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24th-Apr-2016

Prosecution not being independent is fatal for criminal justice

By MAINUL HOSEIN

Our Constitution requires the prosecution to be independent like the judiciary as part of the judiciary. The process of justice has to be saved from political abuse of criminal proceedings. How bad the situation has become for the judiciary should be clear from the fact that criminal cases are freely used for political ends. The enforcement of law for initiating court cases has to be impartial and not amenable to manipulation from outside.The constitutional legitimacy of the independence of the judiciary is beyond question. The same cannot be claimed by the government. It is legitimate for the Supreme Court to insist on independent prosecution. Criminal cases are lodged by the state and conducted on behalf of the state, not the government. But in our case it is in every way a government matter.   Our non-government human rights organisations, including our own official Human Rights Commission do not concern themselves with the need of the rule of law or independence of the judiciary for securing human rights. They often talk about human rights violations after the event. But they do not care to make the constitutional system functional for safeguarding the human rights. Independence of the judiciary not considered an issue. They will not demand prosecution of criminal cases to be free from government's control. The result is: human rights are easily violated and our human rights bodies also raise protest regularly for the record. The victims suffer unheeded. The whole criminal prosecution system is controlled by the government. The police is government police. The lawyers are also government lawyers, changeable with the change of the government. The Anti-Corruption Commission has their own lawyers independent of the government control. But this same example is not followed for having an independent prosecution dealing with much larger number of criminal cases.   Constitutionally, the government itself being very much under the rule of law it cannot be in charge of the prosecuting process. This is the reason why the men in government are sure of being above the law as long as they remain in power. So loosing power is unthinkable. Under the rule of law this is not permissible that the government will exclusively decide who should be prosecuted and who should not be. They have to satisfy the independent prosecution. No system can work in part.The fundamental rights are most needed when one faces criminal proceedings. An accused can be taken into police custody for questioning. On insistence of the prosecution he can even be locked up without bail. Thus all his fundamental rights may prove to be of no help. All his family members may lose their bread earner, before one is found guilty of the offence alleged. Our justice system must not be part of the ruthless power struggle we have. The rights guaranteed under the Constitution are not to be interfered with by the government. In our present politics it has become easy to dictate cases politically. Politicians should deal with opposition politicians politically. Reliance on police power for facing political opponents is a reflection of weak and undemocratic political leadership.The authority of the government to apply administrative laws for administration is not denied. It is altogether a different cup of tea when law is applied for lodging a criminal case against one. The problem of our politics in the midst of leadership crisis is that our leaders do not understand the need of good governance. They understand their own need of remaining in power. All the institutions of good governance are degenerating for being neglected. Bad governance is bad for the government also. No badly managed government can rely on fear of police power too long. The breakdown of law and order is horror for everybody. The fatal defect of the criminal justice system is that criminal prosecution is in the hands of the government. So the fear is that the criminals can escape punishment because the prosecution is not independent. If a criminal can avoid arrest, no court can punish him.  It is a fatal weakness of our judiciary that the prosecution is fully under the grip of the government. When the judiciary enjoys the Constitution's full trust for ensuring justice under law, but in reality, justice is often hindered by absence of independent prosecution. The judiciary, as guardian of the Constitution, must tell what the government can and what cannot do for running a constitutional government.If the people are allowed to enjoy their fundamental rights and are thus saved from abuse of power, that itself will be a big hope for the people to look forward. As the Constitution mandates, let the independent prosecution handle the criminal cases on behalf of the state and not as desired by the government. The system building role is played by knowledgeable sections of the people everywhere.  To be hypocritical is not to be responsible.