to slow motion. The law enforcers involved in violating human rights and dignity of the inmates, detainees and arrestees must also be brought to the book without delay; otherwise the entire citizenry will fall victim to these „governmentaffiliated criminals‟ who have already made a black horizon in the sky of justice system. Most importantly, the government has to hold a corrective and rehabilitative ideal for those locked up in the prisons in place of its present punitive outlook by infusing in them moral as well as religious teachings and providing for them with vocational coaching. If so, then our prisons will no longer be synonymous with „hells‟; rather they will go as good as „training camps‟ and the criminals will be processed here to be back to the society as sound, righteous and normal humans. Bangladesh‟s prisons are part of the criminal-justice system, which is under immense pressure. Case backlogs run into the millions, crippling the overburdened system. Corruption is also alleged to be rife among criminal-justice agencies. Moreover, there is a clear focus on punitive as opposed to restorative justice, and imprisonment is primarily seen as a way to gain retribution, but rarely considered as an opportunity to change inmates‟ attitudes towards law and society. Prisons in Bangladesh have historically been closed institutions. It is a very recent phenomenon that they are discussed in public – and at an international level. Recent developments illustrate just how far Bangladesh is moving in relation to prison reform, and just how much of an example to the rest of the developing world Bangladesh could become.
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The ultimate reformation of criminal justice system will be possible if the government have will to work on our judiciary, police and correctional system. Although government takes some action on reform the criminal justice system in Bangladesh, but that‟s are insufficient then necessities. Political motivation and interference upon Criminal Justice System is the salient obstacle to implementation of such activities on Criminal Justice reformation. Some study and Baseline survey explore that Police, Lawyer, Jailer/Prison officer even Judges are directly involve in politics and they abuse their power for gaining the political favor. To sum up, we can say that the Criminal Justice System of Bangladesh will be adopted with a new and alternative feasible model if it has overcome some inconsistent rules and laws. And also be modified some system like,By the administration of criminal justice system ensure the definition of legal thought, ensure the social justice, maintain the rules of laws etc; Law enforcement authority ensure the rules on CAT (Convention Against Torture), The judiciary should exert a close scrutiny on conditions of detention and interrogation by the police during the remand procedure, and declare inadmissible any statement which is established to have been made as a result of torture, in conformity with Articles 12 and 13 of the UN Convention against Torture, and the prohibition of self-incriminating statements enshrined in Art. 35(4) of the Constitution of Bangladesh. Considering the large potential for abuse and violations of due process in Bangladesh, first step towards abolition, to: Examine existing law with a view towards diminishing the scope of crimes that attract the death penalty to only those with lethal consequences, in conformity with Art. 6 of the ICCPR. (International Covenant on Civil and Political Rights) The Supreme Court should be abstained from all kinds of cases it should be engaged in limited types of cases so that jurisprudential principle may be flourished. In the prosecution, modern technological documents such as audio, video record, DNA test should have direct evidentiary Value. Forensic should be included in the investigating procedure. The purpose of prison is not punishment but correction & reformation of offender. Therefore, Like Chinese prison, in our prison, there must be entrance of scholars, famous personalities and ex-reformed prisoner to delivery lectures to correct and reform them. After release from the prison, the released person should be under care and supervision of the court and rehabilitated to the society.
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