Monday, September 21, 2020 | ePaper

New Dimension In The Judiciary

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Taimur Alam Khandaker :
Introduction:  
Bangladesh is a land blessed with bounties of nature. Located at the eastern part of South Asian Sub-continent, the country has a total area of 1.47.570 Square Kilometers with a population of near about 180 million and 75% of them live in Rural Areas. Agriculture is the economic mainstay and 60% of the people depend on it for their live hood. The alluvial plains of Bangladesh are extremely fertile and good for Agriculture. That this country was ruled by several Rulers like Moghal, British, Pakistan etc, as such the people of the land had to experience with the several type of Administration of Justice and Judicial process under statute, convention and religious rules and regulation.  
That as the land of Bangladesh is thickly populated area, and as such there is a demand of using of land for cultivation, for Industrialization and for Housing, that is why most of the offences are arises out land dispute and ended into murder, forgery, physical injury, arsoning etc.
As per law of the land most of the dispute is arises out of Civil Nature and when the Crimes had committed then the Criminal Law is come into force.
On the other a handsome portion of Criminal Case has arises out of Family dispute and sexual offences. In spite of that there are Money Laundering, Sex Trafficking, Smuggling, Forgery cases which are huge in number. At present Cyber Crime, Organized Crime, White collar Crime and Terrorism are also in there. A proton of young class, specially known as street boy, are involved with Drug, Street Crime, Sex, heinous offense. Poverty is one of the main causes for involvement of lower class people in crime under the Control of Mastann and Mafia as stated by Sally Aktinson published in the Asian Journal of Criminology.                 
That as per report dated 21/01/2019 published in the Daily Inquilab, a number of 35,07,898 cases are pending in the Courts as on 31st December 2019 out of them 13,97,354 were the Civil Suit and 19,67,165 cases were Criminal in Nature and others type of cases 88,834. On the other hand the Government out of political revenge lodged false FIR against the political opponent and as such the number of criminal cases is increasing day by day which are out control of the Judiciary to conclude the trial with in the specific time as prescribed by the relevant law. Due to long pendency of trial, corruption and undue influence of the ruling party, the litigant people have lost their confidence upon the Judiciary. And as such the people are looking for restitution of Justice as well as alternative process of Justice.
That it appears from the report dated 17/11/2019 published in the Daily Dinkal, the restitution of Justice System by way of compensation is going to be popular in the District Hobigonj under the monitoring of Police Superintendent of Habigonj. For the last one year a number of Hundred Cases were disposed off under the system of restitution by way of compensation.
Under reference of Ministry of Local Government it is reported in the Daily Inquilab that under finance of UNDP and European Union Government has starts functions of village court in the 27 districts which was established in the year 2006 under Village Court Ordinance. In the said report it is reported that the litigant public are getting benefit under the process of Restitution through the village court (Ref: Report dated 25/11/2019, The Dainik Inquilab).         
Background :
There are 2 (Two) themes are established regarding the definition of Victim (Ancient and Modern). In Ancient time Victim was defined as a person or animal who were put in death to the Supernatural being or deity. But as per modern sense the Victim is defined a person who experiences injury, death, assault, disease, natural disaster etc. Victimization means an asymmetrical relationship of abusive, destructive, parasitical, unfair and many cases in violation of law. As per modern theory there are 2 (Two) types of Victim like as primary and secondary. The primary victims experience Criminal Act and usually physical injury while the indirect or secondary victim experience emotional and financial harms.
That in ancient time the repayment were established by socially it self and victim had played an vital role for Investigation and resolving process. But after adoption of Constitution and bills of right in America the Crime, Criminal and the Victim causes were gone under the system of Criminal Judicial process.
That in ancient time there were Judicial system under (1) Code of Ur Nammer (4500 ago), (2) Code of Hammurabli, (3) Mosaic law, (4) Roman law etc. In Biblical times Mosaic law demanded that an assailant repay the person he injured for any losses due to recuperation from a serious wound and required that a captured thief give back five oxen for every one stolen. But the Code of Hammurabli granted a victim as such as 30 times the value of any goods stolen or damaged. Under Roman law, a thief had to pay the victim double the value of what he stole if he was caught in the act, if he escaped and was caught later, he owed the victim three times the value of what he took, and if he used force to commit the theft, the robber had to repay the injured party four times as such as he stole.
Rediscovery of victim's right:
The Father of the Modern Criminology Cesare Beccaria (1738-1994) opined otherwise regarding taxation on the offender. His opinion was that "Essay on excessive (that is not justified) application of the criminal law. Argued for the protection of accused (and guilty) people who were victims of arbitrary decisions and excessive application (1) Victims of the Criminal Justice system & (2) Victims of the legal order."
History of the victimology :
First of all through the article written by Hans Von on interaction between victims and criminals matter of victimology came in to focus. Then in the year 1947 a French writer namely Benjamin Mendelssohn coined on the same issue, then in the year 1957 Morgan Fry in Great Britain Proposed legislation on compensation of victim, In the year 1958 Marvin Wolfgang point out the Circumstances Surrounding the death to murder victim. In the year 1968 Stephen Schafer writes the first text book about the victim. Later on several states including U.N.O. had took initiative to establish the right of the victim and several law was adopted by the Parliament/Congress of the respective state for the protection and compensation of the victim.
Statutory Provision in Bangladesh for Compensation:
(A) That there is no statutory Provision for Compensation or Restitution for the Victim of Criminal Cases. But by way of adding Section 35A in Code of Criminal Procedure' 1898 that upon conviction, sentences such accused to any term of imprisonment, simple or rigorous, it shall deduct from the sentence of imprisonment, the total period the accused may have been in custody in the meantime, in connection with that offence.
(B) The Honorable High Court Division by a Judgment gave an verdict upon the state to compensate the victim of Liberation Period specially Birangana by way of designate the name of education and social institution after the name of the Birangana and Freedom Fighter.
(C) For the last few years, High Court has taken a view to compensate the victim of Road Accident, victim for negligence of Government Official (like as Tareque Masud, Rubel Case) and Limon Case who lost his legal for bullet injury caused by RAB.
(D) Recently the victims are coming before the High Court for claiming compensations and they are getting result by the Judgment of the Honorable High Court.                                      
Goals of Criminal Justice system:      
There are three goals of Modern Criminal Justice System such as (1) Punishment, (2) Rehabilitation (3) Restitution.
Opportunities of Restitution:
As per opinion given by Andrew Karmen (2004) in his studies expressed that restitution is an extremely flexible sanction that is not being used to its full potential. It could arise at every juncture, from the immediate aftermath of the crime up until the final moments of parole supervision following a period of imprisonment. As soon as a suspect is apprehended, an informal restitution arrangement can settle the matter. For example, a storekeeper might order a shoplifter to put the stolen item back on the shelf and never return to the premises. Parents might offer to pay for their sons spray painting on a neighbours fence. In most states, however, serious offenses cannot be resolved informally. It is a felony for an injured party to demand or accept any payment as hush money to cover up a major violation of the law, in return for not pressing charges, of as a motive for discontinuing cooperation with the authorities in an investigation or prosecution. A criminal act is an offense against the state in addition to a particular person and cannot be settled. After a suspect is arrested, a restitution agreement can be worked out as an alternative to prosecution (diversion). If a defendant is indicted, the District Attorney's Office can make restitution a condition for dismissing formal criminal charges. Once prosecution is initiated, restitution can be part of a plea bargain struck by the defense lawyer and the district attorney, where the accused concedes guilt in return for lesser penalties. Restitution is particularly appropriate as a condition of probation or of a suspended sentence. If incarcerated, an inmate can begin to repay the victim from wages earned from labour in prison or from a real job while on work release or residing at a halfway house. After serving time, restitution can be included as a condition of parole. Restitution contracts can be administered and supervised by various parties concerned about the crime problem community groups, private and nonprofit charitable and religious organizations, juvenile courts, adult criminal courts, probation departments, corrections departments and parole boards (Reference obtain from "An introduction to victimology written by Andrew Karman)."
Object of Restitution:
It involves the transfer of services or money from the offender to the victim for damages inflicted by the offender.  
Fundamental Defiance in between Compensation and Restitution:
Restitution is court order payment from a convicted offender. Victim compensation is a state government program that pays victims of violent crime even when there is no arrest or prosecution (cover medical expenses, most cover counseling, and very few cover any property loss). A victim cannot collect both compensation and restitution for the same losses.   
Recommendations:
(A) A board or authority may be formed under the caption "Compensation Board" or "Restitution Board" in each Administrative District headed by a competent Judicial Officer with the following member to fix up the loss, damage, injury, loss of prestige, name fame, emotional injury, victim of False Case and compel the offender to pay the same in favour of the victim.
The Proposed Board may be consists of:
(1) Competent Judicial Officer - Chairman (Full time).
 (2) A Representative from Human Right organization - Member.
 (3)   One Senior Teacher of the respective District- Member.
(4)  One representative from Local Bar Association- Member.     
 (5) Civil Sergeant- Member.
 (6)  District Child Welfare Officer- Member.
(7) 2 representatives from the respective offender and victim.
(B) The terms of business of the Board will ascertain the damage caused by the offender to the victim and ensure the realization of compensation through the due process of law at the cost of the state.
(C)  The proposed Board shall have to take care and protection of the victim from the future attack by the offender.
(D That there should be an Appellate Board consist of Judicial officer which will be equivalent to Division Bench of the High Court status in rank and file.  

(Taimur Alam Khandaker, columnist & advocate, (Appellate Division); e-mail: taimuralamkhandaker@gmail.com)

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