The Role of Prosecutors in Bangladesh---Some Suggestions ---Md. Momenul Haque
The Prosecutor, in general, is charged with bringing the accused in criminal cases to justice in the state. Responsibilities vary from one jurisdiction to another. Some countries, Prosecutors are in charge of all phases of criminal proceedings from investigation by police, through trial and beyond, to all levels of appeal. Many also defend the states in civil actions.
Functions of Prosecutors in Bangladesh : In Bangladesh Prosecutors are engaged limited in conducting and defending the govt. cases in the courts of Magistrates, district and session judges. In district and session courts, They also conduct and defend appeal case arising out of Magistrate courts. In the High Courts, and the Supreme Courts, the attorneys conduct and defend cases of original jurisdiction and appeals, withdraw and compromise the cases as and when legally necessary.
There are three kinds of prosecutors in Bangladesh :-
(i) Court Inspector who conducts cases in the lower courts i-e Court & Magistrates.
(ii) Prosecutors who conduct cases and appeals District and session courts.
(iii) The Attorneys who represent the Govt. in High Courts and Supreme Courts.
All of them are appointed by the Govt. The Court Inspectors are deputed from the Police Departments. The others are appointed by the Govt. from among the lawyers by the Ministry of Law & Justice. Their appointments are temporary in nature.The functions of the court inspectors are supervised and monitored by the Ministry of Home affairs, whereas that of Public Prosecutors and Attorneys by the Ministry of Law and Justice.
Temporary. There are not permanently encadered. Role of Public Prosecutors in investigation : Generally the prosecutors have no role in investigation of cases in Bangladesh. Only in Anti-Corruption cases the Prosecutors play a small role like giving opinion in submitting charge sheet.
To give or not to give investigating powers to the prosecutors is a very pertinent question in the administration of criminal justice. Due to the low rate of conviction of the criminal cases instituted by the Police, thinking has changed. The investigating agency blames the Prosecutors (Court Police, Public Prosecutors) for their poor performances in conducting cases i.e. presenting witnesses, interpreting the evidence in favour of the case and defending the prosecution witnesses. Police i.e. the investigating agency express their strong sense of regret that the prosecutors foil their hard labour and pains- taking efforts in finding out the truth and hauling the criminals, through their negligent and inefficient performance in leading the cases to conviction. This results in the acquittal of large number of criminals free of criminal liability.
Consequently the criminals get encouraged, and the crimes go on increasing destroying the very social fabric. Now giving a role in investigation to the prosecutors has the following advantages :
(i) It gives a more judicious basis to the charge sheet, because the prosecutors also look at the case from the angle of the defense case. Thus he can file the case by making it free from any contradiction and confusion.
(ii) It makes the prosecutors more responsible. Since the charge-sheet has been submitted by Police on his guidance and instruction the full responsibility of prosecuting the case to conviction lies on him. In this system he does not have any chance of blaming the investigating officers. So, he becomes more responsible and responsive to his challenges.
(iii) It also, will minimize the load of courts because the evidentially weak cases will not be submitted to the court. As a result wastage of timeand money of the Govt. and the litigating people will be avoided .
(iv) It will also enhance the credibility of the judiciary by making it more effective and giving a positive look in the sense that it punishes the real criminal and does not provide any opportunity to harass the innocent people.
(v) It will create a good rapport between the investigating officers and the Prosecutors, and set an effective co-ordination between the two.
(vi) It will also enhance the knowledge and skill of the both through mutual exchange of experiences.
Giving a role to the prosecutors in investigation has also some disadvantage :
(i) It may retard the progress of investigation some times, in the sense that the Investigation officers think the total involvement of prosecutors as an interference in their work.
(ii) Indirectly, it may also create occasion for clash between the Investigation officers and the Prosecutors
(iii) In some way, it may tell upon the mobility and free decisions of the investigating officers.
(iv) It may also effect the efficiency and attitude of the investigating officers as it may create leakage of the necessary secrets during
investigations.
(v) It may turn to involve the prosecutors in preventive actions of the Police and this may create adverse effects on emergency actions of them.
So the prosecutors may be fruitfully involved :
(i) In studying and analyzing the complaints, evidences received and collected.
(ii) In making necessary forecast on the trend and course of investigation.
(iii) In guiding and advising the investigating officers to collect and examine evidence and witness legally necessary.
Role of Prosecutors in the case disposition and the discretion enjoyed by them :
(i) The Prosecutors are entrusted with the full responsibility of examining witness, producing evidences and proving the exhibit in the court in favor of the Govt. case.
(ii)He also lawfully defends the witness during cross-examination by the defense for ends of justice. In this respect the Prosecutors are given the full responsibility.
(iii) The Prosecutors are in full control of Govt. cases. If the informant / complainant or the victim or his representative wants to engage a private prosecutors for better conduct of his case against a stronger defense by highly paid lawyers. The private prosecutors has to work on his (Prosecutors) consent and guidance. His (private prosecutors) role is only auxiliary.
(iv) The prosecutors are also empowered to withdraw or compromise the case as and when necessary with the consent of the court.
This definitely has remarkable advantages :
(i) This enables the prosecutors to freely work for his case. He is not retarded by any interference.
(ii) Moreover, on principle the prosecutors must be given freedom to conduct his case for ends of justice. In judicial proceeding any pressure
or interference on prosecution is bound to have some negative effect. So, it better fits in the principle of Rule of Law.
(iii) Getting discretion he thinks on his own and projects the case on his design and makes encounter for probable defense attack.
(iv) On the other hand the discretion automatically makes him more responsible for his case as he is left with no pretext or excuse to justify his failure.
(v) The discretion brings speed and quality in prosecution at large.
Disadvantages :
(i) But system as prevailing in our country, to some extent, tantamounts to monopoly in the prosecution and creates a lot of problem. The (public) prosecutors are low paid. They are paid a retainer fee and a daily fee per case. This is very low in comparison with the very high fee given to the defense lawyers. The defense engages according to their financial capacity, very good lawyer who defend the case more adroitly and intelligently. They are far better prepared then the prosecution lawyer.
(ii) Moreover the number of cases on his responsibility is huge to which he can not pay proper attention, engage his labour and time. The result is, the number of prosecution cases are ending in acquittal creating adverse effect on the law and order of the country.
Under the circumstances stated above the discretion should be limited to the following cases :
(i) In case of compromise or withdrawal of case. In such circumstances he must have the permission from the District Magistrate who is in charge of the law and order of the administrative area.
(ii) He must also submit report to the District Magistrate stating the reasons of failure in particular case together with the suggestions for rectification in future such cases.
(iii) He should not have full discretion in prosecuting the suspects. Before prosecuting he should satisfy him self that the case may end in conviction. This caution should be exercised to save time of the judges and the prosecutors and the money of the Govt. and litigating people.
(iv) He must also report to the local authority recommending for appeal where necessary.
Of course these may be termed as accountability clauses.
Role of Prosecutors in international Co-operation :
In the backdrop of globalization, gradual eradication of market boundary,easing of immigration rigidity by different countries for expatriate workers, tourism and establishment of various regional organization, the crime and criminalisation has spontaneously been internationalized. So, the need for the role of the prosecutors in international co-operation is strongly felt now a days. All countries should come forward to find out and define comprehensively the role of the prosecutors keeping in mind the mutual national interest.
Bangladesh is a new country. So, it did not have due opportunity to develop international co-operation in the field of prosecution.
Institutional structure of full-fledged prosecutor's cadre does not exist in Bangladesh. So, any formal and effective involvement of prosecutors in the mutual legal assistance like extradition, transfer of prisoners and the international fugitives has been absent. Besides, as a new country it has not yet gone into extradition treaties with many other countries. But it is trying fast to make such treaty with other countries, and by this time singed and extradition treaty with Thailand.
The involvement of prosecutors in international field will give following advantages :
(i) It will help prosecute the cross-border criminals very smoothly as the investigation, collection of evidence and prosecution of the accused will be possible in the courts whenever they are caught.
(ii) It will make the escape difficult for the criminals from the prosecution even by crossing the national border.
(iii) It will save time and money necessary for prosecuting a criminal by quick trial.
(iv) It will also save evidence from tempering and destruction.
(v) It will work as a deterrent to cross border crimes like trafficking of drug, women and children.
(vi) It will also put a considerable check on money laundering which is increasing at alarming rate.
(vii) It will also help in prosecuting the fugitives and war criminals.
It may have the following disadvantages :
(i) Since the different countries have different legal systems, procedures and terms of punishment, uniformity in trial may be hard to find. As a result, the accused may not be adequately punished. Rather, they may manage to escape from penal action from a country with a severe penal provision to another with lighter once.
Therefore, the prosecutors may be involved in the following international fields :
(i) In studying, analyzing the existing laws of the co-operating countries and bring congenial uniformity in the laws and procedures.
(ii) Creating and enriching an international prosecuting culture through exchanging views, experiences and adjudication.
(iii) In moulding the attitude and out look of lawyers, investigators, executives and judicial officers and giving a common international shape.
(iv) In detecting, prosecuting and handing over of criminals and fugitives.
(v) In checking, indirectly, trafficking of women, children.
(vi) In storing information relating to international crimes and exchanging them among different countries.
Conclusion :
Therefore, if we are to keep our civilization growing and pulsating with optimism for peace and happiness, we will have to improve the state of prosecution in our countries and establish strong international co-operation among the prosecutors.