Countrywide political terrorism and agitated entreaty of the victims and their family for 'justice' require a revisit whether our 'sentencing policy' and 'penal scheme' are capable of providing them 'just remedy' or widely cherished 'justice'.
As we know, a 'remedy' is 'just' if it is lawful or fair. Likewise, 'justice' denotes fairness, moral rightness; it represents a legal scheme in which every person receives his or her due from the scheme. Now, consider a scenario: an innocent truck driver while driving his loaded truck is attacked with petrol bomb. The severely injured truck driver after several days struggle for life dies in hospital leaving (i) huge medical expenses, (ii) unpaid bank loan for the truck, and (iii) the helplessness of the dependants. Now what is 'justice' for this ill-fated truck driver or what will bring 'just remedy' to his family?
Assuming that in this given scenario, the police succeed in bringing the offender/s to trial and the prosecution succeeds in proving the case beyond any doubt. Now, as per section 302 of the Penal Code 1860 or section 6 of the Anti-terrorism Act 2009 the court awards the offender/s capital punishment, or imprisonment for life, and an amount of fine. Under these sections amount of fine is indefinite and depends on judicial discretion. Section 545 of the Code of Criminal Procedure 1898 authorises criminal courts to pay expenses or compensation to victim/s out of the fine. However, experience suggests that whenever an offender is awarded death penalty or life time imprisonment the amount of fine (if is not absent) remains mere nominal and disproportionate to the consequential lose. Now, with 'no' or 'little' compensation paid out of the fine, is the 'victim' said to have received 'just remedy' or 'justice'?
The penal scheme of Bangladesh is mainly preventive in nature. It intends to prevent recurrence of crime by incapacitating the offender. But, how to restore the direct and associated lose sustained by the victim? Mere imprisonment of the offender serves interests of the society but damage sustained by the victim remains un-restored. Modern criminologists propose for restorative justice and suggest that an ideal punishment should include both compensation as well as imprisonment. Therefore, in addition to the imprisonment, payment of compensation is the best possible means to indemnify the victim. In fixing the amount of fine the court must consider the present and possible future loses or injury to the victim, magnitude of the offence, previous crime record and financial capacity of the offender.
In Bangladesh, jurisdiction of the magistrate courts to impose fine is seriously abdicated. As per section 32 of the Criminal Procedure Code 1898 the amount of fine which the first class, second class and third class magistrate may respectively impose is ten thousand taka, five thousand taka and two thousand taka. The amount of fine was updated by an Ordinance lastly in 1982. After expiration of more than three decades, it is imperative to substantially enhance the fine so as to enable the magistrates to provide just compensation to the victim. The upper criminal courts though have no limit in imposing fine, often lack uniformity in imposing and fixing the amount of fine. It is desirable that the High Court Division in exercising supervisory jurisdiction under article 109 of the Constitution should prepare and issue a 'Practice Direction' to bring uniformity in 'imposing', 'fixing' and 'using' fine.
Jeremy Bentham in Hedonism principle suggested that achievement of pleasure is intrinsic human desire and pain is intrinsically undesirable. To Gregg Barak, for criminals with little or nothing to lose, imprisonment may be perceived as little more than an inconvenience, an opportunity for a little rest and a chance to renew old friendships in jail. He observed that mere imprisonment is not enough to stop 'falling back' into criminal behavior.
The criminal administration of justice must create a high degree of certainty that punishment will follow a crime immediately, and quite harshly. Moreover, if crime is to be deterred, punishment must overrule the pleasures gained from the crime. Hedonistic and rational criminals weigh the costs against the benefits of crime, and give up, if on balance, the costs exceed the benefits. Therefore, the punishment must encompass proportionate fine: firstly, to maximize the cost of the offence so as to induce the offender to choice rationally not to indulge in crime; secondly, to restore the victim justly.
The writer is Lecturer in Law at Jahangirnagar University.