Plea bargaining without rule of law may lead to abuse

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Editorial, The Daily NewAge, Dhaka, Bangladesh, September 13, 2007

http://www.newagebd.com

According to the law adviser to the interim government, Mainul Hosein, the government is considering the introduction of plea bargaining to speed up the trial process. We welcome this initiative of the government and agree with the law adviser that plea bargaining, which is in practice in many countries around the world, could have been introduced much earlier. The practice of plea bargaining allows an accused to bargain for a reduced sentence if he or she pleads guilty to an alleged crime than the sentence that he or she is likely to receive if the case goes to trial and the person is found guilty of the crime. Therefore, plea bargaining gives those accused of crimes an incentive to plead guilty because of the promise of a lesser punishment. However, plea bargaining works on the assumption that those who are actually innocent of the crime that they are accused of, and are therefore confident of winning in court, will never plead guilty to those allegations. Hence, what is absolutely essential for the practice of plea bargaining to be part of a system that ensures the delivery of justice is the existence of the rule of law, where the basic rights of all citizens, even those accused of crime, are upheld and an accused is considered innocent until proven guilty by a court of law or willingly confesses to his or her crime. If the rule of law exists in society, allowing the practice of plea bargaining can indeed bring positive results by speeding up the trial process and allowing for quicker disposal of the hundreds of backlogged cases, while at the same time ensuring that justice is not short-changed.

However, in the absence of the rule of law, the practice of plea bargaining can lead to great abuses of the power and authority of the state. In the present circumstances, where the country is governed by a military-driven interim government under a state of emergency that has suspended people’s fundamental rights, and at a time when there are widespread allegations of harassment, abuse and even torture of those in custody, there is reason to fear that the practice of plea bargaining may be misused by the government. For example, by using a carrot and stick approach, i.e. threatening the accused with abuse if he or she does not plead guilty and by promising leniency through the practice of plea bargaining if he or she does, the authorities can compel even those who are innocent to plead guilty of the crimes that they are charged with. By making the accused plead guilty, the prosecution would be able to avoid having to prove the person’s guilt in court. Yet, this would result in a most shameful miscarriage of justice.

Therefore, we sincerely hope that this government will not use the practice of plea bargaining to make people plead guilty so that it wouldn’t have to prove their guilt. Instead, we hope that the rule of law will be ensured so that those who are actually innocent of crime do not face any pressure to avail themselves of this facility.

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