“It is important for a country and its people to enjoy fair and equable justice”-Explain

Introduction

From pick pocketing to major offenses, criminal proceedings are the elementary structure of any court trial. This standardized series of events helps ensure fairness and efficiency for all involved. Opening with booking and ending at sentencing, this procedure is a foundation of the legal system.

However, in Bangladesh this scenario is different. Political leaders who are in power they took the decision for every proceeding. Moreover, in some cases political leader creates conflicts between them regarding power and implementation of power.

However, let us look at the history of Bangladesh criminal law. The present legal and judicial system of Bangladesh owes its origin mainly to two hundred years British rule in the Indian Sub-Continent although some elements of it are remnants of Pre-British period tracing back to Hindu and Muslim administration. The legal system of the present day emanates from a mixed system, which has structure, legal principles and concepts modeled on both Indo-Mughal and English law. The People’s Republic of Bangladesh (Bangladesh) has bound itself to upholding human rights law by committing to a number of international human rights treaties[1]. Bangladesh therefore has the obligation to take legislative measures in accordance with the treaties that it has ratified, as well as upholding their implementation on every level. Interestingly there is a rule of law which gives government a superior power. This is the government of Bangladesh continued to use the Special Power Act of 1974 and section 54 of the criminal code, which allow for arbitrary arrest and preventive detention, to harass political opponents and other citizens by detaining them without formal charges.

Steps of criminal proceeding[2]:

When a crime is committed, it is reported, an investigation conducted and an arrest made. There are more steps in preceding criminal:

Booking: An administrative procedure, which records the respondent’s name, the crime charged, and other relevant information about the respondent (telephone number and address, photograph, fingerprints, etc.)

Arraignment: When the respondent appears in court and enters a plea (guilty or not guilty). The defendant is presented with a written accusation dealing the facts of the crime and his/her involvement in the crime. The written accusation may be presented by a grand jury, a prosecutor or a police officer. If the defendant enters a not guilty plea, a date for trial is set.

Bail or Detention: Bail is  to set defender kept in jail until the trial . It could range from being free by giving sort of application bay the lawyer. When a higher amount of bail is set, a bail bondsman is often called to provide the bail payment in exchange for a fee and a lien against property (as collateral) of the defendant. If bail is posted, the defendant is released but must show up at the next hearing (or bail will be forfeited).

Preliminary Hearing:  A hearing in which a judge determines whether the defendant should be held for trial. Preliminary the action has the burden of providing sufficient evidence to the judge that a crime has occurred and that the defendant committed the crime.

Trial:  Open statements, examination of witnesses and presentation of evidence, closing statements, charging the jury (giving the jury its instructions), verdict rendered by the jury after due deliberation, and entering of the verdict (either guilty, guilty of a lesser included or related offense, or not guilty). After a verdict is issued, the defendant may try a post trial motion, such as a motion for a new trial.

 Sentencing : As soon as a defendant has been found guilty by trial , a hearing is set to determine the imposition of the sentence. Sentencing reports, which set forth justifying and compounding factors are often submitted to the judge and then the judge pronounces judgment at a sentencing hearing (in some jurisdictions juries or sentencing councils render the sentence).

 Fine, Probation, Jail :  The defendant may be ordered to pay a fine, be released but subject to specific terms of probation, or sent directly to jail. If a person violates the terms of his/her probation, she/he may have his/her probation revoked, and be sent to jail.

 Appeal:  later conviction of a crime.  The defendant has appellate proceeding which may be available to determine whether all substantive and procedural law issues were properly conducted at the trial.

 Above mentioned Steps are internationally followed procedure in a case investigation. In bangladesh to investigate a case they also follow this steps. But in some sort of action they do corrupt because of political leaders and powerful persons. When it comes to friends and family with a political leader the corrupt themselves in investigation process, this is common .

 Investigation Process in Bangladesh

Core ideology among Bangladesh police is to investigate by the above-mentioned way. This is clear that they are following the international standard. However, in some cases relate to government and political leaders behave differently (or corrupted way) regarding their cases. When a party is in power, they took control over opposition cases. Misuse of this political power is used in almost every sector in Bangladesh. Ministers and parliament members are related in several criminal cases. They take control in allegation of the criminal investigation procedure. So police and other crime investigate people go under their authority. Nevertheless, there is no denying that in Bangladesh, there are still a number of constraints against holding of a free and fair election, and establishing transparency in the entire election process. May be this is the basic of their abusive power creation.

Example of Political Power use:

News from National Newspaper “The Daily Star” Nov 2

Mayor of Narsingdi municipality Lokman Hossain succumbed to his wounds at DMCH around 10:30pm last night, about three hours after an unidentified assailant shot him at the town Awami League office on Sadar Road. A masked miscreant opened fire on Lokman in a room of the AL office around 7:30pm while he was talking to party men, Sudipto Saha, a contractor of the municipality, told reporters at the Dhaka Medical College Hospital. Sudipto was in the room when the attack was carried out. As the others in the room dispersed, the assailant got closer to the mayor and fired again, he added. The attacker managed to flee the scene soon after the incident.

After the incident happened

Four hours into the shooting, police arrested Khokon (BNP Leader od narshingdi) , also a secretary of BNP’s education affairs, from his Rampura residence in the capital. Initially, he was shown arrested as a suspect under section 54. Police later submitted a report to the court mentioning their suspicion of his involvement in the murder.

In November 4:

“Salauddin Ahmed Bachchu, the younger brother of Posts and Telecommunications Minister Rajiuddin Ahmed Raju, and 13 others were implicated last night in the murder of Narsingdi mayor Lokman Hossain, after a long drama over filing a case.”

Recently this case is going on, and DB police took charge of the case handling. But Present government blaming the opposition party leaders in this investigation. This investigation process is running very slowly as because only the political leaders are involved in this case.

Hundreds of more cases are hanging in the court only because of the power implementation by the corrupt MP’s and Ministers. Because of this activities, integrity and the investigation process is obstructing. Police and the CID’s could not investigate proper way file case in their methods.

 How to Ensure Fair Investigation[3] :

• The political parties play a vital role in ensuring free and fair investigation. Taking advantage of power in different investigation cases and over police authority should be stop primarily[4].

• Principles of justice and fairness are also central to procedural, retributive, and restorative justice. Such principles are supposed to confirm processes that create unbiased, consistent, and reliable decisions. At this point, the focus is on carrying out set rules in a fair manner so that a just outcome might be extended. Fair procedures are central to the legitimacy of decisions reached and individuals’ acceptance of those verdicts.

• To make sure fair procedures, both in the context of legal proceedings as well as in negotiation and mediation, the third party carrying out those procedures must be impartial. This means they must make an honest, unbiased decision based on appropriate information. For example, judges should be impartial, and facilitators should not exhibit any prejudice that gives one party unfair advantages. The rules themselves should also be impartial so that they do not favor some people over others from the outset[5]

• An unbiased, universally applied procedure, whether it serves to distribute wealth or deliver decisions, can ensure impartiality as well as consistency. The principle of consistency proposes that “the distinction of some versus others should reflect genuine aspects of personal identity rather than extraneous features of the differentiating mechanism itself.” In other words, the institutional mechanism in question should treat like cases alike and ensure a level playing field for all parties.[6]

• Related to issues of respect and dignity is the principle of trust. One measure of fairness is whether society members believe that authorities are concerned with their wellbeing and needs. People’s judgments of procedural fairness result from perceptions that they have been treated “honestly, openly, and with consideration.”[7] If they believe that the authority considered their viewpoints and tried to treat them fairly, they are more likely to engage in the broader social system.

It may seem to be a simple matter of common sense that justice is central to any well-functioning society. However, the question of what justice is, exactly, and how it is achieved are matters that are more difficult. The principles of justice and fairness point to ideas of fair treatment and “fair play” that should govern all modes of exchange and interaction in a society. They serve as guidelines for carrying out justice.

Not surprisingly, each of the principles of justice and fairness can be applied in a variety of contexts. For example, the principle of dessert applies not only in the distribution of wealth, but also in the distribution of punishments. Likewise, the principles of impartiality and consistency might apply to both an economic system and a decision-making body. In addition, the principle of need plays a central role in both distributive and restorative justice.

 Ensuring Integrity in Bangladesh concept:

 Fighting corruption in Bangladesh:

            ROLE OF CITIZENS

• Corruption cannot be addressed overnight without comprehensive efforts and fullest commitment of those in positions of power.

• The Government has to take the lead, and the NIS (National Integrity system) must be allowed to function effectively.

• In the absence of the above and/or when they are rendered ineffective-citizens’ awareness and demand become crucial for catalyzing change.

• Lead public awareness & participation campaign tobsay NO to corruption and demand change.

• Inform & advise the public about rules/entitlements.

• Take specific initiatives for service sector transparency – Citizens Report Cards – monitoring& campaigning for “Islands of Integrity”.

• Involve public officials & representatives in motivational and specific action-oriented activities.

• Engage other stakeholders, especially the youth through information, education, and motivation, cultural and other programs.

 Equable Justice:

            The right to equality before the law and equal treatment by the law, or, in other words, the principle of non-discrimination, conditions the interpretation and application not only of human rights law but also of international humanitarian law. [8]According to article 26 of the International Covenant on Civil and Political Rights, for instance, “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law”.

[9]The principle of equality before the courts means in the first place that, regardless of one’s gender, race, origin or financial status, for instance, either every person appearing before a court has the right not to be discriminated against in the course of the proceedings or in the way, the law is applied to the person concerned. Further, whether individuals are suspected of a minor offence or a serious crime, the rights have to be equally secured to everyone. Secondly, the principle of equality means that all persons must have equal access to the courts.

Human Rights during Criminal Investigations

            In the course of a criminal investigation, the persons affected thereby continue to enjoy their fundamental rights and freedoms, although with some limitations inherent in the withdrawal of liberty for those affected by the measure. While some rights, such as the right to freedom from torture, are, as will be seen below, valid for everyone at all times, the right to respect for one’s private and family life may, though, increasingly be jeopardized, for instance through sophisticated means of wiretapping. Some examples from the international jurisprudence will illustrate this problem. It should again be recalled that this section would not provide an thorough account of the rights guaranteed during criminal investigations, but will focus only on some of the basic rights, which must be protected at this important stage.

 Recommendation

 Anti – Corruption: The Commission has to form some indicators of the vision so that every member of the society can easily recognize and they should be answer all the aspects regarding their activity and they need to be monitor always about their activities also.

Mobile Court: [10]In order to sustain the law and order of the country, mobile court plays a vital role. Executive controls it though it is the work of judiciary. According to the Criminal Procedure, Claluse-190 magistrate cannot direct the mobile court. Therefore, it is a confusing matter that who will control mobile court.

 Political Will: Any kind of meaningful changed, political will is mandatory because our democratic polity deals by various political parties. In addition, Government formed by citizen’s mandate with their representatives. So, if the political parties (both government and opposition) be honest and keep their vows right, they can change the society with their good deeds.

Public Consciousness: Lack of consciousness peoples have no strong movement for this reasonable and remindful wants. People need to awake and be conscious what is happening around them.

Strong Civil Society: Strong society can create a good value to anti-corruption of the political leader and powerful parties behind the corrupted investigations.

Strong Democratic Culture: Democracy always leads a country of its very best to well-being.

If we as a country can develop a stronger democratic union, together we can prevent all kind of corruption and we can raise our voice.

Stronger Media: Media coverage for this case is very important. Media also need to be transparent. Sometimes media gives us wrong information, which can change a case activity. Transparent and truth news are important.

Conclusion

Finally, it is important for a country and its people to enjoy fair and equable justice. Powerful leaders behind the scene should not control over this fair justice. Police force and other security and law adjunct force should be more transparent related to this case and activities. Mostly those case which are related to political party also. We must remember an investigation is a systematic collection of facts for the purpose of describing what occurred and explaining why it occurred. There is a right way to conduct a fair fact-finding investigation, just as there is a right way to take a blood pressure reading. A witness might tell the investigator that he saw Fred hit the customer. That is a piece of information, whether it is true or false.[11]

 Bibliography:

 References Used:

Retrieved:

1. http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan020065.pdf
2.  http://findarticles.com/p/articles/mi_qa3923/is_200411/ai_n9469138/
3. Communication No. 694/1996, Waldman v. Canada (Views adopted on 3 November 1999), in UN doc. GAOR, A/55/40 (vol. II), pp. 97-98, para. 10.6.
4. The Right to a Fair Trial: Part I – From Investigation to Trial
5. Folger, Sheppard, and Buttram, 272. , Tyler and Belliveau, 297.
6. Nicholas Rescher, Distributive Justice. (Washington, D.C.: University Press of America, Inc., 1982), 5
7. Tom R. Tyler and Maura A. Belliveau, “Tradeoffs in Justice Principles: Definitions of Fairness,” inConflict, Cooperation, and Justice, ed. Barbara B. Bunker and Jeffrey Z. Rubin, (San Francisco: Jossey-Bass Inc. Publishers, 1995), 291.

1. Folger, Sheppard, and Buttram, 272.
2. http://criminal-law.freeadvice.com/criminal-law/criminal-law/criminal_proceeding.htm
3. www.bangladesh.gov.bd/index.php?option=com_content&task=view&id=58&Itemid=1