Law Alter Views
Introduction of ADR in criminal cases
(This is the second part of the two part story. First part was published on 02-03-13)
CONSIDERING the context of ADR practices in Bangladesh elaborated so far, two issues worth to be highlighted in this regard. Firstly, whether we need any separate law to incorporate ADR in criminal cases and secondly, whether we are prepared enough to introduce such new laws, even if it has some necessity in out current context. To highlight the first point, at present compounding of minor criminal offences is permitted under the Code of Criminal Procedure 1898 (CrPC). Compounding of offences means to settle offences mutually by the alleged victim and the accused (along with their friends and relatives) before entering into the formal court procedure.
Section 345 of CrPC provides a list of offences those are punishable under the Penal Code but are also compoundable by the parties. Two different types of compounding are suggested in CrPC under two different lists. The first one suggests offences like uttering words with deliberate intent to wound the religious feelings of any person, causing hurt on provocation, wrongful retainment or confinement, and forced labour etc. as compoundable with the intent of the aggrieved person. Most of the offences included in the fist list are minor offences punishable with maximum one year imprisonment and/or fine. The second set of compoundable offences includes more grievous offences like rioting with deadly weapon, voluntarily causing grievous hurt, act endangering the personal safety of others, and assault or criminal force to women with intent to outrage her modesty. Punishment for these offences varies from two to seven years along with fine. These offences are also compoundable by the aggrieved person but only with the permission of a court. Therefore, the clause to take permission from court acts as a 'safety clause' against any possibility of forced compounding.
Nevertheless, promotion of compounding in criminal cases may lead to decriminalization of crimes. Decriminalization means crimes will not appear in our criminal justice system but still persist in our society with all its evils. Further, it will open up the opportunity to settle criminal cases through village shalish. However, if we let criminal cases to be settled through village shalish which is already inundated with partisan decisions and local politics, there is a little hope that quick disposal of criminal cases through compounding can ensure minimal justice to the poor and disadvantaged groups of the society. Though people may come to formal courts even after attending village shalish, social pressure followed by unscrupulous shalish decisions may aggravate the vulnerability of aggrieved persons and restrain them to come to formal courts even when shalish decisions are not fair to them. Therefore, compounding of criminal offences without an involvement of any judicial body may decriminalize crime and violence in our society. Furthermore, if we look at the current practice of court connected mediation in different civil disputes mentioned above, all are done with consents taken from respective courts.
More importantly, it is pertinent to mention that under the current settings, many of these compoundable criminal offences are dealt with village courts and municipal dispute settlement boards. These quasi-formal institutions are composed of local government bodies like ward commissioners, union parishad chairmen, and union parishad members. Each of the parties can choose two representatives in a five member panel; parties can also challenge the impartiality of the chairman of such quasi-formal institutions, and appeal to an Assistant Judge with appropriate jurisdiction, in case they are not satisfied with the decisions of village courts or dispute settlement boards. Therefore, to reduce criminal case load on formal courts, we may encourage these quasi-formal courts, rather than compounding by parties out of court. It is not a good idea to encourage compounding on criminal cases without the involvement of any formal court or quasi-formal court.
Besides compounding, another type of ADR mechanism suggested for criminal cases is plea bargaining. This is a widely practiced mechanism to settle criminal disputes in many developed countries like USA, UK and Australia. It is a process of negotiation where an offender admits his/her offence and negotiates for lower criminal charges. In a plea bargain, the accused agrees to plead guilty in exchange for a reduction in the number or severity of charges, or in exchange of a promise by the prosecution not to seek the maximum penalty allowed by law. Plea bargaining can be applied in all different forms of crimes punishable under the penal code. The benefit of plea bargaining is that prosecution does not need to spend much time and money to prove the guilt. Wrong doers also get partial relief from his/her punishment. Therefore, in small claim-criminal cases, it provides easy and quick remedy to the aggrieved person.
Plea bargaining usually occurs prior to trial but, in some jurisdictions, may occur any time before a verdict is rendered. To get benefited through plea bargaining, a defendant may file an application in the court, mentioning his/her guilt in a case and his/her intention to participate in a plea bargaining. After receiving such application, a court may take confession of the applicant in camera to determine whether the applicant has voluntarily made such application or not. Once assured about voluntary application, a court may direct the prosecution to conduct a plea bargaining for the disposition of the case. The process may slightly vary in different jurisdictions. Though the system seems to be time and cost saving in nature, sceptics of plea bargaining sometimes argue that the criminal justice system may became too soft on criminals by allowing for lighter sentencing in exchange for a guilty plea. Therefore, a skilled and transparent prosecution is a pre-condition for this process. However, are we not yet confident enough on the transparency of our prosecution or government employed lawyers who are supposed to negotiate with alleged miscreants.
Moreover, as torture in remand and police custody is still an ongoing phenomenon in Bangladesh, we have to think about the possibility of guilty plea by a convict under force or fear. Even if an intention to plead guilty may be expressed in camera, after such confession a convict may have to return to police custody and remain there until the case is settled. Therefore, we may not eliminate the possibility that in some cases innocent convicts may be forced to plead guilty. A major disadvantage for innocent convicts may be that once they sign a plea agreement and agree to plead guilty they will have no opportunity to file an appeal at a later date. Furthermore, in many cases poor, non-represented convicts do not receive responsible services from government appointed lawyers. As mentioned in a report of Legal and Judicial Capacity Building Project (LJCBP) in Bangladesh, it has been expressed by many respondents that often the lawyer is found to be absent on the date of hearing…Many of the prisoners stated that they never met the lawyers assigned to them even when legal aid had been provided for about a year. Therefore, virtually there will be no one responsible to protect their rights. This is why we need to take a second thought about all these issues.
We have to make sure that the opportunity of ADR in providing quick access to justice may not be used as a vehicle of power in the society. As observed by the post-modern Philosopher Michael Foucault, construction of truth (right or wrong) is not the 'ensemble of truths which are to be discovered and accepted' but rather 'the ensemble of rules according to which the true and the false are separated'. The dominant group in a society tries to normalise knowledge (about right or wrong) that can preserve and strengthen its power in the society. As people in power create social practices on their behalf, the voices of underprivileged people are always marginalised. Law can be used as a tool to make such changes in knowledge and consequent change in the power structure of a society. Law can be used to make such changes in both positive and negative ways. For example, introduction of new law on domestic violence has created an opportunity that proper implementation of this law will make perpetrator husbands more conscious about its possible legal repercussion and so, the extent of domestic violence will reduce in consequence. On the other hand, any loophole in the implementation of law may change the power structure in the society and make oppressed group even more vulnerable. For example, imagine what will happen if compounding allows perpetrator husbands to negotiate with their battered wives and settle the issue of domestic violence by themselves. Without the involvement of any unbiased third party to monitor and control the process, Will victims of violence be able to 'freely' negotiate with their perpetrators for a fair outcome?
Hence, if we intend to introduce ADR in criminal cases apart from current structure, we have to think about all these issues beforehand. It is better to use our existing structure first, before venturing into new/amended law or institution. While we do not have sufficient institutional framework for civil ADR (e.g. proper skills of mediators as to on art/theory of mediation, lack of rules and practice standards for mediation etc.) we may not venture new-liberal form of criminal ADR at this stage, as it is comparatively more sensitive in nature. What we need to do before introducing ADR in criminal cases is to ensure the independence of our judiciary and transparency of our prosecution. The quality and responsibility of legal counselling should be improved so that unrepresented convicts in criminal cases can access quality justice under government legal aid schemes. An immature and whimsical introduction of ADR in criminal cases without satisfying such preconditions may increase the apparent success of judiciary in Bangladesh by reducing case backlog and increasing quick disposal. However, such apparent success may come at the expense of decriminalization of violence and reduced quality of our criminal justice system. Lastly, this article is approached not to devalue the importance of compounding, plea bargaining or other means of ADR used to resolve criminal cases in many other jurisdictions around the globe, but to discourage their practice under the present context of Bangladesh, before ensuring the true independence of our judiciary and transparency in our prosecution. As an intermediate stage, we may strengthen our quasi-formal institutions to reduce case burden on formal courts. Ended.
The writer is Assistant Professor of Law, University of Dhaka.
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