Access to Justice is coupled with multiple hindrances in Bangladesh’s Justice Mechanism. The filter of politicisation, corruption, and ineptness of professionals at all times supersedes the juridical norms in the country’s Judicial System. The COVID-19 pandemic situation has subtly exposed the problems, as reflections came from participants of a Webinar hosted by the Asian Human Rights Commission during the week.
“The Judiciary, as a whole, is not adequately aware of its lawful authority in holding the bureaucracy and policing system accountable,” said a Lawyer. In a nine-year career in judicial service he had to choose voluntary retirement from the Judiciary. The Institution had failed to utilise him in administering justice. “Public Law Schools do not teach laws related to the operations of law-enforcement agencies. When law graduates are appointed as Judicial Officers, the Judicial Administration Training Institute (JATI) inadequately trains them and produces Judges with a lacuna of knowledge. Furthermore, the process seriously struggles to raise the moral standards of Judicial Officers and their subordinate staffs,” the lawyer said. The discussion referred to laws, rules, regulations, and official records for further clarity of the participants.
The Webinar enlightened the participants about Rule 476 of the Criminal Rules and Orders-2009laid down by the High Court Division of the Supreme Court of Bangladesh. The Rule empowers the Sessions Judges of Bangladesh to inspect the Courts of both Judicial and Executive Magistrates, functioning within their jurisdictions, at least once a year, and send a report to the High Court Division.” Such oversight by the highest Judicial Officer of every jurisdiction might have played constructive roles in holding the executive officers’ actions accountable. However, the Sessions Judges did not have the required knowledge about their legal authority and were lacking the intent to serve Society.
The trend of arbitrary detention of Government critics, as well as various professionals, under draconian laws like the Digital Security Act-2018 and the Special Powers Act-1974, was raised in the discussion. With great concern, the pattern of prolonged arbitrary detention of numerous suspects, critics of the regime, and opposition political activists was discussed in the Webinar. The legal experts attending the virtual meeting discussed the materials most comprehensively. The Police are obliged to complete the investigation of criminal cases within 15 days, as prescribed in Regulation 261 of Police Regulation 1943. The Regulation reads:
“261 (a) The investigating Officer shall, whenever possible, pursue the investigating to its completion without a break in continuity.
(b) The investigating Officer may, for the purpose of following up any clue or conducting an enquiry which may be done more easily and expeditiously in person than by correspondence, proceed beyond the limits of his intention, but he shall report his intention to the Inspector before proceeding.
(c) Circle Inspectors shall see that investigating Officers complete their investigations as required by section 173, Code of Criminal Procedure, and that the provisions of clause (b) are not abused. If the directions in clause (a) are strictly observed, it should rarely be necessary to prolong the investigation of even the most difficult case beyond 15days.
(d) The practice of delaying the submission of the final report, after the completion of the local enquiry on the spot shall be discouraged. It is the duty of Superintendents and even more of Inspectors to insist that investigations, in a case in which the accused are known, are brought promptly to a conclusion.
(e) When a Magistrate forwards a complaint to the Officer-in-charge of a Police-Station for investigation, it shall, whenever possible, be completed within the time fixed by the Magistrate for that purpose. If this is not possible, the investigating Officer shall, in any event report by the prescribed date the progress made and the date by which he expects to complete the investigation.
The same procedure shall be followed when an enquiry is made into a complaint referred to the Police under section 155 (1) or section 202, Code of Criminal Procedure.”
The country’s jurisprudence has also made detention beyond 15 days illegal in a judgement passed in 2016 by the Supreme Court of Bangladesh in Civil Appeal No. 53 of 2004 known as BLAST vs. Bangladesh (Shamim Reza Rubel) case.
The Law-Enforcement agencies of Bangladesh use the term ‘shown arrest’ in the events of prolonging detention of persons in one or more different criminal cases. This happens once the detainees are granted bail or the Police loosen up the legal grounds for keeping the detainees in a particular case. In order to practice such extended detention the Police habitually use Section 351 of the Code of Criminal Procedure-1898. In fact, the term ‘shown arrest’ does not exist in any Law in effect in Bangladesh. Thus, the pattern of curtailing the right to liberty of detainees in multiple criminal cases is absolutely illegal. Such abuse of Police power, without lawful authority, continues as an established method. This is due to the lack of knowledge and moral standards of the Judicial Officers who do not have to face any stringent system of accountability. The pattern of such abuse of power, without any oversight from the Sessions Judges and the Supreme Court, clearly indicates the following. The Judiciary, as an Institution, is ignorant about its own legal authority in administering justice.
The impact of Institutional ignorance, regarding the harmless-ness of Laws and the failure to exercise them, is irreparable. Every victim, including their relatives, abused by Police power, experience the ugly face, the dark side of the Criminal Justice System. A suspect System, which puts up a wall against powerless people, strengthens the characteristics of a ‘Police State’ and promotes ‘coercion’ in all spheres of life. As a result, Society as a whole, not only distrusts the Judiciary but also considers the Justice Mechanism as an ENEMY to peace-loving citizens and a WEAPON of the perpetrators. The People’s universal participation in socio-economic, political, and cultural affairs of the State is barred by the system itself. It deprives the nation from achieving its goal: to achieve sustainable development objectively, access to justice is an unavoidable key.