Progressive laws need of the day

The legal system of Bangladesh belongs to common law family, which is one of the major legal systems in the world. Common law has developed in England through thousand years' trials and errors in the judgments of English courts based on the common customs of England. After taking a legal form, common law was supplemented by equity when the common law courts failed to provide relief to justice-seekers. Great Britain has developed the common law with its distinctive attributes, having rules, legal principles and procedure, giving rise to the development of a dominating legal family many countries belong to. British rulers either exported their legal system to their colonies or established a new legal system for their colonies based on common law rules, legal principles and procedure. Bangladesh, India, Pakistan, Canada, Australia are examples of the countries whose legal systems have been fashioned based on the British common law.

Indian subcontinent had been ruled by the British colonial masters – first by the East India Company, then by the Royal Queen – for more than 200 years. Although the first Indian Law Commission was formed in 1834, the British colonial rulers initiated to enact major laws after controlling the Great Sepoy Mutiny. India's first law commission was established in 1834 via the Charter Act of 1833 under the chairmanship of Lord Macaulay. This law commission drafted and recommended the codification of some major laws – the Penal Code 1860 and the Code of Criminal Procedure 1898.

The Indian subcontinent was divided into two countries – India and Pakistan – in 1947, and Bangladesh became an independent country in 1971. But almost all the major laws such as the Penal Code 1860, the Evidence Act 1872, the Code of Criminal Procedure 1898, and the Code of Civil Procedure 1908, were enacted by the British colonial rulers. Not only the colonial masters enacted major laws, but they also established a structured legal system with civil courts and criminal courts. Despite being established as an independent country in 1971, this democratic country is still regulated by the colonial laws.

These laws sometimes create a contradiction with the constitution of Bangladesh and are also archaic in some cases to ensure speedy disposal of suits and ensure justice.

In this article, I shall discuss and analyse some specific laws and selective cases to substantiate my proposition as it is not possible to make a comprehensive discussion in a short write-up. I shall point out some provisions of the Penal Code, the Evidence Act, and the Code of Criminal Procedure to show their archaic states and how provisions of these British-enacted laws are creating a contradiction with the constitution of Bangladesh with respect to the judgments of some leading cases.

The Evidence Act: Character evidence in rape prosecutions

In a consultation meeting, speakers had unanimously demanded that the discriminatory provision of section 155 of the Evidence Act of 1872 be repealed, and also urged that the government take necessary initiatives in this regard. The Bangladesh Legal Aid and Services Trust in association with the Shokhi project organised the meeting on the use of character evidence in rape prosecutions in Bangladesh at the Daily Star Centre on August 20, 2017.

Section 155 (4) provides that "…when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was generally immoral." Here prosecutrix is usually considered to be the female victim of a crime. On her behalf, the State prosecutes a suspect or accused.

Justice Nizamul Haque, former justice at the Appellate Division of the Supreme Court of Bangladesh, said, "We all agreed on the fact that Section 155(4) should be repealed. Judges in courts can play a vital role in protecting a rape survivor from being asked humiliating questions during rape trials."

While discussing the way forward, Nurunnahar Osmani, member of the National Human Rights Commission, opined, "The issue of consent should be the main concern in rape trials. Adducing character evidence in courts in such trials is completely irrelevant."

Lutfa Begum, former District Judge at the Nari O Shishu Nirjaton Domon Tribunal, said, "Section 155(4) of Evidence Act is one of the main reasons why perpetrators of rape can evade justice. Questioning about the past sexual history of the rape survivor cannot be relevant in determining whether the offence of rape has been committed."

Fatama Sultana Suvra, Assistant Professor at the Department of Anthropology, Jagannath University, commented, "Rape laws in Bangladesh discriminate against women, which permit questioning a woman about her character. It is a violation of her constitutional rights as our constitution treats men and women equally. Such laws are based on a colonial mind-set that a woman cannot exercise her sexuality unless she is immoral character."

How are the British laws creating contradiction with the Bangladesh constitution?

The Bangladesh Legal Aid and Services Trust (BLAST) versus Bangladesh and others, and Saifuzzaman versus Bangladesh and others are two landmark cases in the legal history of Bangladesh as in these cases, the Supreme Court of Bangladesh issued directives to be followed by police officials during arrest and detention.

In the BLAST case, the apex court had pointed out how some provisions of the Penal Code, 1860, the Code of Criminal Procedure, 1898, and the Police Act, 1861 are creating a contradiction with the provisions of the constitution of Bangladesh.

The BLAST, Ain-o-Salish Kendra, Sammilita Samajik Andolon and some reputed citizens of the country, namely, Dr Kamal Hossain and Barrister Amir-ul-Islam filed the writ petition.

The petitioners pointed to the exercise of powers under section 54 and remand under section 167 of the CrPC. They asked the government to ensure that police officers' powers of arrest and detention should be exercised within the limits established by the law, and when exercising these powers, the protections given to the citizens under Articles 27, 31, 32, 33 and 35 should be properly taken care of. 

A bench of the High Court Division, comprising Justice Md Hamidul Haque and Justice Salma Masud Chowdhury, considered the deliberations of the petitioners and respondents. The court in its verdict said, "As we have found that some of the existing provisions of section 54 and 167 of the Code are inconsistent with the fundamental rights of citizens, this court cannot only recommend amendment, it can even issue direction…" 

The High Court initially issued a Rule Nisi, and upon a full hearing delivered a judgment on 7 April 2003, observing that Sections 54 and 167 of the CrPC are not fully consistent with constitutionally guaranteed freedoms and safeguards.

The court laid down a comprehensive set of recommendations, regarding necessary amendments to both sections of the CrPC along with the Police Act, the Penal Code and the Evidence Act, it also issued a directive that these should be acted upon within six months. In 2016, the Appellate Division, the apex court of Bangladesh, upheld the verdict given by the High Court in the BLAST case, and rejected the appeal by the State, challenging the High Court verdict on section 54 and 167 of the CrPC over the arrest of an individual without warrant and interrogating a suspect in the custody. 

Penal Policy of Bangladesh and evaluating the Penal Code, 1860  

Bangladesh has not formulated a penal policy officially yet. But it has inherited the Penal Code from its British colonial masters. One can easily discover the motive and policy behind this penal law. The Indian Penal Code 1860 was the most important penal document of the British colonial government – which is read with the Criminal Procedure Code, 1898 – formed the backbone of the colonial criminal justice system. The history of draft and final enactment of the Indian Penal Code is important as one can clearly understand that the British colonial rulers made the criminal law to safeguard their empire. Also, it can help a person realise that we are using this colonial penal code to punish offenders as well as to control and prevent crime in Bangladesh where the democratic civilised world has shifted from penology to reformative correction. 

The draft of the Indian Penal Code was the handiwork of Lord Macaulay, JM Macleod, GW Anderson and F Millet. The contents of the report illustrate its common law paternity. Moreover, there were colonial and emerging imperial concerns behind making the draft of the Code. It is important to note that the Indian Law Commission which drafted the Penal Code was aware of the fact that the future of the empire depended on it. The Penal Code was the basic penal law of British India and it provided the governing ideology for crime, culpability and punishment.

One has to see the salient features of the Indian Law Commission report to get an idea about the nature of criminal justice reflected by the Penal Code. Firstly, it was laid down that people could be punished only for their intentional wrongs and it has been one of the cardinal principles of the common law criminal justice. Secondly, the Penal Code was founded on the notion that punishment must terrorise. This notion was clearly illustrated by the commission's reason for retaining the punishment for "transportation for life". The overall objective of the Penal Code, therefore, was to introduce and construct a regime which would "terrorise, embarrass and humiliate on the assumption that this alone would protect the empire, if not society".

Preservation of peace in Indian subcontinent was not the main objective of preparing the draft and subsequent enactment of the Penal Code; rather it was "equipping the imperial state with the power to crush rebellion, silence discontent, prohibit censor, forfeit unpalatable pamphlets and literature, and generally curb social and political protest."

When evaluating the draft of the Penal Code, prepared by the Indian Law Commission, Rajiv Dhavan, a senior advocate at the Supreme Court of India, said, "By contemporary standards, the proposed Penal Code was firm without being too controversial, stern but not exactly inhumane, racist but not without a universal declaration of equality, imbued with, but not carried away by, considering animadversions to native practice, and arrogant but not wholly careless. Yet, in time, broad concepts of crime and punishment were to suit the then needs of colonial governances."

About the Penal Code, which was enacted in 1860 and continues to be the main penal law of Bangladesh, Ratanlal and Dhirajlal said, "It must be said to the credit of Lord Macaulay and his colleagues that in spite of tremendous difficulties, they firmly laid the foundation of the Indian criminal law and did an excellent pioneering work. The Indian Penal Code has stood the test of more than a century and still largely meets the needs of present-day society. In days when the concept of individualisation of punishment was unconceived, it defined the offences and prescribed separate punishment for each. This is, however, not to say that the Indian Penal Code is a modern Code in every sense of the term. With the emphasis of penology, having shifted from punitive deterrence to reformation and correction, the Penal Code though considered as an advanced Code a century ago, now appears to be an archaic Code by the standards of modern social defence." 

The above discussion reveals that the colonial motive and imperial concerns were operative behind the draft and final enactment of the Penal Code 1860.

The Code has several unique features, namely, classifying and defining crimes with precision, and prescribing separate punishment for each offence. It has introduced the cardinal principle of the common law criminal justice that an individual can be punished for his/her intentional wrongs.

British rulers introduced terrific and brutal punishments such as death penalty, whipping, solitary confinement and transportation for life.

Although it was a modern Code in more than 150 years back, with the shift of penology's importance from punitive deterrence to reformation and correction worldwide, now the Penal Code appears to be "an archaic Code by the standards of modern social defence". So, it may be forcefully argued that the covert penal policy of Bangladesh, discoverable from section 53 of the Penal Code and various penal provisions of the special criminal laws, has combined the retributive, deterrent and preventive punishments.

The Code lags far behind as it has failed to incorporate the tools of corrective justice. In this context, it is argued that the penal policy and criminal justice system in Bangladesh are administered and guided by the nineteenth-century laws and philosophy. This is more clearly illustrated by the criminal law provisions of mandatory death penalty and whipping, although whipping is not awarded in practice.

The British established legal system in Bangladesh can hardly ensure justice due to two formidable difficulties – firstly, the huge cost of litigation which most of the people of Bangladesh cannot bear, and secondly, very delayed disposal of the suits. Moreover, some major laws have become archaic. My firm conviction is those colonial laws and colonial-master-established legal system are not suitable for a democratic country.

In my above discussion, I have shown how some British enacted laws have created a contradiction with the constitution of Bangladesh and how some law provisions have been hindering justice-dispensation in rape trials by making character evidence relevant and in other criminal trials when the accused are interrogated by the police officials under custody.

Sheikh Hafizur Rahman Karzon, Professor, Department of Law, University of Dhaka.