A call for overhauling the probation system

Under the supervision of a probation officer, the probationers are often discharged on the conditions to perform social, and community works like planting trees, reading books, taking care of elderly parents and children, etc.

Three legislations govern our probation system, namely the Probation of Offenders Ordinance 1960 for offenders in general; the Children Act, 2013 for children; and the Special Privileges for Convicted Women Act, 2006 for women.

Under the 1960 Ordinance, when a court is of the opinion that, having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to do so, the court may instead of sentencing the person at once, make a probation order.

The High Court Division in Moti Matbar v State (2020) observed that the purpose of probation under section 5(2) of the 1960 Ordinance is to prevent repetition of the same offence or a commission of other offences by an offender and for rehabilitating her/him as an honest, industrious, and law-abiding citizen.

A probation requires a court order specifying the conditions for probation for which the court generally considers age, character, socio-economic background or physical or mental condition of the offender; and the nature of the offence or any justifying circumstances attending the commission of the offence. The court, in order to decide whether to grant probation, often relies upon a social inquiry report by a probation officer.

Probation officers supervise probationers during the whole probation period and report to the court as to the behaviour of the offender at the end of the probation. At present, there are only 44 posts of probation officers at district level. Social Welfare Officers at the district or upazila level perform the functions of a probation officer. Generally, probation officers of our country are involved with administrative works rather than administering probations.

Since probation requires continuous supervision from a probation officer, a proper administrative structure is need of the hour. The practice of imposing probation to adult offenders is in the rudimentary stage. Current practices of probation have been accurately described by Mr. Justice M Imman Ali of the Appellate Division of the Supreme Court of Bangladesh that, "[t]he use of [probation] by our trial Courts is very rare, possibly due to the punitive attitude of the learned Judges[, and this] appears to be prevalent across the country".

Probation is not seen as a popular or at least regularly researched topic in the academia. One of the very few is the 2013 research by BLAST which shows that probation for adult offenders was rarely available in practice. In 2009-10, only 261 persons including adults and children were granted probation across the country, while the figure fell to 43 in 2010-2011. On the other hand, in 2019 an EU analysis paper shows the probation population rate is higher than the prison population rate in European Union countries. The data manifests that probation is gaining rapid popularity among the EU countries.

The High Court Division, in Abdul Khaleque v Hazera Begum and another 58 DLR (HCD) 322 observed that, "the penal system of Bangladesh is essentially reformative in character as opposed to retributive. The 1960 Ordinance is a prime example of such a policy. If a sentence of probation is imposed for a period of time, it is likely to be more of a deterrent and will have a rehabilitating effect which will fulfil the intention of the legislature". The Court also indicated the need of the practice of probation services in Fahima Nasrin v Government of Bangladesh 61 DLR (HCD) 232.

The implementation of probation will not only relieve the pressure from our prisons but also let the offenders rehabilitate and reintegrate into the society. Hence, probations should be made compulsory. The 1960 Ordinance should be amended to make probation available on courts' own motion. A separate and dedicated Probation Office must be established with adequate manpower having proper qualifications and backgrounds.

The writer is an Advocate, Supreme Court of Bangladesh.