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Colonial legacies of the criminal justice system

  • Published at 12:05 am June 16th, 2019
Gavel and Hammer
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Our legal system is still mired in a sea of outdated, colonial-era trappings

Bangladesh bears the legacy of a system of administration of justice from the British colonial rulers who gradually replaced the Mughal system of administration of justice which was mostly based on Islamic principles. 

Colonial legacies including Penal Code 1860, Police Act 1861, Evidence Act 1872, and Code of Criminal Procedure 1898, Jail Code are still in force in Bangladesh with only peripheral amendments. The ethos of constitutional law, the precedents of the Supreme Court, international treaty obligation, and enactment of special laws also bear an impact on the administration of criminal justice in Bangladesh. 

Although the enactment of colonial legislation has been considered a major achievement in terms of aligning the then prevalent criminal legislation with common law principles, it has now become necessary to make major changes and additions in the criminal justice system.

It is often said that the contemporary law of Bangladesh is still largely colonial in nature and in spirit. According to Akbar Ali Khan, owing to the introduction of the lawyer-centric adversarial system, legal reforms introduced by the British in this area turned out to be “isomorphic mimicry” which apparently looked liked western counterpart, but in reality was a system of exploitation for the poor, marginal, dissidents, and disadvantaged groups. 

The acutely adversarial procedure, with the passive role of judges, advocacy of lawyers, authoritarian mode of law enforcement agencies, and the imposition of excessive imprisonment was introduced by the British rulers. Shahdeen Malik rightly observed that the rationale for punishment was clearly recognized to be deterrence and a new law-making process of the British colonial rulers was mostly irrational, random, and erratic.

Though, in the course of its journey, Bangladesh is heading towards some economic acceleration, it has still become hostage to many governance issues relating to yawning economic disparity and effectiveness of state institutions. 

All these issues have been allegedly accentuated by the mode and approach of the justice sector officials. In fact, the overall scenario of administration of criminal justice may mostly be depicted as coercive, dilatory, time-consuming, and adversarial, with acute arrear of cases at different tiers of courts. 

However, the deterioration in terms of quality of justice is arguably much starker than the mounting backlog of cases. Though, over the years, some indifferent and half-hearted endeavours have been made to remove the procedural trappings and ensure effective justice, the crisis in the system of justice is infinitely complicated. 

It is often alleged that lawlessness in the forms of impunity and abuses of the coercive authority of the state has not only been widespread but also systematic within state-centric formal justice arrangements. More so, many crimes also remain unreported to the machinery of law.

Most of the criminal law, procedure, institutions, and principles that evolved during the British period (1757-1947) still govern the functioning of the criminal justice system. Alongside the steady growth of a series of special laws in the 1970s and afterwards, some palliative reforms have also been initiated with a view to easing the strain in criminal procedure. 

However, the proper application of criminal law may be questioned in terms of welfare and effectiveness. Perhaps disenfranchised sections, including women and the poor, bear the burn of abuse of the legal process.

At times the pro-active role of the judiciary and private legal aid organizations in protecting the rights of the women and poor victims is commendable.

Though scholars including Romila Thapar, Shashi Tharoor, Shahdeen Malik are highly critical of the whimsical imposition of colonial law over the natives, I would add that the British colonial rulers can be fairly credited for developing a systematic and standard criminal justice system in this region. 

In essence, the modern court system, the penal code, the respect for jurisprudence, and the value system of justice -- even if not applied fairly to natives during colonial era -- are all worthy legacies. However, in the process, our colonial rulers had controlled us with an acutely adversarial legal system that is still encumbered with never-ending procedural formalities. 

For instance, the draconian concept of sedition was enacted as an offence in 1870 to suppress any criticism of British policies. In fact, the “race-conscious justice system” was installed by a foreign race and imposed upon a conquered people who had never been consulted in its creation. Though colonial authority exercised their power that criminalized some malpractices including sati, infanticide, child marriage, etc, skin-sensitive justice and governance generated landlessness, pauperism, prostitution, and decline in moral values in otherwise peaceful rural life.

Today, there is no denying that the imperial raison d’etre and modus operandi of colonial law can in no way be squarely applicable for an independent and democratic state that follows a catalogue of fundamental human rights. 

The concern for the victims of crimes, reforms in the investigations, cyber-crimes, and fair sentencing policy also dominate the dialogue on reforms within the criminal justice system. 

Urgency for exploration of modern technology in the administration of justice, such as the e-judiciary, has also come to the fore. Most importantly, apart from drastic legal reforms, we need to devise some pragmatic tools and tech-savvy mechanisms to contain “litigation explosion,” and increase the quality of justice. 

Hussain MF Bari is a Judicial Member, 2nd Court of Settlement.