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3 January, 2018 12:03:41 PM
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Does punishment deter crime?

Dr. AHM Mustain Billah
Does punishment deter crime?

One of the fundamental rights of a citizen is the protection of life and property of a country. This is to ensure the constitutional provision as laid down in Article 35, which is concerned with penal enactments or other laws. For the protection, personal safety or liberty of a citizen, a criminal’s right could be taken away for the interest of the society, and it set down the limits within which state control should be exercised.

As for classifications of punishment, they are either corporeal or non-corporeal. Corporeal punishments are actions that are inflicted on the body, such as incarceration, whipping, forced labor or death. Non-corporeal punishments take the form of fines, suspension or deprivation of office of civil rights (e.g., the right to vote), forfeitures and so on. There are different kinds of punishment prescribed by BPC, 1860. The Section 53 of the Bangladesh Penal Code, 1860 prescribes five kinds of punishments. These include; death penalty; life imprisonment; Imprisonment (Rigorous and Simple); forfeiture of property and fine.

Now the question lies what is legal punishment? Punishment is some pain or penalty warranted by law, inflicted on a person, for the commission of a crime or misdemeanor or for the omission of the performance of an act required by law, by the judgment and command of some lawful court.

The review of literature reveals that the British set up a first law commission in order to draft a law for British India and they made the recommendations of this law. The code was presented to the Governor of Bengal in 1837. This was based on the law of Victorian England, again the (Victorian) law derived elements from the Napoleonic Code and Louisiana Civil Code of 1825. That derived law was adopted on 6 October 1860 for British India finally for Bangladesh. The Penal Code 1860, deals with different kinds of offences and punishments. The offender will be awarded with punishment if he is proved guilty. There are not many provisions for corrective measures or reformations in the penal code of Bangladesh so far.

Against this backdrop, the focus is on Bangladesh perspective where over the last two decades tremendous economic growth has been achieved, human development indicator has improved, judiciary has been reformed i.e separated and expanded and logistics and other facilities for judicial department have been extended for punishing the criminals and improving social order, peace and security of the citizens.

H Fazlul Bari (2014) in his appraisal of sentencing in Bangladesh made accounts on reformative measures in Bangladesh. This article basically embarks on sentencing practice in criminal litigation of Bangladesh.

The Code of Criminal Procedure 1898 is the first legislative step to provide for probation scheme.  In 2003 section 35A of Code of Criminal Procedure was amended in order to deduct the custody period from total period of sentence. Probation of Offenders Ordinance 1960 made provisions for probation, admonition and discharge of the accused guilty of minor offences.

The Children Act 1974 made provisions for therapeutic approach as to how a juvenile delinquent will be treated in a sentencing court. In 1980s a plethora of special laws were made for vulnerable victim - protection procedure as well as recurrent harsh punishments in order to combat violence against women and children.

Considering the damage of the victims, The Code of Criminal Procedure 1898 empowers the courts for awarding compensation to recover the loss of victims of crimes. However, these discretionary powers of the sentencing are not widely exercised.

Domestic Violence Act 2010 provides for the punishment in the form of ‘community service order’ in case of repeated delinquency on the part of the offender. The sort of punishment is prevailing in the Canadian courts.

Newly enacted Children Act 2013 keeps provisions for the comprehensive reformational approach for betterment of the youthful offenders.  Overtime the judicial pronouncements endeavour to develop new mitigating and aggravating factors in awarding the punishment. The purpose and principles of criminal sentencing largely emanate from the case-laws as Bangladesh follows common laws in absence of separate sentencing statute.

The Constitution has the provision of vesting the judicial service and magistrates exercising judicial functions in the Supreme Court. In addition to the above safeguards the Constitution of 1972 provided in Article 22: 'The State shall ensure separation of the judiciary from the executive organs of the State.'

After a long debate regarding the separation of the judiciary from the executive, it was finally done consequent upon a judgment of the Appellate Division of the Supreme Court on 2 December 1999 in Masdar Hossain's Case (52 DLR, 2000). The judgment, in effect, declared that Bangladesh civil service (judicial) be considered as an entity separate from those of other services, and directed the government that magistrates exercising judicial function should be separated from the executive branch of the government.

In order to maintain the law and order of the country the RAB was created under The Armed Police Battalion (Amendment) Act, 2003 by amending the Armed Forces Battalion Ordinance 1979. Functions of RAB include: (a) internal security duties: (aa) intelligence in respect of crime and criminal activities; (b) recovery of unauthorised arms, ammunition, explosives and such other articles as the government may, from time to time, direct; (bb) investigation of any offence on the direction of the government; (c) apprehension of armed gangs of criminals; (d) assisting other law enforcing agencies including the police for maintaining law and order, and (e) such other duties as the government, from time to time, may assign. The Ordinance requires Rapid Action Battalions along with other Battalions of the Force to perform all the duties described, but no other battalions save the Rapid Action Battalions shall perform any duty mentioned in clauses (aa) and (bb). Rapid Action Battalions have exclusive jurisdiction in this regard.

The Bangladesh economy performed well in FY2015-16. The GDP growth picked up around half percentage point to 7.11 per cent (2016-17) from 6.55 per cent of previous fiscal year. This is the first time that, growth has exceeded 7 per cent mark after persistent growth of around 6 per cent.

Bangladesh’s HDI Position improved tremendously according to Human Development Report, 2015. UNDP it improved from 0.336 in 1980 to 0.570 in 2014. Life expectancy at birth has also increased substantially as at national level from 67.7 in 2010 to 70.9 years in 2015. For 2016 it is 72 years as available in the internet.

The fertility rate decreased sharply over the year from 6.91 in 1975 to 2.19 in 2017 with a rapid high growth of urban population from 10 per cent in 1975 to 35.7 per cent in 2017. The figure 1 clearly indicated that population of country increased with slow growth rate from 2.70 per cent in 1980 to 1.05 per cent in 2017, with sharp increase in the median age group from 17.6 years in 1975 to 26 years in 2017.

Let’s evaluate whether the punishment is enough to deter crime with respect to criminal cases in the courts over the time in Bangladesh. Now what is punishment? Flew (1954 in Bean 1981: 5) argues that punishment, in the sense of a sanction imposed for a criminal offense, consists of five elements:

It must be unpleasantness to the offender;

The act must be for an offense or omission in law;

The incumbent must be of an offender, actual or supposed;

It must be the work of any personal agencies; in other words, it must not be the natural consequence of an action;

It must be imposed by a competent authority like court or an institution against whose rules the offense has been committed.

But unfortunate part is that despite all development indicators and human development indicators increased incredibly, but crime position did not improve resulting that penalty or punishment hardly does deter crime at all.

Many of the conditions that are required for punishment to be effective do not exist in many justice systems of developing countries including Bangladesh. In developing countries like ours there is serious lack of appropriate guideline for punishing criminals in order to ensure that punishment should commensurate with gravity of offence, even though it’s difficult. Against all these adverse let’s begin with something. Continuous research, experiment and training can be carried out on emerging and challenging issues over time.

During undertaking research, the emerging issues should be taught in the class room of different academic environment as food for thought and get feedback from the grass root.  All sorts of media can play a nice role in creating awareness. In Canada for minor offences there are provisions of law for rending community services as a correcting measure. This kind of provisions of law can be replicated in our context as well. In Bangladesh community forestry, community fishery and community police already yield the best results in reducing the crime in those sectors. Alternative dispute resolutions (ADR) is one of the best solutions widely used in many developed countries including Canada where 90 per cent case is disposed of through ADR can be promoted and popularised here with no cost or least cost. Alternative dispute resolution can help the justice system in a country function more efficiently. It often saves costs and time and increases user satisfaction.

For cases that go back to court, however, the total cost and time may increase. Alternative dispute resolution can also have indirect benefits. It can increase the effectiveness of courts by reducing bottlenecks. And it can improve trust in the legal system, which may increase foreign investment. In the USA and Canada per case it saves US$ 6,000. There are many more such home grown innovative technologies that can be nourished and promoted for preventing crime and reducing re-offenders.

The writer is Chairperson, the Legal Voice. He can be reached; mbillah57@gmail.com

IK

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Editor : M. Shamsur Rahman

Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

Editor : M. Shamsur Rahman
Published by the Editor on behalf of Independent Publications Limited at Media Printers, 446/H, Tejgaon I/A, Dhaka-1215.
Editorial, News & Commercial Offices : Beximco Media Complex, 149-150 Tejgaon I/A, Dhaka-1208, Bangladesh. GPO Box No. 934, Dhaka-1000.

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