Mercy and punishment
We should not punish in such a way that the criminal has no hope of being reintegrated into society and the cycle of crime is not broken. Justice simply cannot be revenge against caged human beings. And this cage is not just the prison but also the elitist, self-righteous society that constantly pushes poorer, marginal youths into crime and criminality, writes Anwara Begum
IS IT Dostoevsky who put it in us? He would cry out ‘Nooooo’ from his grave. Or, is it the media who did it? The media can do magic. Everywhere you look we are screaming for justice for the crimes committed against us. So many crimes are being committed around us! Murders, gang-rapes, arson, kidnapping, rampant bribery — you name it. We have found our position, both legal and philosophical (!): we must have justice. We cannot let the criminals do whatever they want against us, we want justice and justice means severe punishment from the book.
Catch them and kill them, quickly. That is how we feel about criminals. We the victims and the innocent have all the rights against the criminals. We become happy to know that the police have caught the criminal and have taken him into remand, and are torturing him to get the confession. The media airs our grievances and is satisfied that the criminal is going to be hanged. Surprise comes when data shows that crime is not decreasing but increasing. Crime, unfortunately, has deep-rooted socio-politico-economic reasons and cannot be eradicated even if we kill all the criminals. We give our police a freehand over the accused and expect it to safeguard law and order and function as an efficient force. How can it be efficient, and honestly and responsibly conduct investigations when it has unlimited power over the body of the accused? It does not have to do anything but torture the accused and get the truth (?) out of him. Truth from torture, indeed!
Reader, you must be thinking: ‘We cannot demand justice against heinous crimes then?’ Justice, oh, yes. We need justice, of course. A society must be just, not just developed and rich. It seems we have got the development part right (or have we?) but the justice part a little wrong. Do we, the Bangladeshis, have our own sense of justice, our own idea of, and orientation to, justice? I know, reader, you will say we certainly do. We do what everybody else does. The West catches terrorists and keeps them isolated in Guantanamo and tortures them, the Saudis keep beheading their murderers, Singapore gives severe punishment even for petty crimes, the Scandinavians castrate their rapists. We need to follow them, because they are better than we are. We need to follow and follow people who are better, who are higher up. If that is how we feel we will not go very far. Bangladeshis are a large nation, one of the largest in the world. We must have our own orientation to crime and criminals. Ultimately, crime and how we view criminals are both political. A nation must develop a sense of justice that reflects its own experience, struggle, social realities, knowledge and emotional universe.
Bangladeshis are not a very rational and clear-thinking people; and I say it with a degree of admiration. How come we have acquired this clear-cut sense of justice that criminals must have punishment ‘proportionate’ to the crimes committed? We must have picked it up from the world market of crimes and punishment and justice systems. ‘Proportion’ and ‘proportionate’ are precise and mathematical sounding too. But what is the use of being mathematically precise when your police is a monster and the justice system is corrupt and breaking down under the weight of money and elitism? How do you know that the criminal captured by your police is the real criminal? I know a brilliant student, one of the best our university has produced, who was arrested in a raid because he was unfortunate enough to be in a certain place at a certain time. His teachers had to try very hard to keep the police from torturing him in remand to make him confess to something he never did or could never do. Coming back from jail he told us that he felt our jails have more innocent than guilty persons in them. I was not surprised; that is not a discovery, is it?
When gender comes into play things become more complicated and emotionally charged. We don’t like to publish women’s stories or poems in our papers or literary magazines so that our women can try to step out of the prison of ‘objectification’ but we loudly whip up mass hysteria against rapists or persons accused of rapes! We are so self-righteous that we try to make crimes against women something from another world that requires quicker and more severe punishment. Of course, such demands can be supported by ideologies and discourses, distorted or not. They provide a screen behind which the media can hide its serious gendering practices. Reader, I am not saying gender crimes should be taken lightly. They should not be. But as regards gender crimes, and other crimes as well, punishment is only part of the solution. The socio-politico-economic reasons must be addressed. We must find our own solutions taking into consideration our own socio-politico-economic conditions. We should learn from other countries’ experiences but we cannot follow them. In India the protest against the gang-rape became violent, one policeman died; the accused rapists were attacked and injured inside the prison and forced to eat human faeces and urine. Will such treatment of the accused bring about justice for women in a very gendered society? Can women treat or have the accused be treated the way a very masculine society treats its criminals just because the victims happen to be women? Women should know better. Kafka wrote in The Trial that criminals tend to be attractive people and women are attracted to them. I have seen so many attractive and brilliant people passing time in prison! Sounds Kafaesque?
Police reform is needed badly and immediately. A society cannot have a sense of safety with the kind of law enforcement apparatuses, the police and the Rapid Action Battalion, that we have. Civilian control over coercive apparatuses is a must. That is just part of it. Police reform is not just better training and more sophisticated equipment. Corruption and uncontrolled use of force have to be eliminated. Both the government and the opposition know it is difficult. But they must come to a consensus that this sector has to be isolated from normal politicking and be reformed. The police must be paid a salary that is commensurable with a tolerable standard of living and the on-the-job risks they face. The nature of their training should be changed; torture in custody must stop and interrogation in the presence of a lawyer should be made mandatory. Death and injury while in custody must be taken extremely seriously. The government needs to realise that the rights of the accused in custody must be safeguarded and dehumanisation of the criminal should end. Unless we can do that we cannot prevent our coercive apparatuses from turning into dangerous mafias which make ‘representative government’ a sinister joke.
The government cannot do it all. We need to think about what we can do to contribute to the prevention of young people’s slide into criminality. I am not going to lengthen this piece with a shopping list of suggestions. But do we ever think about how parents, especially mothers, teach their children not to socialise with children of poorer people? I have seen mothers constantly ordering their children to be guarded, guarded against the children of our subordinates and others who are not from the same class or even from the same profession! Don’t we dehumanise children, both our own and those of unfortunate poorer people? Such unbridled elitism cannot be a sign of a healthy society.
We also need to get rid of this desire for precision in punishment. Do we, Bangladeshis, want to punish the criminal precisely and proportionately? We would be punishing so many people precisely and proportionately, guilty and innocent, but crime will not decrease. We are not a rich developed country and we must not follow them. The poorer and marginal people of a society tend to end up in prisons for all kinds of crimes, petty and serious. They must be treated with mercy when we mete out punishment to them. We have to be kind when we punish even serious criminals. Can we think in social terms? The criminal has destroyed another person; now to give proportionate punishment we are going to destroy the criminal, physically. Will that take care of our social problems? We have seen criminals growing in the fertile soil of society like tenacious plants. Look at the United States. They punish their criminals severely. But they keep punishing poor African-Americans and immigrants! And year after year they need more prisons to house the increasing number of criminals.
Laws are not neutral; everybody knows that. Punishment must be tempered with mercy so we don’t punish so harshly. Being proportionate is being harsh. Mathematical terms can be correct and cruel. We should not punish in such a way that the criminal has no hope of being reintegrated into society and the cycle of crime is not broken. Justice simply cannot be revenge against caged human beings. And this cage is not just the prison but also the elitist, self-righteous society that constantly pushes poorer, marginal youths into crime and criminality. Justice must incorporate mercy which is irrational and very imprecise.
Anwara Begum is a professor of political science at Chittagong University.
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