Looking for justice

Hameeda Hossain
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In recent weeks the Chief Justice went on record to decry the denial of justice to the poor in Bangladesh. In a public address on 18 December, he ascribed the denial of this fundamental right to ignorance, financial costs and systemic delays. The next day, at another meeting, he attributed the violation of human rights to powerful economic and political interests, that thrive in a culture of corruption and impunity. The Chief Justice's lament is surely more than a philosophical aside. While it recognises the need for institutional reform and changes in legal procedures, more significantly it points to imbalances in political power that shape inequities. Similar observations were made by former Chief Justice Mahmudul Amin, especially on the lamentable condition of prisoners.

The costs of injustice, in an increasingly inequitable society, are paid not only by the poor, who are deprived of rights in land, in access to resources and development opportunities, but a growing number who are being marginalised on account of differences of religion, ethnicity and gender. Their demand for social justice itself may have been muted because of systemic deprivation, political subordination or exclusion. But there are limits to such tolerance.

Citizens often turn to the court as the last resort against individual and collective injustice,. Can the courts meet these expectations? The experience of ordinary citizens and numerous legal aid organisations who support their cases, provide evidence of the fault lines in the delivery of justice and the political obstacles that the Chief Justice hinted at. It would be well to take these experiences into account in addressing access to criminal justice.

Reforms within
Legal procedures are generally found to be the first cause of citizens' alienation in the criminal justice system. At the very start, victims of alleged crimes are often reportedly discouraged by the police from filing a general diary or first information report. Complaints from women of domestic violence are generally silenced, in the interests of "family privacy", even though causing grievous hurt is a criminal offence. Delays in police investigations or falsely implicating innocent persons in litigation are well known ways to deflect justice.

The response of the Ministry of Home Affairs to the general discontent with law enforcement has been woefully inadequate. Changes in laws, including to the Nari Nirjaton Ain as recently as 2003 do not appear to have brought about any justifiable improvement. Are we to assume that a change of clothes is all it takes to prevent the brutality which many face, when for example, they are arrested without warrant under section 54 of the Penal Code or remand under section 167? A landmark judgement by the Supreme Court to curtail police aberrations under these sections has indeed been praiseworthy, coming as it did after glaring publicity of two custodial deaths. It is now upto the court to enforce compliance by the executive, rather than allow it to temporise by appealing against the judgement.

There is a popular conception that ineffective executive and judicial action may have tolerated the impunity of criminals and been responsible for repeated violations. In the case of Shima Chowdhury's death in Chittagong Jail in 1997, many women's groups questioned the Court's wisdom in detaining her in "protective custody" in jail, which led to her untimely death. It was in fact this incident which prompted a government circular not to keep women in jail when in protective custody. There was also a question of whether deterrence of such crimes would be better served by calling for a re-investigation rather than an outright dismissal of the charges against the accused.

Under trial prisoners have the least access to legal defence. They are brought to the court's attention only infrequently, and remain unaware of their right to legal aid. As a result, they often remain in prison for periods well beyond their ultimate sentence. This is one of the primary reasons for the prisons holding an excess of prisoners over actual jail capacity. In 2002, over 49,000 prisoners were awaiting trial. Earlier, a legal aid organisation was able to obtain the release of Falu, who had waited for his trial for several years in jail, only after the information had accidentally appeared in the press. This miscarriage of justice could have been avoided with a more sensitive and pro-active approach.

In our neighbouring country, India, Justice Krishna Iyer set a shining example in providing relief to prisoners who lacked legal defense. When, as Supreme Court Judge, he visited a jail in Kerala, to find a 71 year old prisoner who had been arrested repeatedly for house breaking, he passed an order under section 109 of the CrPC that all prisoners in Kerala on house breaking charges be released. Our own courts have issued suo motu orders for the release of foreigners who remain in prison having exceeded their sentence, which should set a precedent for executive action.

Right to "legal defence" is a constitutionally protected right. Perhaps the most urgent need for legal aid is of the indigent who are embroiled in the criminal justice system. Financial costs have been a major constraint to obtaining effective access to justice in such cases, and this has been addressed through legislation setting up a Legal Aid Fund, which is being handled by district legal aid committees, constituted by the District Judge and Bar Association presidents and secretaries. However, this fund was used in only 8208 cases in 61 districts, according to government sources. Substantial funds remain unutilised.

The reasons were that dissemination of information through sign boards in districts and thanas, did not reach users, and the procedure of allocating cases by the committees to a panel of lawyers, who then inform clients is not the most efficient or user friendly. Unless there is direct access between clients and the committee, and unless community groups can maintain pressure on the committee, these funds may not prove their use. Ain o Salish Kendra (ASK)'s experience in holding legal camps to inform both the public and the lawyers in the availability of the legal aid fund in specific thanas points to the need for making this service more user friendly.

Challenging the source of injustice
More menacing to citizens' rights are state violations of fundamental freedoms and human rights or its impunity for powerful perpetrators. How do the courts counter this injustice? When the poor turn to the courts to resist eviction by force from their shacks in urban slums, when religious or ethnic minorities claim their right to lands grabbed from them by brute force and flouting all laws, or when women refuse to submit to family violence, they seek not only to correct an individual wrong, but cumulatively to challenge the political boundaries of power and domination in the state apparatus, in the community and family.

There are now a number of organisations that act on behalf of the powerless in mediating family or land disputes. This has helped to catalyse some corrective response from the community. Individual and group grievances are symptoms of a wider social and political disorder, and to this extent class action taken up by legal aid organisations can become part of the struggle for a just society.

Public interest litigation is now accepted by the Supreme Court as a legitimate mode of legal intervention to correct social and political wrongs on behalf of persons who are unable to approach the court directly due to poverty or other disadvantage. In several cases, the superior courts have been constitutional arbiters and prevented forced and unauthorised eviction of slum dwellers, or encroachment on rivers. They have, in selective cases, upheld the right to livelihood as forming an integral part of the right to life, but have yet to give a general direction to stop violations of these rights by the executive. As a result the right to housing for the poor remains largely on paper.

Conservative judgements have left unaltered the gendered equation of power. A writ challenging the discriminatory provisions in citizenship laws was dismissed by the Supreme Court, notwithstanding the constitutional provision that any legislation contrary to fundamental rights should be struck down by the courts. As a consequence while men can pass on their nationality to their spouse and children, women are prevented from doing so by two statutory laws. In another writ, the Appellate Division over ruled a High Court decision that had granted maintenance to a divorced woman for a period beyond three months on the grounds that she would otherwise become destitute. In doing so, the apex court followed hard bound tradition instead of adopting an interpretation more sensitive socio-economic situation of the disadvantaged. The claims of justice will be met if judicial decisions bend towards social and gender justice and not merely maintain a status quo that favours the privileged?

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The author is member, Ain o Salish Kendra (ASK).