A silent change has suddenly taken place in our system of criminal justice. A practice that was not even in place during the British colonial rule, has now been put in place. Yet it is unclear and mysterious how this came to pass. These pictures and descriptions of a number of Dhaka courts that have been seen can confuse one with courts of Cairo or Moscow. In place of the dock, there is an iron cage. Yes, you read that right. A cage like the ones animals are placed in at the zoo.
Some may question, what is the problem with having a cage instead of a dock? There are two problems – firstly, since in the eyes of the law, based on justice and equality, the accused is innocent until proven guilty, he cannot be treated in such a manner that is repressive and implies his guilt before being tried. Secondly, locking one in a cage is inhuman, humiliating and cruel.
Article 35 (5) of our constitution reads, “No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” Such action is contrary to the International Covenant on Civil and Political Rights (ICCPR). Bangladesh is a signatory to this covenant. Article 7 of this covenant is similar to Article 35 (5) of our constitution.
Also, Article 14 (2) of the covenant reads, “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” There is no indication of any new law or amendment of the existing criminal code regarding this change. Under what law, then, has this taken place?
It is surprising that such cages were not necessary even during the trial of violent militants. It is not that the criminals in the country have become more vicious or uncontrolled than before. There have been incidents of militants being snatched away from the court premises, but the blame lies fully on the law enforcement agencies in charge of the custody and security of the accused.
A few decades ago, such cages were seen in the courts of some East European and Latin American countries. Many have still not been able to forget the images of Abimael Guzman, the Peruvian Maoist guerilla leader who founded the Shining Path. But most of those countries later got rid of this system. Perhaps Egypt is the only country now where its accused persons have to remain encaged when appearing in court.
While everyone is advancing towards alternatives conducive to human rights, why are we regressing?
After paying a fine in the European Court of Human Rights, Russia brought about some changes and made a separate glass chamber for those considered to be dangerous prisoners. But many human rights organisations do not support that.
In stronger democracies, they are even removing the dock. It’s been almost half a century that the dock has been removed in the US courts. Over there, the accused sits beside his lawyer and if the crime is considered serious or the behaviour of the accused dangerous, special constraining measures are taken. But even if shackles are used around the ankles in such instances, this is kept out of sight. And yet according to statistics, the highest numbers of dangerous criminals are incarcerated in US prisons.
The US court’s explanation for this practice is that it is to ensure that there is not any sort of psychological influence on the 11 members of the jury who are common citizens, but given duty by the court to judge the crime. After all, until proven guilty by law, everyone is innocent and have equal rights as anyone else.
In Britain too, talks on doing away with the dock are on in full force. Justice, an all-party group for law reforms and human rights, in 2015 published a study report, ‘In the docks, reassessing the use of the dock in criminal trials). They reviewed the experience of various countries and came up with recommendations that all accused persons should be sat behind or near their lawyers, that the dock be removed, and if there are security concerns, that extra security arrangements be made in accordance to the court, and that the extra security measures are not visible to the members of the jury, etc.
Ensuring security of the court is certainly important. But it is baseless to think that possible security risks can come from the accused only. As mentioned before, the most sensational snatching away of prisoners took place during the transportation of the accused from jail to court. The other two major instances of dangerous prisoners being snatched away in Dhaka and Chattogram also took place outside of the court building. And the other incidents of the accused escaping were from police lock-ups near the court.
Many countries in the world today hold the trials of dangerous and brutal criminals by video, with the accused remaining in prison. While everyone is advancing towards alternatives conducive to human rights, why are we regressing?
The cruel irony is that even human rights activists, who have been awarded for their struggles in the cause of human rights, are having to stand on trial in such cages. Adilur Rahman Khan, the internationally renowned secretary of Odhikar and executive director of the same organisation, Nasiruddin Elan, are not prisoners, but are on bail. But many foreign human rights organizers have already been tweeting their anger at these two being locked in cages during trial. It is well known that they are the target of the government and ruling party’s ire. But their inhuman treatment during trial will do even more damage to the government’s image.
I had mentioned Egypt towards the start of this writing. All persons accused in criminal cases are kept in cages during trial in court there. The irony of fate is that Hosni Mubarak, who ruled the country with an iron fist from 1981 till 2011, also had to stand on trial in a steel cage after he was toppled from power. This unbelievable scene was printed on the first page of newspapers all around the world.
* Kamal Ahmed is a senior journalist
* This column appeared in the print and online edition of Prothom Alo and has been rewritten for the English edition by Ayesha Kabir