A 48-hour strike by transport workers began at 6 am on Sunday. This strike was announced by the Bangladesh Road Transport Workers Federation (BRTWF). Their demand is primarily related to making some changes to the recently passed Road Transport Act-2018. One of the demands is to make all the offences bailable under the Road Transport Act-2018.
The question is whether it is possible to make all the offences bailable or not under the legal jurisprudence. The new law proposes trial under Section 302 of the Penal Code which provides death penalty for murder, if the accident is found to be a deliberate act to kill a person. This new law also indicates that in case of death by the reckless driving, the suspected offender will be given a maximum penalty of five years of imprisonment. As we know that the maximum punishment under section 302 of the Penal Code is the death penalty, while maximum punishment is life imprisonment under section 304, it is a matter of question that whether an offence could be bailable that contains capital punishment or life imprisonment.
Let us keep all the emotions apart and analyse the offences under the criminal jurisprudence. As jurisprudence says that "a person may be held responsible for some crimes if he did not do his best as a responsible man to avoid the consequence in question" (Salmond on Jurisprudence, 12th edition, p 367). This statement surely explains that a person may not have the intention to harm another, but if he could avoid the harm which he did not, then the person will be liable for some criminal activities. Coming to the point of reckless driving that relates to the jurisprudential statement mentioned above, "If he drives furiously down a crowded street, he may be fully conscious of the serious risk to which he exposes other persons. He may not intend to injure any of them, but he knowingly and intentionally exposes them to the danger. Yet if a fatal accident happens, he is liable, at the most, not for willful, but for negligent homicide" (Salmond on Jurisprudence, 12th edition, p 381). Under the penal law, negligent homicide is a criminal offence and a second-degree murder, and it is possible to impose such kind of liability for reckless driving.
The conditions of penal liability are sufficiently indicated by the Latin maxim "Actus non facit reum, nisi mens sit rea". This means a man is responsible, not for his acts in themselves, but for his acts coupled with the mens rea or guilty mind with which he does the offence. In many driving cases, intentional mens rea may be absent, but there is a different form of mens rea available in inadvertent negligence which Sir John Salmond explained in his book. He articulated that in case of inadvertent negligence, no particular state of mind is necessary to commit an offence. He thinks that intentional or reckless wrong is a kind of wrong where mens rea amounts to intention, purpose, design or at least foresight. Hence, in such wrong, defence like mistake operates to negative the existence of mens rea. Thus, a suspected offender cannot escape his criminal liability by showing that the offence was unintentional and a mistake.
As mentioned above that negligent homicide is a second-degree murder, the next question, therefore, would be whether it is possible to make this serious offence bailable or not. According to Wharton's Law Lexicon, 'bail' means "to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day at a certain place, which security is called bail because the person arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required in order that he may be safely protected from prison, to which if they have, if they fear his escape etc; the legal power to deliver him." In a single sentence, bail means a person will be free on condition that he will be present before the court when required. As reckless driving may cause culpable homicide which is a serious offence and the accused may face lifetime imprisonment, therefore, he may take an attempt to abscond to set himself free from criminal liability which is lifetime imprisonment. If so, then it is not possible to execute the punishment; hence, justice will be denied. Although, we can claim that granting 'no-bail' will curtail our liberty which is a constitutional right of us, but of course, we need to think of the security of the state. The right to interrogate the culprits is in the interest of the nation and it must take precedence over an individual's right to personal liberty. The idea of state security has come from two Latin maxims and they are salus pouli est suprema lex (the safety of the people is the supreme law) and salus republicae est superma lex (safety of the State is the supreme law). These two maxims elucidate that if anybody is harmful to the society or state then he may be detained with granting no bail. Taking the term 'harmful' into consideration, the state law may define the term 'seriousness of crime'. In a broader sense, the seriousness of crime can be measured in terms of: 1. grave threats posed to the upkeep of law and order; 2. the interests of the society in the matters of public safety; and 3. the non-disturbance of peace of the community at large.
From the above analysis, it may be confidently said that a reckless driver is not a safe person for the society, in fact, he is a threat to the peace of the community. He, therefore, may break the law and order situation again and again as we know that after granting bail, it would be difficult to trace him during the trial stages, if he absconds. Hence, it is not possible to make all the offences bailable, as demanded, under the legal jurisprudential practice.
In the circumstances, the Bangladesh Road Transport Workers Federation (BRTWF) needs to rethink about their demand and should respect the long practised legal principle.
Md Mustakimur Rahman is faculty member, Department of Law, Notre Dame University Bangladesh.
