Oishee and our penal culture

"The murderer has killed. It is wrong to kill. Let us kill the murderer"—Arthur Koestler, Drinkers of Infinity (1969).

Oishee Rahman has been found guilty of 'parricide'. The court is satisfied to hand out a death sentence to Oishee. Media reports suggest that the trial judge found the O'level student's offence as 'premeditated' and 'cool-headed'. The trial also came to the conclusion that Oishee had committed the crime with her 'full senses' and she was not in a 'drunken state of mind'. The defense lawyer's plea of Oishee's being a minor and under the influence of toxic elements also did not attain ground. We assume that the verdict will be appealed against and the findings of and the punishment inflicted by the trial court will be tested in the higher judiciary. However, the case being unusual and unique in nature involves extra-legal factors and as such attracts huge public attention from the beginning. We raise a few issues, considering the case's extra-judicial nature, in this short write-up.  

The penal statutes by their very nature are rigid. Such rigidity is widely recognised in different jurisdictions. The judges hardly enjoy any freedom in interpreting such statutes. As such, when the commission of an offence is established, they have no other alternative but to strictly apply the provisions of the penal law. In spite of this, judges enjoy a good deal of discretionary power while sentencing given the nature, magnitude and impact of the crime committed. For example, the judge may provide a death sentence or life imprisonment, if somebody is found guilty of homicide. From that perspective, Oishee was considered by the trial court to be a fit case for death penalty as it seriously shocked and shook the conscience of the society. However, the social networks and media narratives suggest that many people see the issue with a flexible and reformist approach. 

Oishee's case is not merely legal. It's a psycho-socio-legal matter. The case has brought to light our preparedness to establish a relationship between law and psychology. The discipline suggests a serious study about law's response to appreciate the psychological factors of the offender. Moreover, the discipline also invites attention to the factors that influence the characters of the court (ie. judges, lawyers) in reaching a conclusion. The discipline also permeates the study of the psychology of law in defining a crime and prescribing a particular punishment. We may need to revisit our penal law to see the possible influence of this approach in our penal culture. 

Bangladeshi society is bombarded with the news of such crimes on a regular basis. As a result, the public mind favours rigorous punishments including death sentence for the wrongdoers. This social construction also comes from the frustration with the widely practiced culture of impunity that allows criminals to go scot-free. But even then, we cannot remain indifferent to the modern developments of law taking place globally and its cross-disciplinary implications. 

The Oishee case also unfolds the necessity of revisiting the aim of our punitive culture. The reformation theory, that the law students are taught, has to have a meaning to our legal understanding. The judiciary should come forward in fashioning new penal jurisprudence against the old state of the colonial penal system. The Oishee case should not be confused with the crimes committed by repetitive wrongdoers. As such, there is scope to apply a reformative approach to the case. For, it is not clear what 'retributive' purpose the death sentence in this case is going to serve. The paradox and pathology of the death sentence is that nobody has better interest in Oishee's parents' lives than herself.   

The defense's effort to save Oishee's death penalty largely revolved around proving her to be a 'minor' (below the age of 18). It may be that had they been able to prove that she was a minor, they at least would have been able to invoke the protection of a law that bars death sentence to children. It reminds us about the absence of strong legal arguments in attracting the court's attention to the suitability of death penalty in such psycho-socio-legal cases. It also lacks effort to bring the state machinery under accountability to provide reformist prison system. The legal fraternity should contribute in creating such an opportunity. At least it needs to establish a base for social dialogue. It, however, needs to be noted that the process of age determination in Bangladesh is seriously flawed and largely administrative in nature. We hope that all relevant considerations along with this aspect of the case will be debated in the apex court. 

The Oishee case is a question, not an answer. It's a wake-up call for the society constantly changing. Apart from that the case also got its meaning from our penal system, law and legal culture. It has posed a challenge for the judiciary to fashion a reasoned, balanced and reformist penal jurisprudence. Here, we recall Gabriel Mistral's oft-quoted saying: "We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait, the child cannot, right now is his time- his bones are being formed, his blood is being made and his senses are being developed. To him, we cannot answer 'tomorrow'. His name is 'Today'."

The writers are studying PhD at the VUW, New Zealand and teach law at the University of Chittagong, Bangladesh respectively.