The perils of prosecution

Chief Justice Surendra Kumar Sinha has hit the nail on the head.

Speaking as chief guest at a national dialogue on human trafficking on Sunday, he decried the present pervasive system of appointing ruling party men as public prosecutors. He also spoke about their poor knowledge of criminal laws. He deserves kudos for his strong pronouncements on the sorry state of public prosecution system.

The reality is: appointing lawyers who belong to the ruling party as public prosecutors and government pleaders has now become a convention. Through this practice, the party in power favours its men at district levels by appointing them as the State's law officers.

Loyalty to the ruling party is considered the topmost qualification to get the appointments. Efficiency and 

professionalism are of little value here.

Due to their inefficiency, they cannot properly represent the government when any case is filed by or against the government. Their failure to perform makes the government the biggest loser.

Similarly, they cannot perform their due role when they need to stand against their party men in criminal cases. This destroys the prospect of justice.

Lack of effective procedure to screen and appoint prosecutors sometimes generates embarrassing situations. For example, in June 2007, a lawyer accused of a murder was appointed public prosecutor in Naogaon district. He was appointed by the district magistrate with the law ministry's approval.

Thus, the government forms its prosecution wing in every district with partisan men who are given the important responsibility to look after the criminal and civil cases for and against it.

There are as many as 4000 odd public, additional and assistant prosecutors and government pleaders across the country, said law ministry sources.

To discuss the significance of their role in criminal justice, take the example of the function of a public prosecutor.

When someone commits a crime of murder, he has committed the crime against the State. It is the responsibility of the State to punish the offender. Whether the State can successfully perform its responsibility depends largely on the performance of a public prosecutor who represents the State in the criminal case.

But there is no permanent prosecution system in Bangladesh. Whenever a party forms the government, all prosecutors are removed and replaced by a new group. Thus the country has been living with a disposable prosecution system.

There has always been demand for reforming the prosecution system with professional lawyers who are supposed to dispense justice.

But the successive governments have not paid any heed to the demand.

In December 2003, the then law minister Moudud Ahmed at a workshop on strengthening the criminal justice system had proposed the formation of an independent public prosecution service. But there was no progress in this regard. The party that was in power back then had not lost the opportunity to appoint its leaders public prosecutors.

The past caretaker government led by Fakhruddin Ahmed in 2008 had done the groundbreaking work of enacting a law through the promulgation of an ordinance to set up a government attorney department.

The law made through the ordinance had mandated that an individual must have certain qualifications to get appointed as a public prosecutor.

The law ministry had also sent a proposal to the establishment ministry for creating more than 3,000 posts for the attorney department.

Lawyers had welcomed the caretaker government move to stop politicisation of the public prosecution services.

But as soon as the tenure of the caretaker government ended in early January 2009, the move was reversed.

The Awami League that came to power in January 2009 had opted for retaining the system of appointing party men to the prosecution wing, allowed the law made by the caretaker government to cease to have any effect. The AL-led government has never made any move to reform the public prosecution system.

Those who are serving as public prosecutors are not paid poor remunerations. Except the public prosecutors, many additional and assistant public prosecutors do their private practices side by side. Thus, they use their positions to advance their private practices. Whenever they appear before the courts for their personal clients, it creates an unhealthy atmosphere in the courts. 

Poor performance of public prosecutors and weakness in police investigation were identified long ago as the major reasons for the low rate of conviction in criminal cases.   

Yet, the present system continues to worsen the situation, jeopardising the prospect of providing victims with justice.

Establishment of an independent and permanent prosecution service and recruiting competent prosecutors through a transparent process are now the only ways to get rid of the present crisis.