11 year old child domestic worker Sabina Akhter was found in the street of Dhaka with multiple injuries caused by torture. The images of her battered and bruised face horrified the entire nation.
A month has been passed since the incident, perpetrator Ayesha Latif has not yet been arrested. Neither we have seen any visible attempt by police to capture the perpetrator. Instead, if the reports of the credible national media outlets are to be believed, the case may not go further as the accused has already cut a financial deal with Sabina’s family.
And call it a disgrace, our criminal justice system which includes lawmakers, police, prosecutors, and judges seems to have no issue with such an unethical deal.
It reminds me of Mahfuja Akhter Happy another 11 year old domestic child worker, the torture victim of Cricketer Sahadat and his wife Netro Sahdat. Happy was also found bettered and bruised in the street of Dhaka.
Soon after being reported, Shahadat and his wife fled and ran like criminal thugs, took police to go extra ordinary length, including phone tracking and numerous raids to capture them.
Yet, despite all the undeniable evidences of torture, they were acquitted by judge Tanjila Ismail of a tribunal for prevention of women and children repression in Dhaka.
The tribunal found the couple not guilty of the crime, as if, the girl’s torture was some ghostly event, or fabrication of media.
Poor girls like Sabina and Happy underscore the power of money and connection in Bangladeshi society. Rich and powerful couples like Sahadat-Netro and Ayesha- Taslim have exposed, despite economic advancement, Bangladesh still is a country of callous injustice and gross inequality, where the rich can get a better deal over the poor and can even get away with a crime as heinous and well documented as these.
They serve as dreadful reminder, that, far too often, Bangladesh’s commitment to rule of law is nothing more than an empty promise.
But more importantly, the failures to deliver justice in cases that are as well documented as Sabina and Happy, expose our criminal justice system naked in public- a system of which- known to be reasonable people such as prosecutors and judges are part of.
After Happy’s verdict, media reported quoting the prosecutor of the Tribunal Ali Asgar, that the couple was being released as the prosecution failed to prove them guilty.
Considering the bitter reality, that the financial circumstances of the victims as poor as Sabina and Happy, that they care more about a livelihood and a financial future than justice, is indeed an advantage for wealthy criminals to cut a behind the door deal, and eventually escaping justice, it is understandable that the prosecutors some time may have trouble establishing a case beyond reasonable doubt which is required for criminal conviction.
But that was not meant to become a factor in Happy’s case. If justice was not to be done in a case as graphically well documented as this, then when?
It is widely rumoured within the legal circle that many prosecutors who are appointed by the state seek such appointments because their skills are so poor, it’s the only way they can make a living. The best skill they are rumoured to have is cutting leniency deals outside the court room and off the record, even some time willing to sell an innocent person down the river.
This is one of the main reason responsible for miscarriage of justice in Bangladesh, and our government and the lawmakers somehow learnt to keep a blind eye about it, pretending, that as the underprivileged like Happy and Sabina were assisted by counsel, their obligations have been fulfilled, which, to be honest, is nothing but a delusion, as it has long been recognized in the legal profession that the right to counsel is the right to effective assistance of counsel.
None, because of their positions, would know these ground realities better than Judges such as Tanjina Ismail.
Then the question was that, what had she done, knowing, as the trial judge she has an overarching duty to conduct a fair trial and to prevent a miscarriage of justice, and it is of course not a step too far for a judge to intervene where the interests of justice require it?
This is a common knowledge for the judges of the modern judiciary, that poor performance of the prosecutors and defence lawyers often leads to miscarriage of justice and this is why a more interventionist approach has become a common practice among the judges of modern judiciaries.
Recently in Australia, a trial judge Mark Dean called lawyer Benjamin Linder “Incredibly stupid” accusing that his failing meant the client could not get a fair trial.
In 1993 a British Royal Commission on criminal justice suggested the judges to take a more interventionist approach when they see lawyers performing poorly in the court.
A quote by Edmund Burke is very relevant in this context, “It is the duty of the judge to receive every offer of evidence, apparently material, suggested to him, though the parties themselves through negligence, ignorance, or corrupt collusion, should not bring it forward. A judge is not placed in that high situation merely as a passive instrument parties, He has a duty to his own, independent of them, and that duty is to investigate the truth”
As long as the Judges and prosecutors fail to take a firm stand, incidents like Happy and Sabina will keep happening, as those with money know that they can pay a way out of any wrongdoing, no matter how deadly the crime is.
A miscarriage of justice is not just about innocent people being found guilty. It is also about guilty people found innocent.