Star
Law Report
Penology
: Principles and Practices
Abdul
Khaleque
In
the state of nature, women's insecurity of body and mind
led to the perception of marriage and family which developed
into subsequent political institutions called tribal republic,
state and empire which gave laws of governance of their
realm. The ancient king was despotic; he detained, and
even killed, people who held ideas not acceptable to him.
Political
accountability, arrest on credible suspicion and knowledge
and detention on precise accusation, punishment by impartial
court under due process of law, subsequently became the
ideals of governance, instead of tyranny, arbitrariness
and subverted judicial and administrative process.
We
may refer to penological principles and practices: In
ancient Rome, the creditor maintained army to capture
defaulting debtor, mutilated his body into parts and threw
these away for birds and beasts. When Rome reached the
pinnacle of constitutional liberty, corruption reached
its high water-mark. Romans started to believe that the
goddess of liberty was perhaps corrupt. Roman governor
aspiring after consulship through election, fleeced his
province, kept money with Magistrates to buy votes.
By
1530, Britain recognised capital punishment for treason,
killing of husband by wife, murder, larceny, robbery,
burglary, rape and arson. Theft of a hanker-chief worth
a shilling from shop was enlisted as capital offence.
We may cite one British case: Pick-pockets were detected
while plying their trade in a crowd assembled to see one
of them (pick-pockets) being executed for picking pockets.
In
Saudi Arabia, for adultery the offender is stoned to death;
the hand of a thief is cut off. In Iran, drug-traffickers
are hanged.
England
abolished death sentence in 1965, when it was discovered
twenty years after hanging a person for murder that there
was proven evidence that the victim was not guilty of
the offence. After the killing of Lord Mountbatten, a
bid for restoration of death sentence in select cases
was overwhelmingly rejected.
Modern
criminologists opine: punishment which inflicts injury
is a sadistic drill based on body-conscious fear; prisoners
are posited with human rights; criminology is a reformation
of the inner man and his spirit as a corrective for the
outer man's criminal aberrations; mental transformation
may be brought about by transcendental meditation and
high consciousness as a penal agenda.
Justice
V R Krishna Ayer of Indian Supreme Court criticised the
doctrine of deterrence as "a sublimated version of
quasi-mafia culture, operated ceremonially with mace and
robes and the rituals of trials, and hallowed by scriptures
revealed by Moses, Manu, Hammurabi, Draco, Coke, Hegel
and Stephen".
In
ancient India, corruption and theft were punished with
fine, confiscation of property and banishment. Brahmins
enjoyed prerogatives for offences including murder committed
against Sudras. Indian offenders had to pass through dangerous
tests to prove their innocence: walking through fire;
chewing of rice without oozing of blood; touching of red-hot
piece of iron without having injury; swallowing poison
without vomiting. In water test, the guilty sank. Besides
burning of widows, mutilation, hanging, outcasting etc.
were also prevalent.
The
laws given by the Holy Prophet of Islam (570-632) characterised
by devotion to Allah, respect for human rights, honesty
and piety without mental reservation have been a blend
of religious, moral, social, economic and spiritual values,
seen against the background of human urges and needs.
Among
the Sultans of Delhi, Bulban introduced ruthless punishment
against robbery and other crimes. Feroze Tuglak suppressed
the practice of mutilation and torture, and punished bribe-givers
and takers. Under the Mughals, punishment was drastic
enough to inspire awe and sustain public confidence. Indirect
evidence was accepted in case of rape and adultery.
In
the modern world, penal agenda covers a wide range of
punitive measures: attendance centre, borstal, binding
over, care order, cautioning, community home, deferred
sentence, detention centre, extended sentence, solitary
confinement, fine, hospital order, diversion, parole,
prison probation, imprisonment, life sentence, youth custody,
hard labour, penal servitude, preventive detention, segregated
unit, whipping, retribution and death sentence. Of all
punishments, death sentence is the highest order of incapacitation.
Imprisonment keeps offender out of circulation. Criminals
likely to remain undaunted by lenient penalties are subjected
to deterrent punishment, including death sentence in some
countries. Since people fear death more than anything
else, death penalty is assumed to be most deterrent, the
assumption being that man deliberately chooses a course
of action in light of foreseeable consequences. Socialist
countries claim great reduction in murderous crimes because
of death sentence. Despotic countries hang political dissenters
and others through a legal facade of trial by subservient
courts which cannot vouchsafe due process of law.
Modern
sociologists and psychologists see human behaviour as
largely unplanned and habitual rather than calculated
and voluntary. The deterrent value of death penalty is
not seen by them as a scientific proposition but rather
as a social conviction to reinforce feelings of vengeance
in a particular value system.
In
the United States a lot of states has gone abolitionist,
death penalty has had no special deterrent value and it
was imposed disproportionately on the poor. The United
Nations study has concluded that there is no correlation
between the existence of capital punishment and the rate
of capital offence. Empirical studies, in our context
reveal that death sentence or shooting to kill has been
sometime successful in quelling extreme anarchy.
In
spite of the vision of humanitarian penology and collective
transcendental meditation, we feel that the impulse for
criminal activities in permissive societies, and criminal
delinquency in uneducated or ill-educated and in crimo-genic
poverty-stricken countries will continue to justify reasonably
deterrent penology. Death sentence in the context of armed
and brutal terroristic modus operandi in most crimes in
Bangladesh and more specifically in the context of the
waves of inhuman crimes like rape, gang rape, rape of
children, raping to death, trafficking in women and children,
kidnapping for ransom, murder, bomb-acid-and-grenade assaults,
custodial torture and killing, illegal export and import,
money laundering, arson, white-collar corruption, persecution
of women and murder of pressmen is almost a universal
demand. At the same time, there is strong and universal
articulation for professional, efficient, honest and impartial
investigation and trial.
We
hope, Bangladesh will endeavour a deep probe into the
causes of the waves of crimes and their substantial reduction
by national socio-economic and political penal agenda
based on national plank of political consensus, will and
determination.
Crimes
spring from tension, mental overheat, lust, greed, vengeance,
enmity, disregard for law and lack of social, family and
political peace and inadequacy of control over juvenile
delinquency which arises mostly out of broken homes, lack
of parental affection and care and control, bad company,
deprivations, poverty, lack of education, discipline and
moral values and from contagious crimo-genic environment
etc.
We
must not forget that delinquent juveniles mature up like
other juveniles into adults and take over the role of
their senior delinquents.
We
notice people to take law into their own hands and to
lynch accused and suspects in public. It is imperative
on law enforcers, civil societies and political parties
to tell people that criminals are constitutionally posited
in a democracy with human rights and as such cannot be
dealt with in any manner other than in the due process
of law and that as humans, criminals have also right of
private defence.
In
Bangladesh, operation of criminal laws follows procedural
rituals of investigation or inquiry and trial. The rituals
reveal constraints. Witnesses, by and large, tend to exaggerate
or understate what they see, hear and know, and to tell
lies at will or under pressure or in fear of reprisals,
or in lure of gains etc.
Police
and lawyer can hardly afford punitive bigotry to respond
to prison trauma, flogging and firing squad on the one
hand, and gross attitudes when our social regulations
break-down, and individuals and groups are left to themselves
to be engaged in unregulated activities like gruesome
offences including acid-bomb-grenade assaults, on the
other.
The
operational rituals of criminal procedure in practice
brings prosecutor and defence lawyer into a situation
to shatter each other's case by exercise of legal skill
in the battle of evidence. Unless the prosecutor and the
defence lawyer are holistic, they do not hesitate to lynch
the truth. Out of the debris of this battle, the court
discovers the truth, keeping in view the presumption that
the accused is innocent, and then makes up his mind to
declare the verdict within the range of the punishment
prescribed by law for the particular offence. Midway through
this process of trial, the question of credibility of
police version and the veracity of confession (if any)
apart, the judge is supposed to be innately guided by
his/her own belief as to genuineness of custodial security
of accused and any extra-judicial interference in the
entire procedural ritual. Arrest, trial, conviction and
penalty are traditional instruments of deterrence which
prospective law-breakers risk, apart from the preventive
anti-crime measures prescribed by police regulations,
and the security bonds provided by the Criminal Procedure
Code with or without surety for keeping peace under sections
107-110, and also the general exceptions: act done by
a person bound by law or by mistake of fact believing
himself bound by law; act of a judge when acting judicially;
act done pursuant to judgement or order of court; accident
in doing a lawful act; act of causing harm without criminal
intention but to prevent other harm; act of a child under
seven, and above seven but under twelve of immature understanding;
act of person of unsound mind; act of person incapable
of judgement by reason of intoxication against his will;
act not intended and not known to be likely to cause death
or grievous hurt, done by consent; act done in good faith
for benefit of a person without consent, act to which
a person is compelled by threats. Besides, the Penal Code
provides right of private defence up to death to citizens
and others living in Bangladesh.
The
criminal laws of Bangladesh are largely committed to the
doctrine of deterrence through denial of liberty, through
torture of the flesh, and through financial imposition
implied in "fine and confiscation of property"
provided by the Penal Code. Article 50 of the Constitution,
however, provides that the President shall have power
to grant pardons, reprieves and respites and to remit,
suspend or commute any sentence passed by any court, tribunal
or other authority. The President can constitutionally
exercise this power on the advice of the Prime Minister.
Bangladesh
may resort to preventive detention of all categories of
citizens. Preventive detention was introduced in Britain
in 1908 and repealed in 1967. Detention was intended to
apply to mature hardened recidivists, guilts of serious
offences and the aim was to protect society by segregating
such persons in prison for long period of time. In USA,
the Internal Security Act of 1950 is a permanent preventive
detention legislation, but with protective clauses relating
to war emergency or foreign aggression, warrant issued
by the Attorney General, hearing and right of appeal and
indemnation. In contrast, the preventive detention law
in Bangladesh may be enforced by an administrative order
in peace time on mere conjectural grounds. The law does
not give any scope of defence to the detainee by lawyer
before the Advisory Board of hearing. Such detention is
incompatible with the spirit of the legal system of a
democracy. Details of detention may be seen in the Constitution.
Years
ago, women in Germany came out on the street to protest
against intolerable public sex assaults. Their fury went
to the extent of attacking the male folk found on the
street in the periphery of their protest routes. The fury,
indeed, provides the symbolic guidelines against intolerable
criminal assaults on individuals, communities and nations.
The
author is (retd) IG Police.
