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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 185
April 9, 2005

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Star Law Report

Penology : Principles and Practices

Abdul Khaleque

In the state of nature, women's insecurity of body and mind led to the perception of marriage and family which developed into subsequent political institutions called tribal republic, state and empire which gave laws of governance of their realm. The ancient king was despotic; he detained, and even killed, people who held ideas not acceptable to him.

Political accountability, arrest on credible suspicion and knowledge and detention on precise accusation, punishment by impartial court under due process of law, subsequently became the ideals of governance, instead of tyranny, arbitrariness and subverted judicial and administrative process.

We may refer to penological principles and practices: In ancient Rome, the creditor maintained army to capture defaulting debtor, mutilated his body into parts and threw these away for birds and beasts. When Rome reached the pinnacle of constitutional liberty, corruption reached its high water-mark. Romans started to believe that the goddess of liberty was perhaps corrupt. Roman governor aspiring after consulship through election, fleeced his province, kept money with Magistrates to buy votes.

By 1530, Britain recognised capital punishment for treason, killing of husband by wife, murder, larceny, robbery, burglary, rape and arson. Theft of a hanker-chief worth a shilling from shop was enlisted as capital offence. We may cite one British case: Pick-pockets were detected while plying their trade in a crowd assembled to see one of them (pick-pockets) being executed for picking pockets.

In Saudi Arabia, for adultery the offender is stoned to death; the hand of a thief is cut off. In Iran, drug-traffickers are hanged.

England abolished death sentence in 1965, when it was discovered twenty years after hanging a person for murder that there was proven evidence that the victim was not guilty of the offence. After the killing of Lord Mountbatten, a bid for restoration of death sentence in select cases was overwhelmingly rejected.

Modern criminologists opine: punishment which inflicts injury is a sadistic drill based on body-conscious fear; prisoners are posited with human rights; criminology is a reformation of the inner man and his spirit as a corrective for the outer man's criminal aberrations; mental transformation may be brought about by transcendental meditation and high consciousness as a penal agenda.

Justice V R Krishna Ayer of Indian Supreme Court criticised the doctrine of deterrence as "a sublimated version of quasi-mafia culture, operated ceremonially with mace and robes and the rituals of trials, and hallowed by scriptures revealed by Moses, Manu, Hammurabi, Draco, Coke, Hegel and Stephen".

In ancient India, corruption and theft were punished with fine, confiscation of property and banishment. Brahmins enjoyed prerogatives for offences including murder committed against Sudras. Indian offenders had to pass through dangerous tests to prove their innocence: walking through fire; chewing of rice without oozing of blood; touching of red-hot piece of iron without having injury; swallowing poison without vomiting. In water test, the guilty sank. Besides burning of widows, mutilation, hanging, outcasting etc. were also prevalent.

The laws given by the Holy Prophet of Islam (570-632) characterised by devotion to Allah, respect for human rights, honesty and piety without mental reservation have been a blend of religious, moral, social, economic and spiritual values, seen against the background of human urges and needs.

Among the Sultans of Delhi, Bulban introduced ruthless punishment against robbery and other crimes. Feroze Tuglak suppressed the practice of mutilation and torture, and punished bribe-givers and takers. Under the Mughals, punishment was drastic enough to inspire awe and sustain public confidence. Indirect evidence was accepted in case of rape and adultery.

In the modern world, penal agenda covers a wide range of punitive measures: attendance centre, borstal, binding over, care order, cautioning, community home, deferred sentence, detention centre, extended sentence, solitary confinement, fine, hospital order, diversion, parole, prison probation, imprisonment, life sentence, youth custody, hard labour, penal servitude, preventive detention, segregated unit, whipping, retribution and death sentence. Of all punishments, death sentence is the highest order of incapacitation. Imprisonment keeps offender out of circulation. Criminals likely to remain undaunted by lenient penalties are subjected to deterrent punishment, including death sentence in some countries. Since people fear death more than anything else, death penalty is assumed to be most deterrent, the assumption being that man deliberately chooses a course of action in light of foreseeable consequences. Socialist countries claim great reduction in murderous crimes because of death sentence. Despotic countries hang political dissenters and others through a legal facade of trial by subservient courts which cannot vouchsafe due process of law.

Modern sociologists and psychologists see human behaviour as largely unplanned and habitual rather than calculated and voluntary. The deterrent value of death penalty is not seen by them as a scientific proposition but rather as a social conviction to reinforce feelings of vengeance in a particular value system.

In the United States a lot of states has gone abolitionist, death penalty has had no special deterrent value and it was imposed disproportionately on the poor. The United Nations study has concluded that there is no correlation between the existence of capital punishment and the rate of capital offence. Empirical studies, in our context reveal that death sentence or shooting to kill has been sometime successful in quelling extreme anarchy.

In spite of the vision of humanitarian penology and collective transcendental meditation, we feel that the impulse for criminal activities in permissive societies, and criminal delinquency in uneducated or ill-educated and in crimo-genic poverty-stricken countries will continue to justify reasonably deterrent penology. Death sentence in the context of armed and brutal terroristic modus operandi in most crimes in Bangladesh and more specifically in the context of the waves of inhuman crimes like rape, gang rape, rape of children, raping to death, trafficking in women and children, kidnapping for ransom, murder, bomb-acid-and-grenade assaults, custodial torture and killing, illegal export and import, money laundering, arson, white-collar corruption, persecution of women and murder of pressmen is almost a universal demand. At the same time, there is strong and universal articulation for professional, efficient, honest and impartial investigation and trial.

We hope, Bangladesh will endeavour a deep probe into the causes of the waves of crimes and their substantial reduction by national socio-economic and political penal agenda based on national plank of political consensus, will and determination.

Crimes spring from tension, mental overheat, lust, greed, vengeance, enmity, disregard for law and lack of social, family and political peace and inadequacy of control over juvenile delinquency which arises mostly out of broken homes, lack of parental affection and care and control, bad company, deprivations, poverty, lack of education, discipline and moral values and from contagious crimo-genic environment etc.

We must not forget that delinquent juveniles mature up like other juveniles into adults and take over the role of their senior delinquents.

We notice people to take law into their own hands and to lynch accused and suspects in public. It is imperative on law enforcers, civil societies and political parties to tell people that criminals are constitutionally posited in a democracy with human rights and as such cannot be dealt with in any manner other than in the due process of law and that as humans, criminals have also right of private defence.

In Bangladesh, operation of criminal laws follows procedural rituals of investigation or inquiry and trial. The rituals reveal constraints. Witnesses, by and large, tend to exaggerate or understate what they see, hear and know, and to tell lies at will or under pressure or in fear of reprisals, or in lure of gains etc.

Police and lawyer can hardly afford punitive bigotry to respond to prison trauma, flogging and firing squad on the one hand, and gross attitudes when our social regulations break-down, and individuals and groups are left to themselves to be engaged in unregulated activities like gruesome offences including acid-bomb-grenade assaults, on the other.

The operational rituals of criminal procedure in practice brings prosecutor and defence lawyer into a situation to shatter each other's case by exercise of legal skill in the battle of evidence. Unless the prosecutor and the defence lawyer are holistic, they do not hesitate to lynch the truth. Out of the debris of this battle, the court discovers the truth, keeping in view the presumption that the accused is innocent, and then makes up his mind to declare the verdict within the range of the punishment prescribed by law for the particular offence. Midway through this process of trial, the question of credibility of police version and the veracity of confession (if any) apart, the judge is supposed to be innately guided by his/her own belief as to genuineness of custodial security of accused and any extra-judicial interference in the entire procedural ritual. Arrest, trial, conviction and penalty are traditional instruments of deterrence which prospective law-breakers risk, apart from the preventive anti-crime measures prescribed by police regulations, and the security bonds provided by the Criminal Procedure Code with or without surety for keeping peace under sections 107-110, and also the general exceptions: act done by a person bound by law or by mistake of fact believing himself bound by law; act of a judge when acting judicially; act done pursuant to judgement or order of court; accident in doing a lawful act; act of causing harm without criminal intention but to prevent other harm; act of a child under seven, and above seven but under twelve of immature understanding; act of person of unsound mind; act of person incapable of judgement by reason of intoxication against his will; act not intended and not known to be likely to cause death or grievous hurt, done by consent; act done in good faith for benefit of a person without consent, act to which a person is compelled by threats. Besides, the Penal Code provides right of private defence up to death to citizens and others living in Bangladesh.

The criminal laws of Bangladesh are largely committed to the doctrine of deterrence through denial of liberty, through torture of the flesh, and through financial imposition implied in "fine and confiscation of property" provided by the Penal Code. Article 50 of the Constitution, however, provides that the President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. The President can constitutionally exercise this power on the advice of the Prime Minister.

Bangladesh may resort to preventive detention of all categories of citizens. Preventive detention was introduced in Britain in 1908 and repealed in 1967. Detention was intended to apply to mature hardened recidivists, guilts of serious offences and the aim was to protect society by segregating such persons in prison for long period of time. In USA, the Internal Security Act of 1950 is a permanent preventive detention legislation, but with protective clauses relating to war emergency or foreign aggression, warrant issued by the Attorney General, hearing and right of appeal and indemnation. In contrast, the preventive detention law in Bangladesh may be enforced by an administrative order in peace time on mere conjectural grounds. The law does not give any scope of defence to the detainee by lawyer before the Advisory Board of hearing. Such detention is incompatible with the spirit of the legal system of a democracy. Details of detention may be seen in the Constitution.

Years ago, women in Germany came out on the street to protest against intolerable public sex assaults. Their fury went to the extent of attacking the male folk found on the street in the periphery of their protest routes. The fury, indeed, provides the symbolic guidelines against intolerable criminal assaults on individuals, communities and nations.

The author is (retd) IG Police.


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