How can we fix our broken legal system?
A crucial jurisprudential Latin phrase posits that the burden of proof is on the one who declares, not on the one who denies -- this idea forms the basis of the concept of presumption of innocence. In essence, this is a legal principle which states that an individual is considered innocent until proven guilty -- presumption of innocence is institutionalized under Article 11 of the Universal Declaration of Human Rights, which in its totality acts as a global normative architecture enshrining the rights of individuals around the world.
Following its endorsement of the International Covenant on Civil and Political Rights (1966) in 2000, Bangladesh is legally bound to uphold Article 14 (Section 2) of this agreement -- in simpler words, unless and until proven otherwise, an individual has the fundamental right to be presumed innocent by the state and society. Nevertheless, whether through political rhetoric or via citizen perception, we tend to, sometimes hypocritically, practice the idea of guilty until proven innocent -- which in turn paves the way for the judicial system to be used as a tool for the ruling elites.
This has undoubtedly contributed to Bangladesh being ranked 102nd out of 113 countries, as per the World Justice Project Rule of Law Index -- a statistic indicating the lack of systematic accountability in the state structure. The picture is even grimmer when analyzing certain features of our prison system -- 78.2% of prisoners in Bangladesh are pre-trial detainees or remand prisoners, with over 3.3 million cases still pending as per information provided by the law minister in 2018.
Unfortunately, this stems from a hard line approach by governments of past and present, to tackle what they have perceived as national security concerns -- transitioning the country towards having a flawed and controversial legal system.
Take the case of the wrongfully imprisoned Jaha Alam -- the Anti-Corruption Commission made a mockery of the judicial system by prosecuting this jute mill worker, accusing him of no less than 33 charges related to loan fraud. In 2018, Bangladesh learned about how two farmers were acquitted in court after suffering 27 years in jail -- they were accused of smuggling cattle. Cases such as these indicate a concerning trend in the way citizens are accused, arrested, and incarcerated, often proven innocent after a substantial period of time.
If the state itself is not interested and invested in proving beyond reasonable doubt that a certain individual accused of a crime is guilty, then innocent citizens like Jaha Alam have to suffer in prison for absolutely no reason.
Politically sensitive cases naturally tend to be different, and are often perceived along partisan lines. Take the case of Begum Khaleda Zia -- she has been indicted, tried, jailed, and convicted on several of the cases she has been accused in. Nevertheless, the former prime minister’s supporters have questioned the credibility of the convictions -- phrases such as an influenced judiciary or politically motivated trials have been the talk of the town for followers of the BNP chairperson.
In fairness, Begum Zia and her lawyers did not address the accusations made against her in court in a swift or efficient manner. However, the case of Jaha Alam and the position of Bangladesh in the rule of law index do leave questions as to whether our judiciary and legal system act in a neutral, efficient, and equitable manner.
Another interesting case which caught the nation’s eye was the Holey Artisan Attack in 2016 -- two individuals who were unequivocally acquitted by the court, faced the wrath of citizens, particularly social media users, who came to their own conclusions about the role of these two citizens during the attacks. Granted, the attack hit the heart of the Bangladeshi capital and indeed made us wary, and even emotional, about the importance of getting to the bottom -- yet we forgot to look at the facts and subsequently passed our own judgments.
The facts were that these two citizens, one a professor of a reputed university in Dhaka and another a student of the University of Toronto, were in fact victims of the attack who were there at the wrong place at the wrong time. This was verified and ascertained during a stringent investigation by law enforcement agencies, testimonies by the survivors of this attack, and information collected by state agencies.
The state of our legal system and the perception of a person being considered guilty the moment they are accused, is a result of political actors failing to empower the judiciary whilst simultaneously using legal measures as a tool to curb dissent and opposition. It is because of this that citizens in our country have a habit of considering themselves judge, jury, and executioner -- which in itself is concerning and against the spirit of the law.
Questions regarding Begum Khaleda Zia’s trial proceedings should and would not have arisen if a negative precedent had not been set regarding how the legal system functions in Bangladesh -- and it falls on bodies such as the Anti-Corruption Commission to re-establish trust within our system, practice and preach the idea of presumption of innocence, and enshrine the values of the rule of law in Bangladesh.
As a citizen of Bangladesh, I understand how important perception is in public life -- I hope this article is not seen as an attack on how we as citizens perceive others, but a reminder about why we need to be more wary about passing judgment about our fellow citizens. At the end of the day, a wrongful accusation and how we construe such an accusation can destroy the reputation of the citizen in question, even if such a citizen gets acquitted in court -- which in the long run can be more harmful than a wrongful conviction.
It is without a doubt that we want criminals to be prosecuted, tried, and punished for the crimes they commit -- but in order for such to happen effectively, the state needs to re-establish faith in the judicial system and concurrently, citizens have to be more active in fact-checking what is presented to them and not fall prey to the perils of fake news.
Mir Aftabuddin Ahmed is a graduate in Economics and International Relations from the University of Toronto.