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05th-Apr-2016

Humanising criminal justice system is more urgent

By MAINUL HOSEIN

It will inspire many to see the Chief Justice Mr Surendra Kumar Sinha eager to have a healthy national debate over functioning of the judiciary. He has been suggesting reforms of the old and outdated laws to deal with the changed situation.What is disturbing is his comments that for flaws in law the case of Tonu, the girl raped and murdered in or near Comilla Cantonment, will face difficulties. Yet, our fear is that wrong persons may be punished, the reason being, we are living in a situation where 'others people's lives' are not important. Truth can be suppressed, manipulated and even some guilty ones can get away untouched by law. Where police cannot be trusted about fair investigation no law can cure it. Our police are too much under politicisation and cannot be trusted fully.  The way the crisis of crime and punishment is unravelling itself, humanity of justice looks forbidding enough.  Mr Justice Sinha regretted that the law makers lack knowledge of law. He should know that the law makers are chosen for loyalty and not for their ability as law makers. This is how politics has gone into the wrong hands. Many responsible officers of the government are also not serious to act in accordance with the provisions of law. The judges and the lawyers experience such omissions everyday.   The issues raised by the Chief Justice have, as expected, provoked debate and discussions among the lawyers and the elite. Every serious minded man and woman will agree that the legal system is being neglected as because promoting the rule of law in the country      is not a seriously understood consideration in our politics. The present government is going in the direction of socialism which does not believe in independent judiciary for the need of impartial justice.The fact is that the lower judiciary is under various pressures and needs protection of the Supreme Court. The politicians tend to show the arrogance of remaining above the law. The newly rich ones with political connections have the arrogance of ill-gotten money power. The consequences are abuse of law and prevalence of corruption at every level of the governance. The general picture is that the justice system has become too expensive and harsh for the poor and helpless ones. The police power enjoys overwhelming sway over an alleged offender to decide his fate. Investigation is made easy for the police. They can get anyone arrested and thereafter take him into their exclusive custody by way of remand and feel free to gather information applying any tactics they prefer to use. It is not considered necessary that an accused must have his lawyer present when he is asked questions to answer. In many cases, harrowing stories of torture, mental and otherwise, remain untold. We believe, this method of routinely sending an accused to police remand is simply criminalising the police. The courts also, for reasons not easily comprehensible, concedes to police request to take anybody facing a court case into their lonely custody. It is most difficult for an accused to see that he has the protection of law against police excesses.To make an accused so helplessly submit to the police custody for interrogation is unthinkable in a fair justice system. Whatever is written in the Constitution for protection of an accused's right not to be forced to give evidence against himself is flouted everyday in almost every criminal case.To get bail is another area where our criminal justice system, as practised, is mindlessly flawed. An accused is refused bail as if to be free on bail is wrong. He must be punished first before he is found innocent by a court. To make one suffer in prison simply on police report is like trial by the police and not by a court of law. False and inimical cases are encouraged because it is so easy for the police to keep one locked in and shut up. Because our justice system is not working the way the justice system should for helping the innocent ones, crimes are soaring and court cases are also piling up. The failure to prevent crimes should be worrying for the justice system. The number of cases cannot be seen as a success to punish the real criminals.    The Chief Justice does not deny the existence of corrupt practices in the judiciary. He explained that the courts are not an island but a part of the society. But the judiciary is to be a fortress for doing justice honestly.There is a widespread and well-organised corruption network in respect of remand and bail matters. Nobody who is keen to reform the justice system can ignore and stay helpless doing nothing about inhumanity and corruption built over the years in the criminal justice system. It is the Supreme Court where the people come as the last hope for justice. The judges cannot dictate who the law makers will be or modernise the laws but the judges can certainly assure the nation of doing the right thing themselves in the field of judiciary. Let bad laws not mean denial of justice, the dictates of humanity prevail as justice.It is only right for the Chief Justice to feel that he has a special duty and obligation to do what he can do himself along with other judges for humanising the criminal justice system. Everybody needs to feel secure that the justice system is above politics and political interference.It is the fair criminal justice system that makes all of us truly civilised. Let the politicians remain indifferent, if they so choose, but the judges and the lawyers must do their best to make the criminal justice system work humanely. What is to follow is judicial activism. Justice is nothing but an expression of humanity. The laws do not do justice, the judges do. Their Lordships of the Supreme Court have the constitutional authority to declare any law unconstitutional if it is violative to one's fundamental rights.