Home | Back Issues | Contact Us | News Home
“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 67
May 10 , 2008

This week's issue:
Human Rights Analysis
Law News
Law opinion
For Your Information
Rights Monitor
Law Event
Fact File
Law Lexicon
Law Week

Back Issues

Law Home

News Home


Human Rights analysis

Criminal justice system and human rights

Khan Ferdousour Rahman

Criminal justice is the system of legislation, practice, and organisation, used by any government or the state, which are all directed to maintain social control, deter and control crime, and sanctioning those who violate laws. Criminal justice is distinct from the field of criminology, which involves the study of crime as a social phenomenon, causes of crime, criminal behaviour, and other aspects of crime.

Over time, criminal justice has got recognition of universally accepted principles as the following:
* Justice is proportionate to actions.
* Justice is retributive.
* Justice is vindicatory.
* Justice is compensatory.
* Judgment under the law is declaratory.
* Judgment under the law is remedial.
* Judgment under the law is directive.
* Burden of proof 'beyond reasonable doubt' equates to moral certainty.
* Inalienable right to property; individual cannot be forced to give up rights to property unless found guilty of a crime which amounts to forfeiture.
* No one can be treated like a criminal unless he/she has been tried and convicted as a criminal.

Criminal justice emerged as an academic discipline in the 1920s. The modern criminal justice system has evolved since ancient times, with new forms of punishment, added rights for offenders and victims, and police reforms. These developments have reflected changing customs, political ideals, and economic conditions. Exile was a common form of punishment in ancient period. For violent crimes, payment to the victim or their family was another common punishment during the middle ages. The criminal justice system consists of law enforcement (police), courts, and corrections which administer punishment for those found guilty. Criminal justice agencies operate within rule of law. When processing the accused through the criminal justice system, government must keep within the framework of laws that protect individual rights.

Historically police were not respected by any community due to their involvement with rampant corruption. The first police force comparable to the present-day police was established in 1667 under King Louis XIV in France. After that the first modern police force was established in 1829 by Sir Robert Peel (commonly said to be the London Metropolitan Police), which promoted the preventive role of police as a deterrent to urban crime and disorder. In the United States, police departments were first established in Boston and New York City in 1838 and in 1844 respectively. The notion that police are primarily concerned with enforcing criminal law was popularized in the 1930s with the rise of the Federal Bureau of Investigation (FBI) as the pre-eminent 'law enforcement agency' in the United States.

The first contact an offender has with the criminal justice system is with the police who make the arrest. Police or law enforcement agencies and officers are empowered to use force and other forms of legal coercion and legal means to effect public and social order. The term is most commonly associated with police departments of a state that are authorized to exercise the police power of that state within a defined legal or territorial area of responsibility. Policing has included an array of activities in different contexts, but the predominant ones are concerned with order maintenance and the provision of services.

The courts serve as the venue wherein disputes are then settled and justice is administered. With regard to criminal justice, there are a number of critical players in any court setting. These include the judge, prosecutor, and the defense attorney. The judge, or magistrate, is a person knowledgeable in the law whose function is to objectively administrate the legal proceedings and offer a final decision on how a case is disposed of. The prosecutor is the lawyer who brings charges against a criminal. It is the prosecutor's duty to explain to the court what crime was committed and to detail what evidence has been found which incriminates the accused.

A defence attorney counsels the accused on the legal process and, at trial, would attempt to offer a rebuttal to the prosecutor's accusations. It is the defence attorney's duty to present exculpatory evidence and argue on behalf of his client. In modern state, all accused criminals are offered the assistance of a defence attorney. Those who cannot afford a private attorney may be provided with one by the state, though historically the right to a defense attorney has not always been universal.

Truth is decided by which party offers the argument that is more sound and compelling. But entire trial process, whatever the country, is fraught with problems and criticisms. Bias and discrimination form an ever-present threat to an objective decision. Any prejudice on the part of the lawyers, the judge, or jury members threatens to destroy the court's credibility.

Offenders are turned over to the correctional authorities from the court system after the accused has been found guilty. Like all other aspects of criminal justice, the administration of punishment has taken many different forms throughout history. Earlier when civilisations lacked the resources necessary to construct and maintain prisons, exile and execution were the primary forms of punishment. The most publicly visible form of punishment in the modern era is the prison. Prisons may serve as detention centers for prisoners before, during, and after trial. Early prisons were used primarily to sequester criminals and little thought was given to living conditions within their walls. This can also been seen as a critical moment in the debate regarding the purpose of punishment.

There are numerous other forms of punishment which are commonly used in conjunction with or in place of prison terms. Monetary fines are one of the oldest forms of punishment still used today. These fines may be paid to the state or to the victims as a form of reparation. Probation and house arrest are also sanctions which seek to limit a person's mobility and him opportunities to commit crimes without actually placing him in a prison setting. Many jurisdictions may require some form of public service as a form of reparation for lesser offenses. Punishment in the prison may serve a variety of purposes. First, and most obviously, the incarceration of criminals removes them from the general population and inhibits their ability to perpetrate further crimes. Many societies also view prison terms as a form of revenge or retribution, and any harm or discomfort the prisoners suffer is 'payback' for the harm they have caused to their victims. A new goal of prison punishments is to offer criminals a chance of rehabilitation. Many modern prisons offer schooling or job training to prisoners as a chance to learn a vocation and thereby earn a legitimate living when they are returned to society. Religious institutions also have a presence in many prisons, with the goal of teaching ethics and instilling a sense of morality in the prisoners.

Execution or capital punishment is still used around the world. Its use is one of the most heavily debated aspects of the criminal justice system. Some societies are willing to use executions as a form of political control, or for relatively minor misdeeds. Other societies reserve execution for only the most sinister and brutal offences. Others still have outlawed the practice entirely, believing the use of execution to be excessively cruel or hypocritical.

'Justice to Common People' is the primary objective of the legal mechanism of any country. But in the present situation the common people are having hardly any hope of getting justice. In the judicial mechanism there are three players, i.e. judge, legal practitioners and the common people; among which the common people are the target group and at the receiving end everywhere. The unspoken law of delays in most courts of many countries is the main roadblock in the way of distributive justice. Pending cases need long time to dispose off. The situation in the subordinate judiciary is more serious, as numerous cases remain pending in the subordinate judiciary. Appeals, adjournments and stay orders etc. are certain complex areas in the subordinate judiciary which must be addressed in order to have a free, fair and timely process of justice.

The writer is a freelance contributor to The Daily Star.

The writer is a freelance contributor to The Daily Star.


© All Rights Reserved