Justice is not just law and punishment08 March 2021 Editorial Desk
As reported in the national media the Appellate Division of the Supreme Court (SC) on Tuesday observed that courts to apply the provisions of the "Probation of Offenders Ordinance, 1960," in appropriate cases.
An Appellate Division virtual bench of Justice Muhammad Imman Ali and Justice Abu Bakar Siddiquee came up with the observation in the judgement of Criminal Petition for Leave to Appeal number 1271/2017.
Written by Justice Muhammad Imman Ali, the judgement urged that the trial court concerned convicted the accused under section 325 and sentenced him to one-year imprisonment. The appeal court also upheld such judgments.
We are noticing with sorrow that the judges of the trial and appeal courts have forgotten completely that there is a law in our country titled “The Probation of Offenders Ordinance, 1960.” Section five of that act could have been applied in this case, the judgement said.
The incident took place regarding a petty matter between the two neighbours.
It was proper to keep the accused under probation, rather than sentencing him to one-year imprisonment, opined their Lordships. The provisions of "The Probation of Offenders Ordinance, 1960 are applicable by trial, appeal and High Court," they added.
The Probation of Offenders Ordinance, 1960 provide for the release on probation offenders in certain cases.
What their Lordships were pointing at was the need of human considerations while doing justice. The vacuum in political leadership with no effective opposition and the lawyers divided as party activists have further enfeebled the judiciary for human considerations to take into account. Even in a bailable offence there is no difficulty in refusing bail. One has to come to the highest court for relief.
To be honest, abuse of bail granting discretion and allowing easy remand into police custody has made our justice system a dread. Because punishment of an innocent person in most cases begin with the filing of a police case. Deaths in police custody merely for expressing dissent is not so rare. This terrible human crisis has drawn international condemnation.
Their Lordships of the Appellate Division of Supreme Court expressed sorrow that in the justice system the scope for avoiding hardship of imprisonment is not resorted to by ordering probation permitted in law. Their Lordships urged, in effect, that the human aspect of justice to be upheld however little scope there is.
A person is innocent before found guilty has been replaced by the premise that one is guilty unless found innocent after trial. For the reason that we did nothing to avail the opportunity created with the birth of Bangladesh to build democratic institutions, our justice system could not develop and grow as it should have been by emphasising the aspects of social conscience and humanity as inseparable part of justice.
Soon after the emergence of Bangladesh we found ourselves in the grip of revolutionary politics under which as was to be expected the executive power prevailed as supreme. The judiciary came completely under the executive with no job security for the judges. Thus the judiciary became a branch of the executive. This development was shocking but it happened notwithstanding our people’s crave for the rule of law and independent judiciary.
Thereafter democratisation process was initiated under the army rule. When the civilian rule returned in 1991 after the fall of General Ershad the authoritarian instincts continued for lack of democratic leadership and yielding to sycophancy both from bureaucracy and businessmen politicians. The successive governments were not ready to welcome independence of the judiciary as protector of human rights and humanity.
In an independent judicial system it is a contestant struggle how to make the judiciary to serve the cause of humanity and social conscience as perceived by the judges.
In our poverty infested country not granting bail before trial means economic disaster for many families by the trial begins. Not the accused alone is punished his family and other dependents are punished before one is found guilty deserving punishment. It is not easy for poor people to come to the High Court Division for bail.
Justice is not just law and punishment. The greater objective of the justice system is to build a better and a more humane society.