Shahara Khatun, “Lock your doors”, and rule of law

This morning I saw yet another chest thumping, foot stamping and hair bending pronouncement from Bangladesh's Chief Law Enforcer, Shahara Khatun. This was so out of the left field that I kept wondering why is this inane person the face of the Laws of the Land? So, here it is without further ado dear friends. "Lock your doors when you go away from Dhaka for the Eid Holidays". Duh, I forgot to buy a lock and now I need to run around and buy one to comply with the Minister's command. "Lock your door" is the most important security message that Shahara Khatun could give to the people of Dhaka!

Security, application of law evenly, transparency of the actions of RAB, due process for conviction and pre-defined procedures for dealing with crimes are the things that ensure justice for all. These are also the things that are the hallmark of a modern functioning society and our Chief Law Enforcer is silent on these critical issues but hey lock your doors!!

Sometime ago, I had to look up the role of Shahara Khatun in the Bangladesh Government website. I see her mug on bdnews24.com every so often proclaiming that this or that criminal or political adversary will be caught within 48 hours and, um, punished! She is sort of the Town Crier, police, judge, jury and executioner rolled into one. I remember this colourful guy from my childhood who would proclaim his potion will cure arthritis (baat) and all other ailments within 48 hours if you took it with Iman. If anyone confronted the shill he would simply scream louder, "you cannot be cured because you have no Iman (belief)". End of story! However, it seems Ms. Khatun is quite an important functionary in the current government unlike what her media presence would lead you to believe! People who go off to the media and blurt out whatever comes to their mind are not viewed as heavyweights. But, she seems to perform the role of heavy. Someone tell the good lady that it is far far better to under-promise and over-deliver. A high priced MBA education teaches this mantra most of all; do the work, deliver more than expected and try not to promise anything.

So, why am I talking about Shahara Khatun while the title of this rant says "Rule of Law"? It seems to me that she embodies all the things that have gone awry with the concept of Rule of Law in Bangladesh. Almost every criminal act is instantly politicised, whether or not the act is political. She is the highest ranking official in the country in terms of law enforcement and she is on every incident talking away. No one seems to check whether the "talking" is followed by any "doing".  Her very involvement gives the incident a political hue. For example, it is my guess that the attack at bdnews24.com office some times ago were acts of thuggerry gone a little out of the control and not some well thought out political vendetta. Murder of the two journalists (Sagar and Runi) may or may not be politically motivated but the act itself is undoubtedly criminal. Maybe I'm wrong but in most cases simple criminal acts should and can be dealt without invoking the gods of politics. There should not be calls for special tribunals, parliamentary investigations and so forth. By elevating each and every act of violence and criminal act to the level of national politics we are merely making the water muddy and paralysing the resources. By labelling everything political we are greatly subverting the rule of law and feeding the conspiracy theorists' unending appetite.

Establishing rule of law as we understand it is a long process and requires a cultural shift. However, as a first step we can start to separate the act of crime itself from the motive of crime. Regardless of whether a murder was committed because of political reasons or someone's pathology is not that relevant. The fact remains that murder was committed and there must be punishment for the act regardless of the motivation. Similarly, Bangladesh has criminal codes for most crimes, yes they are handed down from the British Raj but there are these codes and rules for dealing with crimes. So, why are they not enforced uniformly? My two cents is that, the "Aristocracy of Pull" subverts the enforcement of the laws of the land. If someone has the right ear then he/she can get away with murder, literally. So, why is that possible? It is possible because the rules and the punishments associated with the rules are opaque at best. The solution is to try to reduce the opacity of the rules and punishments for crimes. This has been done in varying degrees in various countries. Let me explain the US effort.

The US congress passed The Sentencing Reform Act in 1984 and created the US Sentencing Commission. In the 1980s the US was at the beginning stages of the so-called War on Drugs. There were high rates of crimes in various parts of country. However, dealing with crimes and punishments was an uneven and somewhat unjust enterprise. Depending on your race, your connection, your location you might get a 10-year prison time for badly hurting someone and the same crime could get you a 6-month sentence in some other jurisdiction. If you were black you were much more likely to get a stiffer sentence. The Sentencing Commission came up with a mandatory guideline and is still tweaking it after almost 30 years. The guidelines' main goal was to eliminate or at least reduce sentencing disparities and come up with determinate sentencing. The second objective came from the fact that sentences were indeterminate whereby the judge would sentence someone to say 5 to 20 years in prison. Now, depending on the jurisdiction, the parole office workload, colour of skin and many other variables someone could be out in five years and some may rot in prison for 20 years. One of the objectives was to find uniformity in punishments for similar crime. So, they took the subjective part out of the equation.

To explain the sentencing guideline will take days and thousands of pages. Here is the essence; they came up with a numerical point system whereby the base crime gets a number of points regardless of who committed the crime or where it was committed. So, let's say you were caught after a bank robbery then it will get you 16 points. If you had a gun with you it will increase the point counts, the amount of money robbed will add more points. So, let us say you end up with 29 points and the guideline will then assess your prison time to be 60 months. The judge can depart upwards or downwards from the specific sentence based on mitigating or aggravating factors. However, the departures open the judge to appeals and accusations of judicial misconduct. So, this subjective weapon is used sparingly. The problem with this system is that there is no room for subjective factors, no room for judge's experience to work through the issues. It is like a straightjacket and in the US it has contributed to very high level of incarceration and other societal ills. There are nearly 2.5 million in the prisons of the US at any given time. But, it achieved the goal of taking some of subjectivity, aristocracy of pull and racial biases out of the system.

In Bangladesh a transparent set of guidelines and the enforcement of those guidelines will bring much needed respect for law. The reason people run off to the aristocracy for "suparish" or invoke political connection is that everyone knows you can avoid punishment if you bend the right ear, spend the right amount of grease money and scream louder than the next guy. So, what would happen if that power of shaping the laws and punishments just vanished because everything is pre-determined and transparent? Over time people would understand that there is fully stated penalty for criminal acts and no amount of suparish can change that. As I said this would take years maybe even a generation but we can get started and give Shahara Khatun a break, no?

First of all, I think establishing the rule of law requires the acceptance that our current system is not working and people do not trust the legal system to uphold the simple precept of "Justice for All". After that there needs to be some very specific actions such as:

Establish and publish the sentence or punishment for a crime without paying attention to motivation. Say murder gets you a life sentence if you are convicted for the murder regardless of the reason. It will be hard to achieve but if the rules are well publicised, transparent and enforced starting a date certain then there is a chance that Bangladesh will start down the path of achieving rule of law.

Use the web to widely publicise each and every crime and its attendant punishment. I am sure the law students will be glad to take on this project.

Separate the punishment from guilt determination phase. This is a singular achievement of the Western societies. The guilt is determined by the jury but they are not allowed to take the potential punishment into consideration at the guilt determination phase. This means sympathy or biases are somewhat checked. Punishment then becomes a somewhat numerical and objective exercise. So, for example say a kid throws acid on a girl's face. The punishment for that crime is pre-determined; let's say 150 years in prison. The legal system then simply has to prove the guilt beyond a reasonable doubt. The hate criminal gets 150 years no ifs and buts.

Vigorously enforce no torture by the police. I read a book by Bidisha where she describes her plight and torture by the police. The whole process seems medieval to me. The police are simply the custodian of a person and as such they should not be allowed to get confession or statements without some semblance of due process. This is a tricky thing to enforce but can be done by implementing strict procedural guidelines.

I think buying a good lock is good advice but we need a lot more than just a good lock. We need phenomenal cultural shift and an earthquake of transparency. All the fissures in the legal system must be exposed and be in plain view. Only then will we have a society that has due process and justice for all. Oh, yes and give Shahara Khatun a break from making inane pronouncements from the podium thus embarrassing the country and herself!

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Kayes Ahmed lives in Boulder, Colorado, USA with his three dogs. He runs a small yet global apparel and design business based in Boulder.