Understanding postcolonial penal reform in Bangladesh: navigating challenges in fieldwork as a judge-researcher

My research involves a socio-legal analysis of postcolonial penal reform in Bangladesh. The key question I investigate is how and why its legal regime is systematically problematic. It reveals that upon decolonisation, successive regimes not only retained colonial special laws, but also introduced more severe laws and techniques in the name of curbing new forms of crime. My project seeks to advance academic debate by tracing the formal shape of laws through examination of their operation in a postcolonial context. Data sources used to answer this query include 17 interviews with key informants and court observations supplemented by an auto-ethnography.

I sought to gather insights from key informants including lawyers, judges, lawmakers, defendants, victims, legislative drafters, and politicians. While, I had the privilege of using my professional background to gain easier access to  judges and other participants, my new role as a researcher worked as a double-edged sword. Many elite participants viewed me as a troublemaker because most of them were not very familiar with empirical research on law and the judiciary. As I sent formal invitations for interviews, most of the participants declined on the basis that that they were not at all comfortable disclosing experiences of the political context of a volatile society.  It appeared to me that prospective participants were self-censoring. I was also concerned that I might face surveillance, personal safety concerns, ethical dilemma involving vulnerable participants, and governmental pressure to report my research in certain ways. These  challenges faced by  a native researcher revealed the sometimes topsy- turvy terrain of fieldwork.  Another dilemma was that most of the participants did not seem to be satisfied with my repeated assurance about voluntariness, confidentiality, and anonymity. As the interviews with some indomitable activist-lawyers continued, I approached a few prosecutors for interview. Some of them admonished me for undertaking this research instead of presiding as a judge when Bangladesh’s judiciary was grappling with a shortage of judges in view of 4.2 million pending cases!  They were frank that  disclosure of  bitter truths might put their career in jeopardy given that they were politically appointed on an ad hoc basis. As a few prosecutors retreated half-through way the interview, I did not include them in the list of formal interviewees. While  the prosecutors refused to be interviewed , I had more luck with other lawyers from a range of backgrounds. Human rights lawyers were the most accessible but  judges, draftsmen and other officials were often  taciturn in furnishing their perspectives. I was also heartened by the emotional narratives of some offenders and  victims alike who bore the brunt of the laws and processes most, although it was really difficult to record their interviews in the repressive and chaotic context.

Although there were some crude diamonds amongst these interviews, they suggested some richer data was below the surface. Therefore, I sought to contextualise my own recollections as a coherent method while incorporating them into my data. As a judge who rose from being a practitioner at district courts to the High Court, followed by ten years on the bench, my own experiences also became a source of data.  I had had the rare honour of witnessing the recent hindrances of the criminal justice system in general and postcolonial legal reform in particular. The dearth of data sources, paucity of reliable literature, and taciturn attitude of the participants compelled me to supplement the interview with my own reflections. My own experience of the legal landscape led me to ponder over the ways in which its lack of independence it generated injustices. In my auto-ethnographic inquiry, I used my-experience to fathom the multiple interplays of law and justice.

I spent a prolonged period of time in the field that continued to offer considerable challenges due to the lack of research culture in a postcolonial country. Apart from self-censored attitude of key informants, the atmosphere in courts and other government bodies was acutely bureaucratic and skeptical about disclosure of certain facts reserved within their domain. There was also a real risk in undertaking empirical work involving truths, biases, assumptions, ethos, and operations of some postcolonial laws in a volatile state. My ordeal in conducting fieldwork was further aggravated by chaotic civil and political unrest escalating in a state that could be at best characterised as a weaker democracy with a deeply flawed application of rule of law principles (World Justice Project, Rule of Law Index 2023). My experiences present a sui generis case of methodological barriers encountered in socio-legal contexts that posed formidable obstacles to a researcher. In other words, my initial romanticism of conducting the fieldwork as a carefree bird drifted me towards a volatile and tight-lipped environment that I had to strategically navigate with tenacity, discipline and resilience. In the end, what I managed to collect is: an eclectic complex of law, justice and society has emerged in a state that tends to move between the high ideals of the rule of law and oxymoronic rule by law.