Law alter views
Curbing globalisation of crime
Dr M Enamul Hoque
The astounding develop-ments which have opened up so many marvellous possibilities for the people of the world have also created new incentives and new avenues for crime. Open frontiers which are of so much benefit for freedom and propriety do not discriminate between the tourists and terrorists. An airplane which have made industry and commerce, travel and communication so easy have become target for extremists and transportation of criminals. The world is becoming more inter-dependent, so too is crime. Crime is going global. This demands not only national action but also international partnership. The challenge is clear, we either work separately and loose or work together and win.
International law recognises the utilisation of legal methods to meet the problems like terrorism and the like which affect the internal security of the country. The term internal security can be said to connote not just an aggravated form of law and order problem but must comprehend within its fold an assurance of peace and provision for necessary infrastructure in which stable and peaceful condition is the prerequisite for pursuing normal vocation and proper utilisation of resources. And here lies the crux of the problem: the economic growth of the country cannot be attained desirably well unless the production oriented atmosphere is ensured in the industrial units and commercial enterprises which are the main components of the overall improvement of a welfare state.
Human security, achieved through the establishment of law and order, enables people to exercise their choices safely and freely, and with confidence that the opportunities they have today are not totally lost tomorrow. Clear laws, enforced justly, transparently and efficiently, are necessary to create an enabling, predictable and working environment. This in turn requires: a) that the laws are known, b) that they are enforced in an equitable and timely manner, c) that an independent and credible judiciary operates to resolve conflicts and make binding decisions, and d) that laws can be revised if/when they cease to serve the purpose for which they are intended.
Some commendable efforts are also being undertaken by civil society organisations and development partners in support of the government's efforts to improve the human security situation, to enable citizens to safely pursue development opportunities in their daily lives. Improving road and transport systems so that people can get to work, refreshing the professionalism of the police and introducing community policing so that the police are acting as 'service-providers' to citizens, training prison and court officials and improving facilities to deal with women and children offenders are noteworthy.
The globalisation of crime has cast its shadow on the effectiveness and adequacy of the traditional policies, practices and procedures, not only in law enforcement but also in correction and rehabilitation like other components of the criminal justice system. As a consequence of increasing crime in Bangladesh like many countries, penal institutions have become overcrowded. Thereby, confinement in overcrowded jails not only impairs the enjoyment of the basic rights of a prisoner but also in many cases intensifies or hardens his/her criminal tendencies. A penal institute is often described as a "school of crime." Obviously overcrowding is relevant for both under trial prisoners and convicts, but is more acute in cases of under trial ones. Reasons for overcrowding include: lack of application of Alternative Dispute Resolution, arbitration, mediation, unusual lengthy procedure of police investigation while prosecution's indifference extends periods for disposal, leading to innumerable adjournments, dilatory tactics of litigants and lawyers, ineffective supervision of court's day to day matters and want of proper coordination among the relevant agencies which are more prone to pass the responsibility on others' shoulders, remand/custody as a punitive measure. This unfortunately suggests something wrong.
It is an illusion to assume that the government alone holds the key to the solution. Human insecurity is like a cancer -- no single group of people or factors have caused it, and it can only be effectively tackled, when all segments of society, local communities and the private sector providing adequate human security in a stable governance system. It is the raison d'etre of all political systems, more so of democratic system. "The main burden for providing and maintaining human security for all citizens falls mainly on the political sector, including leaders and workers. It is (our) abiding hope... that our political leaders and workers in both governing and opposition parties will meet this challenge".
The concept of law changes from time to time and consequently that of crime also undergoes a transformation due to passage of time. Concept of legal equality is a gift of eighteenth century and that of political equality is a gift of twentieth century. With the induction of social and economic equality in the realm of human thought sociological ideas have undergone a sea change and concept of security has been a victim to this transformation. And out of this has emerged two important aspects of enforcement, Rule of Law and International Cooperation.
Basically we need to strengthen efforts at national level, based on democratic values, good governance, transparency, accountability, fair and equitable criminal justice system as a pre-requisite for addressing criminal incidents including terrorism in all its forms and ramifications. Preventive alternative means for the redress of grievances, mediation, arbitration mechanism as well as public participation in decision making process and governance including the involvement of non-governmental organisations and civil society will be added factors too.
Adopting suitable educational measures, preaching of tolerance, peaceful co-existence, anti-violence curriculum academies, special modules on conflict resolution, using media to foster multicultural dialogue, ethical and moral values opposed to violence, inculcation of the principles of human dignity, security and right, will go a long way for the desired peaceful society which is a far cry in the present scenario.
It is in this context of the need to strengthen and sustain current efforts that specific and detailed recommendations are made. One of the main deficiencies in securing human security for the poor is the lack of implementation of existing laws. Therefore, the main thrust of the recommendations is on implementation -- the mechanisms, processes, and implementers -- to improve the human security situation. It is necessary for political leaders and the elite to take a hard look at implementation issues, and assume responsibility for devising appropriate measures and to ensure monitoring of the entirety of the criminal justice system, which deserves critical evaluation and follow up action gained from the practical experience.
Recent efforts to create awareness amongst the population and national institutions on issues of human security and the violation of human rights, and programmes to increase the capacity and improve the efficiency of law enforcement agencies, the judicial system, traditional dispute resolution forums and community policing are extremely welcome. The interventions of donors providing human rights training programmes for the police and judiciary are also a positive development. It is hoped that these initiatives will not only create a greater sense of awareness of human security issues and laws, but also help to instill a culture of respect for human rights and increase professionalism within concerned agencies.
Violence against women, including domestic violence, was a problem, and there continued to be significant traditional, societal discrimination against women. Workplace discrimination against some minorities persisted. There are some limits on worker's rights. Some children, particularly in rural areas, are forced to work during the harvest season. Trafficking in women and girls to other countries for the purpose of prostitution was a problem. However, rigorous provisions are made to help curb the increasing menace of violence and criminal incidence but it is the mundane duty of the law enforcers to change their mindset for humane behaviour with each and everyone within the framework of extant laws of the country. "And while expecting this, the people's cooperation with the four organs of Criminal Justice System i.e. Police, Prosecution, Court and Correction (Jail) is a must and any shortcoming of either of them will jeopardise the desired attainment of human dignity and security -- which is the dire need of the time." (Ref. UNDP Report 2002-Human Security in Bangladesh).
'No democratic state can ever justify what reliable reports tell us about continuing torture, extorted confessions, or the planting of false evidence. Even in circumstances where a genuine threat exists to the well-being of the state, rule of law and due process norms must be followed in order to insure that human rights are protected,' Pitts concluded. (Ref. CSCE News Release-1999 on Uzbekistan)
Globalisation involves the transnationalisation and rationalisation of governance, because of the explosive growth in international organisations, regimes and regulatory agencies. Religions encourage learning and knowledge, and it is in this particular respect that aspect of globalisation has positively helped religions. Religion never speaks of violence rather always speak of humility, charity, modesty, chastity and piety. "World peace is not only possible but inevitable whether it is to be reached only after unimaginable horrors precipitated by humanity's stubborn clinging to old patterns of behaviour or is to be embraced now by an act of consultative will, is the choice before all of us who inhabit this earth".
Do we know enough about the nature of the problem, to know what to do and what are the gaps in analytical works? Is there a role at all for the international community? Donor community needs to be more watchful to ensure that the fund allocated for the deserving ones are fairly utilised be it by government agencies or non-government Organisation. Coupled with them the civil society must be more aware to assert their right and privileges to exact from the implementers of public exchequer. Globalisation touches areas as diverse as trade and commercial life, international exploitation, corruption, child abuse or tourism and the ever-growing interdependence between countries and within countries. We are to devote ourselves to address the challenges of the modern era including problems arising as a side effect of dynamic development of global conglomerates of illicit activities.
An effective Justice System protects the poor from powerful vested interests. The poor is most vulnerable so need the highest priority. The rule of law is essential precondition for economic growth. Equitable development depends on the effective protection of basic human rights and property rights. Lack of trust of public in Criminal Justice Sector institutions, high level of corruption, particularly in lower courts and auxiliary offices, deterioration in quality of police, civil service and judiciary, lack of political will to enforce rule of law, legal and judicial reforms, politics and criminalisation of politics are the factors to be considered duly by pundits and experts.
First, like all innovative exercises, ADR(Alternate Dispute Resolution) needs a motivator or an army of motivators throughout the country. For practical reasons, it is not possible for a sitting Judge to spare the time, energy and effort to assume this role. Retired Judges who are respected by both the Bar and the Bench should come forward to give leadership. That will be paying back to the Bar and the Bench a small part of the debt they owe to the Bar and the Bench for the honour given to them during their working life. The same goes for elderly senior lawyers and sensible citizenry. Nothing can take root by a sporadic effort of a few years. At least two or three generations of lawyers and judges must give their sustained labour to make ADR an integral part of their judicial system.
Secondly, a well thought-out action plan is necessary to make ADR a success. It is not desirable that an avalanche of medication should descend upon the courts all at a time. The courts should refer relatively simple cases first to the mediators. A simple case is one that requires the least judicial effort to adjudicate upon facts and law. A relatively complex case is one that requires a little more judicial effort to discover the facts and law. A complex case is one that requires the maximum judicial effort to ascertain facts and law. Following this criterion, simple cases should be referred first. With experiences gained, relatively complex cases can be referred to mediation. It should not be the aim of anyone of achieve anything overnight.
The gap between the world's richest and poorest countries is widening and hence our task is becoming greater and of more urgent nature to impress upon the economically leading nations that the world cannot ultimately prosper if the poorest continue to suffer and decline. Financial support from international organisations and donor countries can play a vital role to build up correctional institutes to meet current expectations. These bodies also need to be educated that an inmate within four walls, called a cell, jail or whatever, is also a human being. They also need to understand the spirit of “Tokyo Rules 1960” which encourage the adoption of more humane attitudes in the treatment of offenders. UNAFEI and ACPF are well known names to the concerned authorities there. Among various NGO's ACPF Bangladesh has also taken up schemes for rehabilitation of women prisoners and convicts and some other humane measures. But to sustain the programme continued financial assistance is a must and that's where our efforts are thwarted.
The fashion of prevailing not under the authority of law but under unlawful arms was a return to primeval instincts and this is dangerously civil culture of terror. Every country has the right to be counted, it means daring to disagree, speaking out against domination and injustice. To stand up for principle is never without hazard but in the end it is less harmful than lying down and being trampled. “Let us entertain righteous unity that will prevail over imperial threats. The architecture of peace in our time will have to be developed by a coalition of the many who are right though they are separately weak but not by the few who are wrong though they are singularly strong.”
Let us resolve once again to carry out crusade against the morbid and monster power-politics that tends to turn the countries into a strange world where bread is dear and blood is cheap, where crimes of all types thrive and vices of all descriptions flourish, but cardinal and theological virtues perish, where inhuman instincts of hatred, vengeance, tyranny, terrorism triumph over the humane sentiments of love, affection, understanding and forgiveness. Surely our noble intentions and endeavours will take us to the desired goal through our sustained and concerted efforts to a better future, which is demand of not only national states but also of the international organisations for the present and next generation, too.
Before I conclude I cannot check the temptation of quoting Francis Bacon: 'Let not judges also be so ignorant of their own right, as to think there is not left to them, as a principal part of their office, a wise use and application of laws. For they may remember what the Apostle saith of a greater law than theirs: Nos scimus quia lex bona est, modo quis ea utatur legitime'. Which is translated in the Authorised Version, I Timothy 1:8: 'But we know that the law is good, if a man uses it lawfully'
The article is based on his paper presented at the Seminar of United Nations Asia Far East Institute-Tokyo, Japan recently.
The author is former IG police.