Not too long ago, 11-year-old child domestic worker Sabina Akhter was found in the street of Dhaka with multiple injuries caused by torture. The images of her battered and bruised face horrified the entire nation.
Then there was the case of Mahfuja Akhter Happy, another 11-year-old domestic child worker, the torture victim at the household of a famous cricketer. Happy was also found battered and bruised in the streets of Dhaka.
In both cases, justice proved elusive.
Poor girls like Sabina and Happy underscore the power of money and connections in Bangladeshi society. Rich and powerful people, cutting deals with the system, have shown that despite economic advancements, Bangladesh still is a country of callous injustice and gross inequality, where the rich can get a better deal over the poor, and can even get away with crimes well documented and publicised.
They serve as dreadful reminder that far too often, Bangladesh’s commitment to the rule of law is nothing more than an empty promise.
After Happy’s verdict, the media had reported, quoting the prosecutor of the tribunal, that the couple who perpetrated the crime was being released as the prosecution failed to prove them guilty.
Considering the bitter reality of the financial circumstances of these domestic workers, it is understandable that money sometimes seems more important to them than justice, and it is indeed an advantage for wealthy criminals to cut behind-the-door deal, and eventually escape justice.
It is understandable that the prosecutors sometimes may have trouble establishing a case beyond reasonable doubt which is required for criminal conviction.
But what about the many other cases where the battered and bruised bodies are there for all to see? What about the cases where there can be no doubt that the domestic workers were horribly abused?
It is widely rumoured within legal circles that many prosecutors who are appointed by the state seek such appointments because their skills are so poor, it’s the only way they can make a living. The best skill they are rumoured to have is cutting leniency deals outside the court room and off the record, even sometimes willing to sell an innocent person down the river.
A miscarriage of justice is not just about innocent people being found guilty. It is also about guilty people being found innocent
This is one of the main reasons for the miscarriage of justice in Bangladesh, and our government and lawmakers have somehow have learned to turn a blind eye about it, pretending, that as the underprivileged like Happy and Sabina were assisted by counsel, their obligations have been fulfilled.
This is but a delusion, as it has long been recognised in the legal profession that the right to counsel is the right to effective assistance of counsel.
None would know these ground realities better than judges such as Tanjina Ismail. The question is, what should a judge do, knowing that he or she has an overarching duty to conduct a fair trial, and to prevent a miscarriage of justice? Of course, it is not a step too far for a judge to intervene where the interests of justice requires it?
It is common knowledge for the judges of the modern judiciary, that poor performance of prosecutors and defence lawyers often leads to miscarriage of justice, and this is why a more interventionist approach has become common practice among the judges of modern judiciaries.
Recently in Australia, a trial judge called the lawyer, Benjamin Linder “incredibly stupid,” meaning that his client could not get a fair trial.
In 1993, a British Royal Commission on criminal justice suggested judges take a more interventionist approach when they see lawyers performing poorly in court.
Edmund Burke once said: “It is the duty of the judge to receive every offer of evidence, apparently material, suggested to him, though the parties themselves through negligence, ignorance, or corrupt collusion, should not bring it forward. A judge is not placed in that high situation merely as a passive instrument of parties. He has a duty to his own, independent of them, and that duty is to investigate the truth.”
As long as judges and prosecutors fail to take a firm stand, violence against domestic workers, especially children, will keep happening -- those with money know that they can pay their way out of any wrong-doing, no matter how terrible the crime.
A miscarriage of justice is not just about innocent people being found guilty. It is also about guilty people being found innocent.
Nur E Emroz Alam Tonoy is a blogger