The Role of Police in Criminal Justic System

CHAPTER- ONE

INTRODUCTION

1.1 INTRODUCTION:

The right to fair trial1 is human rights, which has been accorded to all

the members of human family by international human rights law, as

well as municipal human rights law. This right is accrues from the

moment when a person is arrested. This right contains the notion of

equality before law and is designed to protect the individuals from the

arbitrary acts of the authority violating his/her right to personal liberty.

The right to a fair trial is a crucial guarantee in the ever increasing

society to create and maintain standers of human rights at the

international as well as national level2 set forth by the Universal

Declaration of Human Rights(UDHR) in 1948, the right to fair trial has

since than been further elaborated and recognized by several

international and regional human rights document, including

International Covenant on Civil and Political Rights (ICCPR of 1996)

and the European Convention for the protection of Human Rights and

Fundamental freedoms (ECHR of 1950)3. Bangladesh, as a welfare

democratic state ensure fair trial right to the accused persons through

various legislation e.g the Constitution of the Peoples’ Republic of

Bangladesh, the Code of Criminal Procedure of 1898 etc. Fair trial in

the admini9stration of justice is a burning issue around the world now-

a-days. Though to some extent Bangladeshi laws ensure fair trial is a

far cry. In the spite in changing context, research work should be made

on this topics. This is a study on the right of accused person to affair

1 The ‘right to a fair trial’ in criminal cases at law is ensured by articles 10 and 11 of the UDHR and art. 14 of the ICCPR.2 See David Harris, ‘The Right to Fair Trial in Criminal Proceedings as a Human Right, 16 in T’I &comp. L.Q.352(1967) http://www3.law.nyu.edu/journals/jalap/31/n/pads/3 http: 11www.legislationline.org/ tid= 1 & less=false

1

trial and a comparison between the standard of fair trial as assured by

international instruments as well as the municipal laws of Bangladesh.

1.2 STATEMENT OF PROBLEM:

The laws relating to fair trial of the accused persons of Bangladesh,

India and Pakistan are similar to a great extent. In the Constitution of

Bangladesh various provisions regarding the protection of human

rights have been incorporated under part (1) and (2) namely;

Fundamental Principal of State Policy and Fundamental Rights,

accordingly. The right to a fair trial of the accused person is one of the

fundamental rights, guaranteed by the constitution of Bangladesh. The

violation of this right, to some extent may be considered as crime.

This crime may be committed either by private individual or by law

enforcing agencies (LEA) like Police, Border Guard of Bangladesh

(BGB) and ANSAR. The number of crimes regarding trial by the LEA

is increasing enormously in recent years and these are threatening the

security of peoples’ life and property. Unfair exercise of third degree

method4 by police while questioning in the name of remand,

malpractice of sec 54 and 167 of the Code of Criminal Procedure,

1898, severely curtail the right of accused person under trial. In these

circumstances, it is necessary to find out the causes of violation of

right to fair trial of an accused person under various stages of criminal

trial.

Crime is an inevitable general feature of every society. A general

survey of the world situation makes it clear that rapid social changes

are giving rise to greater criminal activities which must be overcome

by the law and criminal justice system. The criminal law of every

country defines certain acts which it regards criminal and provides

sanction against the individuals who is responsible for the commission

of such acts. An individual who is charged with the commission of a

4 Third degree method means a method in which the police apply physical and/ or mental pressure upon the suspect to exact information of incriminatory nature while he/she is being interrogated.

2

crime is an accused. Every mature legal system of the world, be it the

American, British, Indian or Bangladeshi, regards the accused as

innocent until he is proved guilty beyond all reasonable doubts. The

protection of the right of the accused against the coercive powers of the

state is part of the human rights propaganda initiated by the United

Nations Organizations and expressed directly in part 3 of art 14(2) of

the International Covenant on Civil and Political Rights. This provides

that “Everyone charged with a criminal offence shall have the right to

be presumed innocent until proved guilty according to law”.

1.3 NECESSITY OF THE STUDY:

The principal objective of the study is to identify and show the

methods and modes in theory and in practice of the municipal legal

provision of fair trial of accused persons in Bangladesh, keeping pace

with international legal instruments.

Other objectives of the study are as follows:

1. To study on the general concept of fair trial.

2. To identify the slandered of fair trial under international

instruments.

3. To identify the standard of fair trial under municipal legal

provisions.

4. To make a comparison between the standard of fair trial

guaranteed by international instruments and the domestic laws

of Bangladesh.

5. To make a framework of fair trial of accused person in

Bangladesh.

3

1.4 METHODOLOGY OF THE STUDY:

This study will examine the laws, international and municipal, and

practices relating to the standard of fair trial of accused persons. In

order to give complete shape to this thesis, arrange of research methods

are used—

1. Review of international instruments of human rights of the

accused.

2. Examination of constitutional guarantees regarding the fair trial

right of the accused in Bangladesh.

3. Analysis of statutory laws and case laws relating to fair trial

right of the accused in Bangladesh and some other major legal

system, e.g U.K, USA, India and Pakistan.

1.5 DURATION OF THE STUDY:

The study will cover 1months from January to February 2011.

1.6 LIMITATATION OF STUDY:

The international standard of fair trial of accused person encompass a

wide range of elements out of which the scope of this study will be

related basically to two things namely, standard followed at the pre

trial and trial stage both in international and Bangladesh perspectives.

Some other post-trial rights will also be examined. While discussing

international aspect basically the UDHR, ICCPR AND ECHR shall

have emphasized. In making comparison between the international and

domestic perspectives instance of some countries like UK, USA, India

shall have relatively been focused.

4

1.7 CHAPTERIZATION OF THE STUDY:

The present study entitled “International Standard of Fair Trial of

Accused Person and its Implications in Bangladesh” mainly focused on

the right of the accused person to a fair trial. Discussing this topic the

study reflects the right of the accused persons during pre-trial, trial,

and post trial stages, which are guaranteed by the international

instruments as well as Bangladeshi municipal legal provisions. To

highlights the issues the whole research work has been divided into

four chapters. These are-

The first chapter is an introductory part of the study. The second

chapter deals about the general concept of fair trial. In the third chapter

fair trial right of the accused person, which is guaranteed by

international instruments are discussed. The fourth chapter deals about

the Bangladeshi laws relating to fair trial of the accused person and it

also makes a comparison between international instruments and

Bangladeshi laws a relating to the provisions of the right of fair trial.

The fifth chapter deals with general conclusions and recommendations.

1.8 CONCLUSION:

This study presents an evolution of the existing conditions, both

nationally and internationally, of the right to fair trial of an accused

person in the criminal justice administration. As discussed above

section of this chapter, the study concentrates on these human rights of

the accused basically in pre-trial and trial stages. Some post-trial rights

in international level are also discussed in chapter three. The final

chapter summarizes the major findings of the study and outlines

possible recommendation to strengthen the criminal justice in order to

establish human rights of the accused.

5

CHAPTER-TWO

GENERAL CONCEPT

2.1 INTRODUCTION:

At the present stage of civilization, it has been universally accepted as

human value that a person accused of any offence should not be

punished unless he has been given a fair trial and his guilt has been

proved in such trial. The right to an affair trial is a Human Rights law

designed to protect individual from the unlawful and arbitrary

curtailment or deprivation of other basic and freedoms, the most

prominent of which are the right of life and liberty of the person. The

notion of the fair trial, like all other concepts incorporating fairness or

reasonableness, cannot be explained in absolute terms. Fairness is a

relative concept and therefore fairness in criminal trial could be

measured only in relation to the gravity of the accusation, the time and

resources which the society can reasonably afford to spend, the quality

of available resources, the prevailing social values etc. However,

leaving aside the question of the degree of fairness in the criminal trial,

the basic essential attributes of fair trial can be identified and studied.

The right to fair trail is a crucial guarantee in the ever increasing

society to create and maintain standards for human rights at the

international as well as national level5. The major attributes of fair

criminal trial are enshrined in Article 10 and 11 of the Universal

Declaration of Human Rights (UDHR). Set forth by the UDHR in

1948, the right to fair trial has since then been further elaborate and

recognized by several international and regional human rights

documents. This chapter focuses on the general concept of fair trial,

including meaning and definition, historical back ground of the idea,

5See David Harris, ‘The Right to Fair Trial in Criminal Proceedings as a Human Right, 16 in T’I &comp. L.Q.352(1967) http://www3.law.nyu.edu/journals/jalap/31/n/pdf/31n/pdf

6

concept of the fairness, beginning of the right to fair trial, general

impediments and requirements, aims of fair trial and basic fair trial

criteria. It also shortly speaks about the concept of “accused person”. It

should be remembered that, here trial concept mainly followed while

criminal hearing. This chapter is written after taking guidance from

some books journal and articles.

2.2 GENERAL CONCEPT OF FAIR TRIAL:

The right to fair trial is an ancient one are and is anonymous with the

trial process itself. It would be nonsense to speak of the permissibility

of an unfair trial. After centuries of implementation in practice, the

right to fair trial, which was finally codified in the international human

rights instrument following world war (2), is now universally

recognized. The right to a fair trial is seen as an essential right in all

countries respecting the rule of law. A trial in these countries that is

deemed unfair will typically be restarted, or its verdict quashed.

The right to a fair trial in explicitly proclaimed in article(x) of the

Universal Declaration of Human Rights and article (6) of the European

Convention of Human Rights, as well as numerous other constitutions

and declarations throughout the world. In criminal proceedings the

International Covenant on Civil and Political Human Rights grants

basic fair trial rights for individuals and democratic system of

government which is an independent judiciary, guarantees a fair trial to

the accused persons.

The fundamental importance of this right is illustrated not only by the

extensive body of interpretation it has generated but, most recently, by

a proposal to include in the non-dirigible right provide for in article

4(2) of the ICCPR6. The right to a fair trial is applicable to both the

6 See draft third optional protocol of the ICCPR, aiming of guaranteeing under all circumstances the right of a fair trial and a remedy, annex I, in: “the administration of justice

7

determination of an individual’s right and duties in a suit at law and

with respect to the determination of any criminal charge against him or

her. The term suit at law refers to various types’ court proceedings-

including administrative proceedings, for example- because the

concept of a suit at law has been interpreted as hinging on the nature of

the right involved rather then the status of one of the parties7.

For the purpose of this study only proceedings involving criminal

charge will be considered, more precisely, the right of accused person

during criminal trial.

2.3 MEANING AND DEFINITION OF FAIR TRIAL:

The word ‘trial’ has no fixed meaning. It has also not been defined in

the Code of Criminal Procedure 1898. In general trial means the entire

proceedings before a court or tribunal which commence when a case in

called on, with the judge or magistrate on the Bench. It is a judicial

proceeding which ends either in conviction or acquittal. When an

adjective word ‘fair’ is added before the word ‘trail’, then it means that

trial will be just, right and impartial. Fairness and impartiality are

considered as pre-requisites for a fair trial8. To establish role of law in

the society trial must be fair and it must be administered properly i.e.

free from arbitrary, influence, interference, inducements, pressures,

threats or biasness from any quarter within or outside the state. The

term fair trial may be utilized in a variety of contexts. Moreover it has

different connotations in different purposes. The provision of a ‘fair

and the human rights of defines, the right to a fair trial: current recognition and measures necessary for its strong strengthening,” final report, commission on human right, sub-commission on prevention of discrimination and protection of minorities, 46th session, E/CN.4/sub.2/1994/24,june 3,1994/[herein after report] at 59-62.7 See Dominic Megoddrick, the Human Rights Committee, its role in the development of the ICCPR at 415.8 Shajeda Akter, The Right to a Fair Trial under International Human Rights Instruments: A Bangladesh Perspective; The Chittagong University Journal of Law, vol.x, 2005, p 19

8

trial’ is equated with the concept of due process; a trial is fair if it

satisfies the substantive and procedural requirements of due process.

As pointed out by Justice Cruz9, it is accepted that both substantive and

procedural due process has established meanings. The substantive due

process requires the intrinsic validity of the law in interfering with the

rights of person to his/her life, liberty or property. Justice Cruz

enumerates the following requirements an imperative to ensure

procedural due process which collectively establishes the foundation of

a fair trial:

There must be an impartial court or tribunal clothed with

judicial power to hear and determine the matter before it;

Jurisdiction must be lawfully acquired over the defendant.

The defendant must be given the opportunity to be heard.

Judgment must be based upon a lawful and legitimate hearing

of the case.

In administrative proceedings, the following further elements of

procedural due process must be guaranteed without exceptions:

The right to a hearing, which includes the right to present one’s

case and submit evidence in support thereof;

The tribunal must consider the evidence presented;

The decision must be supported;

The evidence must be substantive;

9 Isagari A. Curz, Constitutional law (1959). The Philippines, 101.

9

The decision must based upon the evidence presented at the

hearing, or at least recorded and disclosed to the parties

affected.

The tribunal or body or any of its judges must act of its own or

his own independent consideration of the law and facts of the

case and not simply accept or disregard the views of a

subordinate in arriving at a decision;

The tribunal must present its decision to all controversial

questions in such a manner that the parties to the proceedings

can understand the various issues involve, and the reason for

the decision.

These standards provide a set of human standards at micro level for

fairness of justice. Judiciary has to administer justice in accordance

with law, but the law must be one that commands legitimacy with the

people10.

Before examining the status of fair trial rights under international law

and municipal laws of Bangladesh, it is important to define the concept

of fairness. To be fair as to be just and equitable11. What fairness does

not require is perfection. Indeed, perfection is something more for the

province of gods, than for us human beings. As lord Diplock said in his

elaborated dictum, “the fundamental human right is not to legal system

that is infallible, but to one that is fair.”12 This principle has been

confirmed time and again at the ICTY, for example by the legendary

Judge Shabuddeen, who stated in a separate opinion in the trial of

Slobodan Milosevic that,- “the fairness of a trial of a trial need not

10 Yubaraj Sagroula, turning human rights into touchstones of civilized social orders in the content of Nepal. Human rights and Globalization. December, 2003, published by executive director, empowerment through law of the common people, 333/1 (new 8/1) segunbagicha, Dhaka- 1000, Bangladesh. Pp. 75-7b.11 Concise Oxford Dictionary, p.510 (10th ed.)12 Maharaja Vs. Attorney General of Trinidad and Tobago Privy Council, (1979) AZ 385; (1978)2 AER 670; (1978) WLR 902.

10

required perfection in every detail. The essential question is whether

the accused has had a fair chance of dealing with the allegations

against him.”13

2.4 HISTORICAL BACKGROUND:

The roots of the basic principal of the right may be many difficulties

placed in the course of applying an ‘interest of justice’ test in various

situations, so that trial is not perfect one, such as the need to protect

victims and witness, but the absence of perfection does not mean that

the trial will not be a fair one. However, the interests of justice can not

be served where the accused is in denied a fair trial.’

To a fair trial can be traced all the way back to the ‘Lex Duodecim

Tabularum’- the law the Twelve Tables-which was the first written

code of the laws in the Roman Republic around 455 B.C.14, contained

within these laws was the right to have all parties present at a hearing,15

the principle of equality among citizen,16 and the prohibition against

bribery for judicial officials17. These principles can all be found in

modern jurisprudence and are essential to the conduct of a fair trial. In

moderns time, they refer to the right to be heard and to defend oneself,

the right to be subject to the rule of law, and the right to have one’s

case adjudicated by an independent and impartial tribunal.

Another important historical event in the development of the right to a

fair trial is the Magna Carta. In forcing King John to sign the Magna

Carta Libertatum in 1215, the English nobles ratified the principle that

even a king’s will could be circumscribed by law.18 In doing so, the

Magna Carta paved the way for later developments during the age of 13 Prosecutor vs. Slobodan Milosevic14 The first ten tables were published around 455B.C., with the last two around 499B.C.15 Table 2, law 116 Table9, law 117 Table 9, law 318 AnnLyon, Constitutional History of the United Kingdom 39 (Cavendish publishing 2003)

11

Enlightenment that would seek to subject govt. to the will of the

people.19

The Magna Carta proclaimed that:

‘No freeman shall taken, or imprisoned, or desseized, or outlawed, or

exiled, or in any way harmed-nor will we go upon or send upon him-

save by the lawful judgment of his peers or by the law of the land’.20

Another important historical reference to right to a fair trial is

contained in the Treaty of Arbroath of 1320. This was a declaration of

Scottish Independence sent by 51 Scottish nobles and magistrates as

evidence of a contract between Robert the Bruce and his subjects. This

declaration helped to article the notion of equality for all21, a principle

that was later replicated in other developing democracies, such as

France and the twelve American Colonies of the British Empire.

Historians have linked the United States Declaration of Independence

to the Treaty of arbroath.22

Francois- Marie Arouet, one of the leading civil liberties authors of the

Enlightenment period- who is better known by his pseudonym

‘Voltaire’- said, ‘we look to Scotland for all our ideas of civilization’.23

In modern jurisprudence, the notion of equality for all citizens in terms

of fair trial rights has been interpreted to mean both the general

prohibition of discrimination and the promise of equality between the

parties.24

19 Samuel Walker, Civil Liberties in America: a reference handbook147(ABC- CLIO, Inc. 2004)20 Magna Carta, 39, available at http://www.britannia.com/history/docs/magna2.html.access to 10.2.201021 Rosalined Mitchison, Ahistory of Scotland 38-55, (3rd ed.2002) 197022 See generally Linda Macdonald- Lewis, warriors and wordsmiths of freedom: the birth and growth of democracy (Luath press limited, 2009).23 Voltaire, cited in jose manuel barroso, address at the enlightenment lecture series, Edinburgh University (November 28, 2006), available at http://www.euun.europa.eu/artoc;es/fr/article-6525-fr.htm 24 See Stefan Trechsel, Human Rights in Criminal Proceedings, 94-95 (Oxford University press 2005).

12

Another important historical event was the French Revolution. Article

6 through 9 of the French Declaration of the Rights of Men, adopted

in1789, require a presumption of innocence and prohibit detention

unless determined by law. These articles have been constructing as the

basis for fair trial rights French’s subsequent Constitutions. As soon as

the French Declaration was introduced, the middle age ended the

modern age stepped onward because in the declaration it is proclaimed,

‘the end of divine, heroic and feudal times’.25The rights to a fair trial an

modern ages proclaimed by modern human rights instruments are

elaborately discussed in the third chapter.

2.5 BASIC FAIR TRIAL CRITERIA:

The standard against which a trial is to be assessed in terns of fairness

are numerous, complex, and constantly evolving. They may constitute

binding obligations that are included in human rights treaties to which

the state is a party.

But, they may also be found in documents which, though not formally

binding, can be taken to express the direction in which the law is

evolving. In order to avoid possible challenges to the legal nature of

the standards employed in vaulting the fairness of a trial, monitors

refer to norms of undisputedly legal origin. This are-

1. The laws of the country in which the trial is being held;

2. The human rights treaties to which that country is a party, and

3. Norms of customary international law.26

2.6 MEANING OF THE TERM ACCUSED PERSON:

25 Dr. Reba Mondol and Dr. Md. Shajahan Mondol, Quoting Dr. M. Ershadul Bari, Manobadhikar Ain Shangbidhan Islam NGO, Shams Publications, Dhaka, 2nd ed. (2009), p-11.26 The provisions of the UDHR are for the most part considered declarative of customary international law and may be of paramount importance if a state has not ratified or acceded to the ICCPR, the convention against tortury and other cruel, inhuman or degrading treatment or punishment, or any regional human rights instrument. The most directly relevant articles of the UDHR are 5,9,10 and 11.

13

The Code of criminal procedure of 1898(Act no.v of 1898) does not

contain any definition of the terms accused and accused a person. The

term accused denotes the person against whom a complaint is given to

a court that he has committed and offence. Hence, a person who is

proceeded against in a criminal court for payment of or enforcing

payment of maintenance is not an accused’.27 A person against whom

an inquiry is conducted cannot strictly be called and ‘accused’ whether

be inquiry be under the security section or in an official or

development inquiry. It would be very dangerous to hold that a person

against whom ‘quasi- civil proceedings’ are being taken under the

Code of Criminal Procedure, are accused person and may make false

statement, on oath, without being liable to punishment.28

The word ‘accused’ or ‘accused person’ is used only in a generic sense

in sec 167(1) and (2), Cr.PC. denoting the ‘person’ whose liberty is

actually restrained on his arrest by a competent authority on well

founded information or formal accusation or indictment. Therefore, the

word ‘accused’ limited to the scope of section 167(1) and (2)

particularly in the light of explanation to section 273, Cr.PC includes

any person arrested29.

The expression ‘accused person’ and the expression ‘a person accused

of any offence’ have the same cannot connotation and describe the

person against whom evidence is sought to be led in criminal

proceedings. The adjective clause ‘accused of any offence is, therefore,

descriptive of the person against whom a confessional statement made

by him is declared not probable and does not predicate a condition of

that person at the time of making the statement for the applicability of

the ban.

2.7 CONCLUSION

27 K.J. Aiyar, Judicial Dictionary.(13th edition), Butterworth’s India, New Delhi(2001).28 Mohan lal V.CEO, AIR 1962 MP17 at18, I crlj411.29 Directorate of Enforcement v Deepak Mahjan AIR 1994 DE1775.

14

This study presents and evaluation of the existing conditions of the

right to a fair trial of an accused person in Bangladesh keeping pace

with the laws relating to the right to a fair trial of an accused person

under international instruments. This study basically concentrates on

the human rights (fair trial rights) of the accused in pre-trial and trial

stages.

The final chapter summarizes the major findings of the study and

outlines the possible recommendations to strengthen the criminal

justice in order to established human rights of the accused.

15

CHAPTER – THREE

RIGHT TO A FAIR TRIAL OF AN ACCUSED

PERSONUNDER INTERNATIONAL LAW

3.1 INTRODUCTION:

Robert H. Jackson chief counsel for the prosecution in the Nuremberg

Trials, recognized the need for a fair trial in his opening statement of

November 20 of 1945, stating-

‘Before I discus the particulars of evidence, some general

consideration which may affect the credit of this trial in the eye of the

world should be candidly faced. There is a dramatic disparity between

the circumstance of the accusers and the accused that might discredit

our work if we should falter in ever minor matters, in being fair and

temperate……….

We must never forget the record on which we judge these defendants is

the record on which history will judge us tomorrow……… we must

such detachment and intellectual integrity to our task that this trial will

commend itself to posterity as fulfilling humanity’s aspiration to do

justice.’30

This statement recognized the importance of a trial, highlights the

particular obligation of an international tribunal to provide fair trial,

and underlines the rule of a fair trial in the world’s perception and

judgment of a court. A fair trial is important at both the national and

international level. International human rights and humanitarian

conventions are committed to providing and expensive view of rights

and to extending the rights of individuals so that national govt. will

follow their example.

30 Amnesty International, the International Criminal Court, Making the right to choices part 2, Report, IOR, 40/11/97 (http; //www. org. ailib/aipub/1997/IOR/14001197. htm.) access to 20.2.2010

16

Article 18 of the American Declaration of the Rights and Duties of

Man, adopted in May 1948, entrenches the right to a fair trial.31 It is

now well known that this Declaration predates the UDHR. In fact, this

is often overlooked. The Universal Declaration of Human Rights,

which was adopted by the United Nations General Assembly in

December 1948,32 provides in article 10 the right to a fair trial.

Later on, article 6 of the European Convention for the Protection of

Human Rights and Fundamental Freedoms, adopted in 1950, entitles

an accused to a fair and public hearing within a reasonable time period,

to promote information on the trial in a language which he

understands, etc.

In 1966, the International Covenant on Civil and Political Rights was

adopted. It entered in to force in 1976 and thus far has been ratified by

164 States. Article 14 of the Covenant affords the full panoply of

minimum rights to a criminally accused person.

The United Nations Human Rights Committee has been interpreting

and clarifying the scope of the convention for several decades now.33

Later on, article 8 of the American Convention on Human Rights,

adopted in 1969, provides the full spectrum of rights to a criminally

accused person, comparable to the European Convention. Finally, the

African Charter on Human and people’s Rights, adopted by the

organization of African Unity in 1981, also codifies the right to fair

trial. Article 7 contains many of the rights included in other human

rights instruments, such as the right to an appeal, the presumption of

31 American Declaration of the rights and duties of man, 30 may 2,1948, reprinted in handbook of existing rules pertaining to human rights, OEA/ ser.L/V/11.23 Doc 21 Rev 6,at 5 (1979)32 The universal declaration of human rights, Dec.10,1948, G.A Res. 217A(111),UN Doc. A/810.33 Wolf V. Panama, Communication No. 289/1988,UN Doc. ccpr/ c/44/D289/1988 (1992)(the accused refused attendance to relevant proceedings); Thomas V. Jamaica, communication No.272/1998,UN.Doc. ccpr/ c/44/D289/1988 (1992)(the accused was not informed of his appeal date Until after in had taken place.)Ibrahim Ali Badawi El-sheikh, Preliminary Remarkes on the Right to a Fair Trial Under the African Charter on Human and Peoples Rights, in the right to a fair trial 328-29 (David Weissbrodt and Rudiger Wolgfram eds.,1997).

17

innocence, and right to be tried within a reasonable time period by an

impartial court or tribunal.

In this chapter we will discuss abut the international slandered of fair

trial. As stated by the modern Human Rights instruments, specially, the

Universal Declaration of Human Rights(UDHR), and the European

Covenant on Civil and Political Rights(ICCPR), and the European

Convention for the Protection of Human Rights and Fundamental

Freedoms (ECHR). This chapter also speaks about the practices of fair

trial in the International Criminal Tribunal for the former Yugoslavia

(ICTY) and focus the fair trial mechanism under the Rome Statute of

the International Criminal Court.

3.2 MODERN HUMAN RIGHTS AND OTHER

INTERNATIONAL INSTRUMENTS

RELATING TO FAIR TRIAL:

In the second chapter (General Concept) we have discussed abut the

‘early references to the right to affair trial’. In this research work, main

focus of the proposal is shifted on modern human rights and other

international instruments relating the right of fair trial.

The American Declaration of the Rights and Duties of Man, adopted in

May 194834, predates the Universal Declaration of Human Rights. This

American Declaration by its article 18 entrenches the right to affair

trial. In 1948, the right to a fair trial was affirmed as a basic human

right by the UDHR, by its article 10. Later on the International

Covenant on Civil and Political Rights (ICCPR) by its articles 9, 14

and 15, reaffirmed the same right, in 1966.

34 ibid

18

General standard of fair trial are also enumerated in a number of

international instruments including—

1. The African Charter on Human and Political Right,

1981(herein after

called as Banjul Charter) Arts 3, 6and 7;

2. Protocol Additional to the Geneva Conventions of

12 August 1949,

and Relating to the Protection of Victims of

International Armed

Conflicts(Additional Protocol 1), Art75

3. Protocol Additional to the Geneva Conventions of

12 August 1949, and Relating to the Protection of

Victims of Non-International Armed

Conflicts(Additional Protocol 11), Art6;

4. American Convention on Human Rights (ACHR),

Arts 7, 8, and 9.

5. European Convention for the Protection of Human

Rights and Fundamental Freedoms (ECHR), Arts5,

6 and 7.

6. Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in Armed

Forces in the Field, Art 3;

7. Geneva Convention for the Amelioration of the

Condition of the Wounded, Sick and Shipwrecked

Members of Armed Forces at Sea, Art 3.

19

The standards against which a trial is to assessed in terms of fairness

may also be found in documents which, though not formally binding,

can be taken to express the direction in which the law is evolving.

Non-binding documents of relevance to the conduct of criminal

proceedings and to ascertaining fair trial standards include:

1. The Basic Principles for the Treatment of Prisoners

(Basic Principles on Prisoners)35

2. Standard Minimum Rules for the Treatment of

Prisoners (Standards Minimum Rules)36

3. Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment

(Body of Principles)37

4. Basic Principles on the Rule of Lawyers (Basic

Principles on Lawyers)38

5. Basic Principles on the Independence of the

Judiciary (Basic Principles on the Judiciary)39

6. UN Standard Minimum Rules for the

Administration of Juvenile Justice.40

7. Guidelines on the Rule of Prosecutors.41

35 UN General Assembly Resolution 45/111, December 14, 199036 UN Economic and Social Council Resolution 663, c(24), July 31, 1957 and Resolution 207, May 13, 1997.37 UN General Assembly Resolution 43/173, December9, 1998.38 Adopted by the Eight Un Congress on the Prevention of Crime and the Treatment of offenders, Havana, Cuba, August 27-Sept 7, 199039UN General Assembly Resolution 40/32, Nov. 29, 1985 and Resolution 40/146, December 13 1985.40 UN General Assembly Resolution 40/33, Nov. 29, 198541 Adopted by the Eight UN Congress on the Prevention of Crime and the Treatment of offenders, Havana, Cuba, August 27-Sep. 7, 1990.

20

8. Principles on the Effective Prevention and

Investigation of Extralegal and summary

Executions.42

9. Basic Principles on the Use of Force and Firearms

by Law Enforcing Officials.43

10. UN Rules for the Protection of Juveniles Deprived

of Their Liberty.44

11. Code of Conduct for Law Enforcement Officials.45

3.3 RIGHT TO A FAIR TRIAL OF AN ACCUSED

PERSON UNDER INTERNATIONAL HUMAN

RIGHTS INSTRUMENTS:

International Criminal Justice standards, including principally the

right to a fair trial have been defined and guaranteed by no less than

twenty global and regional human rights treaties and other instruments.

The most important are--

(1) The Universal Declaration of Human Rights;

(2) The International Covenant on Civil and Political

Rights;

(2) The International Convention on the Elimination

of All Forms of Racial Discrimination;

42UN Economic and Social Council Recommendation Resolution 1989/65, 24, 198943 Adopted by the Eight UN Congress on the Prevention of Crime and the Treatment of offenders, Havana, Cuba, August 27-Sep. 7, 1990.44 UN General Assembly Resolution 40/113, December 14,1990.45 UN General Assembly Resolution 34/169, December 17, 1979.

21

(4) The Convention on the Rights of the Child;

International humanitarian law, codified in the four Geneva

Convention and two Additional Protocols, ensures the right to a fair

trial and related criminal justice standards during periods of internal

and international armed conflicts. There are several other treaty and

non treaty standards relating to the role of judges, prosecutors and

lawyers; the protection of detainees/prisoners, juvenile offenders,

persons facing the death penalty; and providing safeguards against

disappearances and torture.

Regional treaties such as the African Charter on Human and Peoples

Right46, the Inter-American Convention on Human Rights47, and the

European Convention for the Protection of Human Rights and

Fundamental Freedoms contain fair trial guarantees and other

provisions relevant to criminal justice. The most visible and recent

elaboration of the right to a fair trial has been in the context of the

adhoc tribunals for the permanent International Criminal Court48.

Now we will discuss the standards of fair trial in criminal case,

especially the right of an accused person, as stated by these

international instruments, under the following sub-heads.

46 Adopted June 27, 1981, entered into force October 21, 198647 Adopted Nov. 22, 196948 Adopted Nov. 5, 1950

22

3.2.1.1 FAIR TRIAL RIGHT UNDER UNIVERSAL

DECLARATION OF HUMAN RIGHTS:

In 1948 the U.N General Assembly adopted Universal Declaration of

Human Rights (UDHR), which provides a world wide definition of the

human rights obligations undertaken by all U.N member states

pursuant to Article 55 and 56 of U.N Charter, including several

provisions relating to administration of justice. ‘Fair trial rights’ of an

accused person are described in art 10 of the UDHR. Article 10 of the

UDHR states,- ‘Everyone is entitled in full equality to a fair and public

hearing by an independent tribunal, in the determination of his rights

and obligation of his rights and obligations and of any criminal charges

against him’.

Article 11provides for (1) the presumption of innocence, (2) Public

trial, (3) All guarantees necessary for (one’s) defense, and (4) the right

to be free from retroactive punishment or penalties.

Other provisions of the UDHR- for example, (1) as to arbitrary arrest

(2) the right to an effective remedy (3) the right to be free from torture

(4) the right to security of person and (5) Privacy are relevant to

Criminal Justice system and the fairness of the trial process.49

3.2.1.2 FAIR TRIAL RIGHT UNDER

INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS:

Following the adoption of the Universal Declaration the U.N

Commission on Human Rights50 drafted the international Bill of

Human Rights, which includes the International Covenant on Civil and

Political Rights. The civil and political Covenant entered into force 23

49 International Criminal Justice Standards- available at (http:// law.jrank.org/pages/1391/International-Criminal-Justice-Standards.htm#ix22oecinRq65).50 ibid

23

March 197651 as a multilateral treaty and establishes an international

minimum standard of conduct for all participating governments. The

Civil and Political Covenant further elaborates particularly in its art.14

and 15 but also in art 2, 6, 7, 9 and10 upon the Criminal Justice

standards identified in the Universal Declaration. Article 14 of the

Civil and Political Covenant recognizes the right in all proceedings to

‘a fair trial and public hearing by a competent, independent and

impartial tribunal established by law’. Every person is equal before the

Courts and tribunals under article 14(1). Article 14 also distinguishes

between the sort of fair hearing required for civil cases, on the one

hand, and Criminal Cases, on the other, Article 14(3) deals with the

‘minimum guarantees’ required in the determination of any criminal

charge, the observance of which is not always sufficient to ensure the

fairness of a hearing.

Some related law provisions

* Right to be free from torture or other cruel, inhuman and

degrading treatment (CAT, ICCPR article 7)

* Right to humane treatment in detention (ICCPR article 10)

* Right to be free from arbitrary detention (ICCPR article 9)

* Right to legal representation (ICCPR articles 9, 10 and 14)

Article 7 of the ICCPR

"No one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment. In particular, no one shall be

subjected without his free consent to medical or scientific

experimentation."

Article 10(1) of the ICCPR

51 It was establish by the ECOSOC on Feb. 15,1946, Under Art 68 of the U.N. But now it is replaced by the Human Rights Council.

24

"All persons deprived of their liberty shall be treated with

humanity and with respect for the inherent dignity of the human

person."

Article 9 of the ICCPR

"(1) Everyone has the right to liberty and security of person. No one

shall be subjected to arbitrary arrest or detention. No one shall be

deprived of his liberty except on such grounds and in accordance with

such procedures as are established by law.

…

(4) Anyone who is deprived of liberty … shall be entitled to take

proceedings before a court …"

Article 11 of the ICCPR

“No one shall be imprisoned merely on the ground of inability to

fulfill a contractual obligation.”

3.2.1.3 FAIR TRIAL RIGHT UNDER AMERICAN

CONVENTION ON HUMAN RIGHTS:

The American Convention on Human Rights (American Convention)

entered into force on 18 July 1978, and as of 15 December 1999 had

been ratified by all twenty-four states in the Western Hemisphere.

Article 7 of the American Convention provides several criminal justice

guarantees, including, for example, the right to notice and to habeas

corpus.

Article 8 deals with the right to a fair trial in a detailed manner,

including the right to hearing, the presumption of innocence, the right

to a free translator and to counsel, the right of the accused not to be

compelled to be a witness against himself, the principal of ne bis in

25

idem52, that criminal proceedings be public. Article 9 guarantees

freedom from ex post facto laws. The Inter-American Commission on

Human Rights also considers the right to compensation for miscarriage

of justice as forming part of the right to fair trial under Article 10.

Article 25 of the Convention further guarantees the right to ‘simple and

prompt recourse, or any other effective recourse, to a competent court

or tribunal for protection against acts that violate his fundamental

rights recognized by the Constitution or laws of the state concerned or

by this convention by persons acting in the course of their official

duties.’

The Inter-American Commission on Human Rights has interpreted the

American Convention on Human Rights and the American Declaration

on the Rights and Duties of Man (1948) elaborating the rights

necessary for a fair trial. The Inter-American Court on Human Rights,

though its adjudicatory and advisory jurisdiction, has also examined

violations of human rights related to a fair trial, albeit in only a few

cases.53

3.2.1.4 FAIR TRIAL RIGHT UNDER EUROPEAN

CONVENTION ON HUMAN RIGHTS:

The Convention for the protection of Human Rights and Fundamental

Freedoms entered into force on 3 September 1953, and has been

ratified by all forty one member countries of the council of Europe.

Provisions of the European Convention on human Rights have enjoyed

a very high degree of compliance-both because many countries have

incorporated the Convention’s provisions into domestic law and

because the European Court and Commission judgments have almost

always been obeyed.

52 Means-‘not twice in the same’.53 http://law.jrank.org/pages/1386/Intenational-Criminal-Justice-Standards-American-Convention-on-Human-Rights.html#ix22oeeZnljXh.access to 23.02.2010

26

Article 6 -

(1) In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law. Judgement shall be pronounced publicly

by the press and public may be excluded from all or part of the trial in

the interest of morals, public order or national security in a democratic

society, where the interests of juveniles or the protection of the private

life of the parties so require, or the extent strictly necessary in the

opinion of the court in special circumstances where publicity would

prejudice the interests of justice.

(2) Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following

minimum rights:

(a) To be informed promptly, in a language which he understands and

in detail, of the nature and cause of the accusation against him;

(b) To have adequate time and the facilities for the preparation of his

defence;

(c) To defend himself in person or through legal assistance of his own

choosing or, if he has not sufficient means to pay for legal assistance,

to be given it free when the interests of justice so require;

(d) To examine or have examined witnesses against him and to obtain

the attendance and examination of witnesses on his behalf under the

same conditions as witnesses against him;

(e) To have the free assistance of an interpreter if he cannot understand

or speak the language used in court.

27

3.2.1.5 FAIR TRIAL RIGHT UNDER

INTERNATIONAL CRIMINAL COURT:

The Rome Statute provides that all persons are presumed innocent until

proven guilty beyond reasonable doubt, and establishes certain rights

of the accused and persons during investigations. These include the

right to be fully informed of the charges against him or her; the right to

have a lawyer appointed, free of charge; the right to a speedy trial; and

the right to examine the witnesses against him or her and to obtain the

attendance and examination of witnesses on his or her behalf.

Some argue that the protections offered by the ICC are insufficient.

According to one conservative think-tank, the Heritage Foundation,

“Americans who appear before the court would be denied such basic

constitutional rights as trial by a jury of one's peers, protection from

double jeopardy, and the right to confront one's accusers.” The Human

Rights Watch argues that the ICC standards are sufficient, saying, “the

ICC has one of the most extensive lists of due process guarantees ever

written”, including “presumption of innocence; right to counsel; right

to present evidence and to confront witnesses; right to remain silent;

right to be present at trial; right to have charges proved beyond a

reasonable doubt; and protection against double jeopardy”. According

to David Scheffer, who led the US delegation to the Rome Conference

(and who voted against adoption of the treaty), “when we were

negotiating the Rome treaty, we always kept very close tabs on, ‘Does

this meet U.S. constitutional tests, the formation of this court and the

due process rights that are accorded defendants?’ And we were very

confident at the end of Rome that those due process rights, in fact, are

protected, and that this treaty does meet a constitutional test.” Mr.

Scheffer's opinion on whether the treaty satisfies the requirements of

the U.S. Constitution is simply the opinion of a diplomat; no U.S. court

has opined on the issue leaving it open to dispute.

28

To ensure “equality of arms” between defense and prosecution teams,

the ICC has established an independent Office of Public Counsel for

the Defense (OPCD) to provide logistical support, advice and

information to defendants and their counsel. The OPCD also helps to

safeguard the rights of the accused during the initial stages of an

investigation. However, Thomas Lubanga's defense team say they have

been given a smaller budget than the Prosecutor and that evidence and

witness statements have been slow to arrive.

One of the great innovations of the Statute of the International

Criminal Court and its Rules of Procedure and Evidence is the series of

rights granted to victims. For the first time in the history of

international criminal justice, victims have the possibility under the

Statute to present their views and observations before the Court.

Participation before the Court may occur at various stages of

proceedings and may take different forms. Although it will be up to the

judges to give directions as to the timing and manner of participation.

Participation in the Court's proceedings will in most cases take place

through a legal representative and will be conducted”in a manner

which is not prejudicial or inconsistent with the rights of the accused

and a fair and impartial trial”.

The victim-based provisions within the Rome Statute provide victims

with the opportunity to have their voices heard and to obtain, where

appropriate, some form of reparation for their suffering. It is this

balance between retributive and restorative justice that will enable the

ICC, not only to bring criminals to justice but also to help the victims

themselves obtain justice.

Article 43(6) establishes a Victims and Witnesses Unit to provide

"protective measures and security arrangements, counseling and other

appropriate assistance for witnesses, victims who appear before the

Court, and others who are at risk on account of testimony given by

29

such witnesses. Article 68 sets out procedures for the "Protection of the

victims and witnesses and their participation in the proceedings. The

court has also established an Office of Public Counsel for Victims, to

provide support and assistance to victims and their legal

representatives. Article 79 of the Rome Statute establishes a Trust

Fund to make financial reparations to victims and their families.54

Summary of investigations and prosecutions by the International Criminal Court (as of March 2010)

Situation

Referral

(date)

Investigationopened

Individuals

indicted

Transferredto the ICC

Charges confirmed

Status

Northern Uganda

Government of Uganda(December 2003)

July 2004

Joseph   Kony

Fugitive

Vincent   Otti

Died in 2007 (?)

Raska   Lukwiya

Died

54 http://en.wikipedia.org/wiki/International_Criminal_Court

30

on 12 August 2006

Okot   O dhiambo

Fugitive

Dominic   Ongw en

Fugitive

Democratic Republic of the Congo (DRC)

Government of the DRC(March 2004)

June 2004

Thomas   Luba nga

17 March 2006

29 January 2007

In ICC custody, trial began on 26 Jan

31

uary 2009

Germain   Katan ga

17 October 2007

26 September 2008

In ICC custody, trial began on 24 November 2009[

10

3]

Mathieu   Ngud jolo   Ch ui

6 February 2008

Bosco   Ntaganda

Fugitive

Callixte A

32

Mbarushimana

rrested on 11 October 2010[

10

4], in ICC custody since 25 January 2011[

10

5]

Cent

Government of the CA

May 20

Jean-Pierre Bemba

3 July

15 J

In I

33

ral African Republic (CAR)

R(December 2004)

07 2008

une 2009

CC custody, trial began on 22 November 2010[

10

6]

Darfur, Sudan

UN Security Council(March 2005)

June 2005

Ahmed   Haroun

Fugitive

Ali   Kus hayb

Fugitive

Omar   a l-Bashir

Fugiti

34

ve

Bahr Idriss Abu Garda

Charges dismissed 8 February 2010[

10

7]

Abdallah Banda Abakaer Nourain

Appearing voluntarily

Saleh Mohammed Jerbo Jamus

Appeari

35

ng voluntarily

Republic of Kenya

Authorization by Pre-Trial Chamber(March 2010)

3.2.1.6 FAIR TRIAL RIGHT UNDER THE ROME

STATUTE OF INTERNATIONAL

CRIMINAL COURT:

Based upon the precedents of the Nuremberg Tribunal,55 the

International Military Tribunal for the Fair East,56 trials in Germany57,

the Yugoslav Tribunal established in 1993, and the Rwanda Tribunal

of 1994, a diplomatic conference in Rome adopted a statute of 17 July

1998 for a permanent International Criminal Court (ICC).

The Rome Statute provides for many of the rights of the accused

recognized by the international Community as necessary under major

human rights instruments, humanitarian or custody law as a basis of

fair trial. The Rome Statute enunciates a number of necessary

minimum guarantees including the following rights of the accused to

be applied with full equality-

55 Established by the Londen Agreement of 1945.56 Tokyo Tribunal, established in 1946.57 Under Control Council Law No. 10(1946).

36

a. Equality before law.58

b. Speedy Trial.59

c. To be present at trial.60

d. Adequate preparation of defence.61

e. Defence through legal Counsel.62

f. To examine the witnesses.63

g. To have the Assistance of an

Interpreter.64

h. Fair and public hearing.65

i. Prohibition on self-incrimination.66

j. Prohibition of retroactive

application of criminal law.67

k. Presumption of innocence.68

l. Written Statement.69

3.2.1.7 FAIR TRIAL RIGHTS UNDER

INTERNATIONAL HUMANITARIAN LAW:

58 Art. 67 of the Rome Statute.59 Art. 67(1)(c),ibid.60 Art. 67(1)(d),ibid.61 Art. 67(1)(b),ibid.62 Art. 67(1)(d),ibid.63 Art. 67(1)(f),ibid.64 Art. 67(1),ibid.65 Art. 67(1)(g),ibid.66 Art. 24(1),ibid.67 Art. 67(1),ibid.68 Art. 67(1)(f),ibid.69 Art. 67(1)(h),ibid.

37

Common Article 3 of the four Geneva Conventions for the protection

of victims of armed conflict70 and Article 6 of the Additional Protocol

1171 contain fair trial guarantees and other provisions relevant to the

administration of justice for times of non international armed conflict.

For example, common Article 3(d) prohibits the ‘passing of sentences

and carrying out of executions without previous judgment pronounced

by a regularly Constituted court………….’ Article 96 and 99-108 of

the Third Geneva Convention 72 prescribe the rights of prisoners of war

in judicial proceedings, essentially creating a fair trial standard. Article

56, 64-67 and 117-126 of the Fourth Geneva Convention contain

provisions relating to the right to a fair trial in occupied territories.

Article 75 of Additional Protocol-173extends fair trial guarantees in an

international armed conflict to all persons, including those arrested for

action relating to the conflict.

3.3 CONCLUSION:

In conclusion, we have seen that the right to a fair trial is something to

which every person is entitled. The history of this right and the practice

of courts show that the right to a fair trial has acquired Universal

recognition and acceptance. Not only has it been integrated into the

legal systems of most countries, but it has been codified in treaties and

conventions. It is today a well-established rule of customary

international law, and in the view of many, has the status of pre-

emptory norm of general international law. Judges must remain

vigilant in the pursuit of justice and fairness. Our reach for perfect

trials must always exceed our grasp. So that the men and women

accused before us at all times are afforded the full extent of the

protection of the law.

70 Entered into force on 21 October 1950, ratified by 188 countries as of 1 November 2000.71 Protocol additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts(Additional Protocol 11)72 Convention Relative to the Treatment of Prisoners of war, 12 August 1949.73 Protocol additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts(Additional Protocol-1).

38

CHAPTER – FOUR

RIGHT TO A FAIR TRIAL OF AN ACCUSED

PERSON UNDER MUNICIPAL LAWS OF

BANGLADESH

4.1 INTRODUCTION:

An effective administration of justice requires just, equal and fair trial.

It has been accepted now that the right to fair trial is one of the basic

human rights. The rule of law must be established to ensure and reach

the justice to the common people of the world. Freedom, justice and

peace are the element of rule of law. It is universally well recognized

that there is no peace without justice, there is no justice without

freedom and there is no freedom without human rights. International

community is endeavoring to promote freedom, justice and peace for

ensuring human rights. In the past few years, many International

Human Rights Instruments have been adopted and a significant

number of substantive laws have been made to protect the individuals

from any arbitrary, capricious and coercive powers of the state, such

as, the UDHR, ICCPR and so forth. Despite the approved and

ratification of many of these International Human Rights Instruments,

in protecting human rights Bangladesh’s real picture is somewhat

different. The protection of human rights is gradually being improved

in the administration of criminal justice system of Bangladesh. The

object of this chapter is to focus on the right to a fair trial of an accused

person in the criminal justice system of Bangladesh in the light of the

international human rights law. We intend to give emphasis in this

chapter mainly on right to a fair trial of an accused person at pre-trial

and trial stages.

39

4.2 CRIMINAL LEGISLATION OF

BANGLADESH:

The criminal legislation of Bangladesh has a British colonial legacy,

which at the outset of it was suppressive and exploitative in nature, and

it does not suit presently in a country of democratic value. In our

country we execute the criminal legislation through an institution

called police authority. The criminal legislation confers on the police

or investigating authority wide power in confiscating, investigation,

inquiry and trial. Though it is said to be discretionary power there are

limits within which they are to act. The criminal legislation of

Bangladesh determines that the state machinery should involve the

criminal process against offenders and also prescribes for securing a

reasonable investigation, search and seizure. There are specific

provisions regarding these, but some wrongs are being practiced in

applying in applying these, every now and then. The laws Enforcing

Agency, like police in Bangladesh are placed in a position of great

strain in that they are given a mandate of promoting social order, at the

same time they should be circumscribed by variety of restrain as

because governmental philosophy has transmitted from laissez to

welfare. So those provisions should be noticed meticulously by the

police in practice.74

4.3 PROVISIONS ON RIGHT TO A FAIR TRIAL

UNDER THE CONSTITUTION OF

BANGLADESH:

The rights enunciated by various articles of UDHR, ICCPR and other

International Human Rights Instruments mentioned in the second

chapter can be defined as basic elements of or minimum standards for

a trial. A fair trial is not possible without unrestricted access to these

74 Dr. M Abdul Hannan, Right to Reasonable Investigation Process in Criminal Justice in Bangladesh; R.U Law Journal 2007, vol. 04.pp 37, 38.

40

rights or maintaining these standards.75 The Constitution of Bangladesh

enshrines these rights in the following provisions and establishes as a

fundamental right in pursuance of criminal justice:

No person shall be deprived of life or personal liberty saves in

accordance with law.76

No person who is arrested shall be detained in custody without

being informed, as soon as, may not be, of the grounds for such

arrest, nor shall he be detained the right to consult and be

defendant by a legal practitioner of his choice.

Every person who is arrested and detained in custody shall be

produced before the nearest magistrate within a period of twenty-

four hours of such arrest, excluding the time necessary for the

journey from the place of arrest to the court of the magistrate and

no such person shall be detained in custody beyond the said

period without the authority of a magistrate.

No person shall be subjected to torture or cruel, inhuman or

degrading punishment or treatment.

No person accused of an offence shall be compelled to be a

witness against himself.

Every person accused of a criminal offence shall have the right to

a speedy and public trial by any independent and impartial court

or tribunal established by law.

75 Yubaraj Sangroula, op.cit.p-7776 The Constitution of Bangladesh, 1972; Article 32.

41

4.4 ENFORCEMENT AND OBSERVANCE OF

THE LEGAL PROVISIONS FOR A FAIR

TRIAL IN BANGLADESH:

It is evident that fair trial can be ensured if state’s machinery fulfils

minimum standards of legal provisions inserted for fair trial in the

international and national sphere. A person might be suspected or

accused of having committed a crime, yet the administration of

criminal justice system would not punish him until and unless a

competent court adjudges him guilty. This is based on the principle of

that,’ justice should not only be done but must also be seen to have

been done.’ The most important human rights provision is set forth in

our constitution as a fundamental right in article 32; which provides

‘No person shall be deprived of life or personal liberty saves in

accordance with law.’ This article also gives protection against

arbitrary executive and legislative action. It is important to mention

one of the cardinal principle of natural justice here that ‘audi alterm

partem’. i.e., ‘No one should be condemned unheard.’ So hearing of a

case is essential and that hearing of a case is essential and that hearing

must be fair, just and reasonable, otherwise the whole trial would be

vitiated. Proper observance and enforcement of Article 32 can

contribute to prevent violation of human rights in Bangladesh

significantly. The enforcement and observance of all the above

mentioned guaranteed international and domestic legal provisions for a

fair trial in Bangladesh would become very clear from the following

discussion:

A. Pre-Trial Rights

1. The Prohibition on Arbitrary Arrest and Detention:

The right to affair trial should be available to the accused from the

moment he is arrested. Arrest means detention of a person by legal

authority resulting in deprivation of his liberty. The decision to arrest a

42

person imposes a tremendous responsibility on the authority exercising

it for the principle that ‘No man should be accused, arrested or held in

confinement, except in cases determined by the law and according to

the forms that it has prescribed’ as incorporated in the Declaration of

the Rights of Men and citizens of 1789 is the sine qua non of every

civilized criminal legal system of the world.77 It is significant to

mention her that Article 32 of our Constitution ensures both

substantive and procedural reasonableness of law regarding

deprivation of life and personal liberty. This Article attributes

limitation not only against executive action. But the reality is that most

of the time provisions of this article is not properly observed and

maintained. The application of the fairest procedure may destroy the

enjoyment of life and liberty in the law of unjust or arbitrary or vice

versa i.e., law is just and non-arbitrary but its application is unfair. So,

what is equally needed is that just legislation and fair application

thereof. Jackson J. of the American Supreme Court in Shaughnessy vs

U.S78 held that, even severe substantive laws can be endured if they are

fairly and impartially applied. Although Article 33(10) of our

Constitution provides safeguards against arbitrary arrest and detention

and but in practice, the real situation is somewhat different. On the

other hand Article 33(1) has inserted safeguards from arbitrary arrest

and detention and on the other hand Article 33(4) gives the executive

authority an unlimited power to arrest and detain a person in the name

of the preventive detention under Special Powers Act 1974. Sometimes

it is appeared to us that Article 33 contradicts with the Article 32

because of its wordings ‘in accordance with the law’. If the words ‘in

accordance with the law’ mean any law passed by the Parliament, then

it cases its importance as well as to be a fundamental law. Not only

Articles 33(4) of the Constitution but also section 54 of the Cr.PC

provides wide powers to the police officer. Under this section a police

officer can arrest a person without warrant. He may arrest a person on

more reasonable suspicion. In Bangladesh Legal Aid and Service Trust 77 Manjula Batra, Protection of Human Rights in Criminal Justice Administration, published by Deep and Deep Publications, D- 1/24, Rajouri Garden, New Delhi- 110064, 1989. pp.19-2078 345 US 206.

43

(BLAST) and others Vs Bangladesh,79 it has been explained that

reasonable suspicion implies that the suspicion must be based on

reason and reasons are based on existence of some facts, which is

within the knowledge of the person. So, when the police officer arrests

a person without warrant, he must have some knowledge of some

definite facts on the basis of which he can have reasonable suspicion.

Unfortunately, it is to say that the words ‘reasonable suspicion’ is not

applied reasonable in our country. Though the above mentioned

section human rights violated every moment and police officers are

abusing their power.

2. Communication of Grounds of Arrest:

Since the right to a fair trial being from the moment a person is

arrested, so the right to be informed of the grounds by the arrested

person is considered as a fundamental right by our Constitution for

safeguarding the personal liberty of an individual. This right enables an

arrested person to prepare for his defense and to move the court for

bail or writ of hebeas corpus. Article 33(1) of our constitution provides

that the person who is arrested shall be informed of the grounds for

such arrest. Though the article does not mention any time limit but the

word ‘as soon as may be’ is used. The word ‘as soon as may be’

implies that the grounds shall be informed after the person is bough to

the police station after his arrest. But this constitutional provision is not

sometimes followed by our police officers.80 ‘Grounds’ include all the

basic facts on which the satisfaction of the arresting authority is based,

but not the details of such facts. In Rowshan Bijay S. Ali Khan Vs. East

Pakistan81, it was held that, it is necessary to inform him of the full

details of the offence, but the information should be sufficient to give

him an idea of the offence he is alleged to have committed.

Unfortunately, this constitutional right of an arrested person is

frequently denied in our country. Sometimes an arrested person does

79 55 DLR (2003) 38080 Ibid, p. 371.81 17 D.L.R 1.

44

not know the grounds of his arrest. If this right is denied, an accused

person cannot avail himself/herself of any other opportunity which

could be available to him. In Bangladesh Legal Aid and Service Trust

(BLAST) and others Vs Bangladesh82, it has been recommended that a

police officer shall furnish the reasons for arrest to the person arrested

within three hours of bringing him to the police station.

3. Right to Consult and be Defended by a Lawyer:

Article 33(1) of our Constitution has inserted the right to consult and

be defended by a lawyer of an arrested person of his own choice from

the moment he is arrested as a fundamental right. But this

Constitutional right is frequently being violated or denied in our

country. Moreover, more or less a common picture of our country is

that detainees are often refused access to legal practitioner within the

first 24 hours of arrest. In Moslemuddin Sikdar Vs. Chief Secretary,83 it

was held that the arrested person must be given a reasonable

opportunity to engage a counsel and the counsel must be given a

reasonable opportunity to defend him.

According to the provisions of Article 32 of our Constitution an

accused should be entitled to legal aid even in case of offences not

punishable with death. Unless this can be done, the fair trial will be

vitiated and principles of rule of law and fundamental fairness

enshrined in the constitution will have no meaning.84

82 55 DLR (2003) 38083 8 DLR 526.84 Shajeda Akter, The Right to a Fair Trial under International Human Rights Instruments: A Bangladesh Perspective; The Chittagong University Journal of Law, vol.x, 2005, pp-(18-36.)

45

4. Production before Magistrate:

The right to be produced before a magistrate has been incorporated in

Article 33(2) of our Constitution as a fundamental right. In Mehnaz

Sakib Vs. Bangladesh,85 it was held that, a person arrested must be

produced before a magistrate within 24 hours plus the time necessary

for the journey from the place of arrest to the court of magistrate. This

rule is applicable to all arrests, whether with or without a warrant of

arrest, section 61 of the CrPC also provides same rule in this regard to

protect an arrestee. But on the other hand, section 167 of the said Code

gives wide powers to the magistrate and the police to keep the arrested

person in police-custody in the name of so called ‘remand’. Although

this section fixes the maximum period of remand for 15 days, but the

usual scenario of Bangladesh is completely different. The right of an

arrested person to be brought before a magistrate within a period of 24

hours of arrest gives protection in the following ways86:

a) It protects an arrested person from unlawful deprivation

of liberty;

b) It protects an arrested person from being compelled to

give information or confession;

c) It gives an opportunity to an arrested person for early

recourse to a magistrate for bail or discharge; and

d) It prohibits police stations from being used as prisons.

5. Right to Bail:

Another important right in favor of an arrested person is to mention is

the right to a bail. It protects an arrested person from being detained in

jail illegally. The term ‘bail’ has not been defined in the Cr.PC. The

Code only makes a distinction between ‘bail able’ and ‘non bail able’

offences under section 496 and 497 respectively. But in general,

delivery into the hands of those who bind themselves that is called

85 52 DLR 526.86 Ibid. at page-(11).

46

sureties. In the law lexicon ‘bail’ has been defined to set at liberty a

person arrested or imprisoned on security being taken for his

appearance on a certain day.87 Generally, bail is given on the

undertaking that an accused person shall be produced before the Court

whenever required.

In every bail able offence, a person shall be released on a bail bond

with or without a surety while he is in custody of the concerned

officer-in-charge after his arrest or when he appears or is brought

before the court at any stage of the proceedings.88

With respect to bail able offence, bail is a matter of right and not favor.

As the words of the above mentioned section are imperative, there is

no question of discretion in granting bail. On the other hand, with

respect to non-bail able offence, an accused person shall not be

released on bail if there exits reasonable grounds for believing that he

have been guilty of an offence punishable with death or imprisonment

for life.89 But any person under 16-years of age or any woman or any

sick or infirm person accused of a non-bail able offence may be

released on bail.90

B.THE HEARING

1. Equal Access to and Equality before the Law and the

Court:

The state should proclaim a formal right of equal access to justice for

every citizen and should guarantee by affirmative action, effective

access to justice. This right is an essential fair trial standard both in

international human rights law and in domestic law. As per Article 27

of the Constitution of Bangladesh, all citizens are equal before the law

and are entitled to equal protection of law. The Constitution also

provides that every person accused of a criminal offence shall have the

87 Whartson’s Law Lexion, 14th Ed. At 105.88 The Code of Criminal Procedure 1898, Section 49689 Ibid, Section 497(1) 90 Ibid, proviso to section 497 (1)

47

right to trial by an independent and impartial court and tribunal

established by law.91 The basic Principles on the independence of the

judiciary guarantee this right as every person shall have the right to be

tried by ordinary courts and tribunals using established legal

proceedings. But in Bangladesh, sometimes such principles of fair trial

and fundamental human rights are violated by the court. For example,

Alomgir Kabir, a Member of Parliament of Nowgaon district was

arrested on 10 April 1999 in a murder case and his petition of bail was

rejected by the lower court. On the other hand, Mujibur Rahman

(manik), another Parliament Member of Moulvi Bazar districwas

arrested in the same year for same charge. But shortly he was granted

bail by the lower court.92

So, in same charges, sometimes, the lower Criminal Courts of

Bangladesh fail to ensure the right of equal access to justice of citizen.

However, most of the people of Bangladesh live below poverty line.

For that reason, they cannot go to the High Court Division, even if the

judgment of the lower court makes them aggrieved.

2. Right to a Public Trial:

In Naresh Shridhar vs. State93 of Maharashtra, the Supreme Court of

India held the principle of openness of court proceedings is undoubtly

an essential competent of the accuser’s right to defense. It acts as a

check against judicial caprice or vagaries and serves as a powerful

instrument for creating confidence of the public in fairness, objectively

and impartiality of the administration of justice. Article 35(3) of our

constitution also requires public trial by an independent and impartial

court or tribunal. The main object is to provide a fair trial. In Abdur

Rashid Vs. State,94 it was held that, this section does not mean that the

court cannot restrict the admission into the courtroom of persons not

connected with the trial where the necessity to do so arises. In fact,

91 Article 35(3) of the Constitution of the People’s Republic of Bangladesh.92 Ud-Din MF, and Hannab MA, ‘Protection of Human Rights in Criminal Justice: Bangladesh Perspective’; Research Project, 1998, RU, p-10.93 AIR 1967, SC 1, 8.94 18, DLR (wp) 154.

48

section 352 of the Code confers discretion on the court to restrict

admission or hold the trial in jail premises if necessity arises. It is to be

noted that mere separation of judiciary from the executive organ

cannot ensure fair trial. Trial to be fair, judges have to play an

important role; they must be independent and impartial.95

3. Right to Speedy trial:

Speedy trial is an important part of a fair trial. Speedy trial is so

important that our Constitution made it fundamental rights under

Article 35(3). Sometimes delays in holding a trial amounts to an abuse

of the process of the Court and in such cases criminal proceedings may

be quashed under section 561A of the Cr.PC.96 The constitutional

protection accorded to the accused against an unlawful deprivation of

his liberty would be meaningless if unnecessary delay is caused in his

trial.97 Trial must be held expeditiously without undue delay for the

interest of justice. In this context, the well known maxim ‘justice

delayed is justice denied’ may be mentioned.

4. Right to Present at Trial

The right to be present at trial is another important fair trail competent.

According to section 242 of the Cr.PC, presence of the accused is

essential at the time of farming of charge and accused shall be given

opportunity to answer his/her charge. But, magistrate may dispense

with personal attendance of the accused.98 Where the accused person is

absconding and he/she cannot be arrested and produce for trial and

there is no immediate prospect of arresting him/her, the Court taking

cognizance of the offence complained of, by order published in at least

two national Daily Bangla newspapers having wide circulation direct

such person to appear before it within such period as may be specified

in the order. Thereafter if such person with such direction, he/she

95 Shajeda Akter, The Right to a Fair Trial under International Human Rights Instruments: A Bangladesh Perspective; The Chittagong University Journal of Law, vol.x, 2005, pp-(18-36.)96 Ibid, Op. Cit., p. 122.97 Manjula Batra, Op. Cit,. p. 122.98 Section 205 of the Code of Criminal Procedure, 1898.

49

should be tried in his/her absence.99 It is to be noted that the Rome

Statute does not permit trial in absentia. The Cr.PC provides also that

the accused has a right that evidence to be taken in his/her presence, or

when his/her personal attendance is dispensed with in presence of

his/her pleader.100

5. Trial by the Competent, Independent and Impartial Tribunal Established by Law:

The accused has the right to be tried by the competent, independent

and impartial tribunal. This right is also an essential fair trial standard

both in the international human right instrument and in domestic law in

Bangladesh. This standard is guaranteed by the Constitution of

Bangladesh as every person accused of criminal offence shall have the

right to a speedy and public trial by the independent and impartial

court or tribunal established by law.101 It is to be noted that from

01.11.2007, the lower judiciary in Bangladesh are doing their judicial

functions separately from the executive.

6. Presumption of Innocence:

Presumption of innocence is an important competent of fair trial.

Various international instruments recognize this cardinal principle.

Though, the domestic laws of Bangladesh do not enact this principle,

the Criminal Courts of Bangladesh follow this as international norms

of fair trial.

7. Adequate Time and Facilities:

99 Section 339B and 5/2 (1) ibid.100 Section 353ibid.101 Article 35(3), of the constitution of the People’s Republic of Bangladesh.

50

The accused has the right to adequate time and facilities for the

preparation of his/her defense. Though, there is no direct provision in

domestic laws in Bangladesh in this regard, accused can enjoy this

right in accordance with customs and practices of the court.

Particularly, it is seen that, when the court frames charge against an

accused person, he/she fixes a date for prosecution evidence. In this

respect, the court gives sufficient time to both the parties for raising

their defense.

8. Examination of Witnesses:

Right to examine witnesses is another important competent of fair trial.

This right is available for accused as well as for victims. Likely various

international instruments, the domestic laws of Bangladesh ensure this

right. According to sections 244 and 265G of the Cr.PC, the

prosecution can procedure his/her witnesses to prove his/her case.

Accordingly, the accused can cross examine such witnesses. Under

section 342 of the Cr.PC, an accused person has a right to be examined

and to explain any circumstances appearing against him/her in

evidence. As per section 340 of the Cr.Pc, an accused person has a

right to offer himself/herself as competent witness for defense.

9. The Right to have Interpreter:

Right to have an interpreter is another important criterion of a fair trial.

Various international instruments provide this right as in the

determination of any criminal charge against him/her, everyone shall

have the right to have free assistance of an interpreter if he/she cannot

understand or speak the language used in the court. There is no direct

provision in the domestic law of Bangladesh about this matter. But

section 372 of the Cr.PC provides that if the accused requires

translation of judgment, he/she has right to be supplied with it. Though

the international instruments ensure interpreter for the accused person

but for better interest of justice, the victim should be given free

51

interpreter also, because, he/she is also entitled to the right to get

justice.

10. Protection against Self-incrimination:

It is fundamental principle of common law criminal jurisprudence that

the prosecution has to prove its case and the accused cannot be

compelled to make any statement against his will. The principle

emanates from the apprehension that without protection against self-

incrimination, an accused would be exposed to coercion and torture.102

Article 35(4) of our Constitution states that ‘No person accused of any

offence be compelled to be a witness against himself.’ Accordingly

section 161(2) of the Cr.PC also requires that any person supposed

acquainted with the facts of the case, shall be bound to answer all

questions relating to such case put to him by any police officer making

an investigation, other then questions the answer to which would have

a tendency to expose him to a criminal charge or to a penalty or

forfeiture. Both, section 161(2) of the Code and Article 35(4) of our

Constitution give protection against self-incrimination.

102 Mahmudul Islam, Constitution Lawof Bangladesh, published by Mullick Brothers, Second Ed. 2002, p218

52

11. Prohibition on Retroactive Application of

Criminal Law:

The principle ‘nullum crimen sine lege’ is recognized by the various

international instruments as well as the domestic law. As per article

35(1) of the Constitution of Bangladesh no person shall be convicted

of any offence except for violation of a law in force at the time of the

commission of the act charged as an offence, nor be subjected to a

penalty greater than, or different from, that which might have been

inflicted under the law in force at time of the commission of the

offence.

12. Prohibition on Double Jeopardy:

The prohibition of neb is in idem or of double jeopardy is another

basic fair trial principle. The aim of this principle is to prevent a person

from being tried and punished for the same crime twice. The

international instruments provide this principle as no one shall be liable

to be tried or punished again for an offence for which he has already

been finally convicted or acquitted in accordance with the law and

penal procedure of each country.103 The domestic laws of Bangladesh

ensure that no person shall be prosecuted and punished for the same

offence more than once. According to section 403(1) of the Cr.PC, a

person who has been tried by a court of competent jurisdiction for an

offence and convicted or acquitted of such offence shall, while such

conviction or acquittal remains in force, not be liable to be tried again

for the same offence, nor on the same facts for any other offence for

which a different from the one made against him might have been

made under section 236, or for which he might have been convicted

under section 237.

103 The same is stated in Article 4 of the protocol 7 to the European Convention and Article 20 of the Rome Statute.

53

4.5 CONCLUSION:

International standards of fair trial are numerously mentioned in our

constitution and are to be anonymous followed by judiciary. But in

practice, it is seen that, Bangladesh has failed to implement the

international standards of fair trial. The constitution of Bangladesh

provides equality before law104, right to equal protection of law105,

protection of right to life and personal liberty106, safeguards as to arrest

and detention107, protection in respect of trial and punishment108 that are

similar to the international standards of fair trial. But the main law of

criminal procedure does not contain enough provisions to ensure fair

trial. According to the Cr.PC and the constitution of Bangladesh, the

accused person enjoy many rights as right to bail, right to legal

defense, right to silence, right to legal aid etc, on the other hand, the

complaint or prosecutor has only liability to prove his/her case beyond

reasonable doubt. However, the provision of victim and witnesses

protection are not sufficient in the Cr.PC.

104 Article 27 of the Constitution of the People’s Republic of Bangladesh.105 Article 31, ibid.106 Article 32, ibid.107 Article 33, ibid.108 Article 35, ibid.

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CHAPTER-FIVE

CONCLUSION

5.1 INTRODUCTION:

It is fact that international organization, governmental as well as non-

governmental, both local and foreign, are more active and aware than

before for the protection and promotion of human rights. At the

beginning of 21st century human rights have received fuller

recognition, nationality and internationally. Now it is essential that

effective mechanism need to be incorporated so that all the states of the

world can strictly follow and observe the provisions of international

instruments on human rights. The states as well as the governments

must be made accountable in case of violation of these rights in their

territories. Besides, the most effective ways and means for the

protection of human rights, it is submitted, is that the victims of

violation of human rights must be recognized to protect against such

violations so that the violators will be morally weakened and the

oppressed will morally boost up and thereby active world opinion in

favor of the oppressed. The days are ahead when people will be more

conscious of their rights, as guaranteed in different international human

rights instruments and will be more organized for the protection and

promotion of their rights. The right to a fair trial of the accused being

eventually part of the human rights strategy most necessarily be

organized by the constitution and the law of every country to safeguard

the individual’s personal liberty against the autocracy and

authoritarianism of the Government.109 Therefore, the principle that

every person is to be presumed innocent until proved guilty by the

court dominates the criminal jurisprudential philosophy of both in

international laws and municipal laws of Bangladesh. On the basis of

the aforementioned irrefutable principles of criminal jurisprudence the

law-making body of Bangladesh has incorporated in the constitution

and criminal legislation a series of provisions with the object of

109 Batra. M, Protection of Human Rights in Criminal Justice Administration (Deep and Deep Publications, New Delhi: 1989), (3).

55

safeguarding the interest of the accused. These provisions that have

been defined as basic human rights of the accused in any civilized

order have been examined and analyzed in the present study. Thus, the

findings of the study can be summed up in terms of significant right as

follows:

5.2 FIDINGS OF THE STUDY:

The Constitution of Bangladesh guarantees fair trial right of the

accused. In spite of that sometime the accused becomes the victim of

violation of these human rights. The Government of Bangladesh must

pay attention to protect the right of the accused, convicts and members

of the republic by taking necessary security measures against the

violators, especially against the law enforcing agencies by establishing

more courts and appointing more judges for speedy and impartial trial.

The foregoing discussion also reveals that, during pre-trial stage,

torture is committed by police by misusing section 54, 167 and 334 of

the Cr.PC in the name of ‘remand’. Police very often misuse the

application of section 54 and maliciously arrest innocent persons in

order to claim bribes from them. National dailies, weeklies, human

rights journals of Bangladesh and even human rights practices

published by US Department of state highlight the nature of violations

of this type of human rights in Bangladesh.110

5.3 RECOMMENDATION:

The implementation of basic human rights is sine qua non for the

development of human civilization in the society. The rule of law is

essentially necessary for the protection and promotion of human rights.

In our forgoing discussion, we have mentioned that freedom, justice

and peace are considered as per-requisites of rule of law. Peace in the

society cannot be ensured without proper implementation of the above

mentioned elements of rule of law. It is needed to mention that state

110 United States Information Services (USIS), Dhaka Published a report on the state of human rights in Bangladesh in 1999.

56

might have a written documented justice under the rule of law, but in

real sense of justice it is to be implemented and administered fairly,

impartially and properly. It is mentioned earlier that to ensure justice

all the elements of substantive or procedural due process should be

properly maintained and observed but at the same time another point

should be mentioned here that mere maintenance and observance of

substantive or procedural due process cannot be successful until and

unless there is enough co-operation from the competent authorities of

the government for proper administration of justice as well as for

implementation of basic human rights. In our country, the main

problem is that the government and its law enforcing agencies are

violating the human rights law frequently. If there is no remarkable

change in the attitude of the government and its agencies to ensure

justice properly, fairly and impartially, people’s legitimate expectation

regarding implement of human rights will be frustrated. So, to protect,

preserve and uphold the human rights values in the country, there is an

urgent need to develop trained manpower within the law implementing

authority. As the right to a fair trial of an accused person under

administration of criminal justice system has been accepted as basic

human rights, so, to ensure these basic human rights, our foregoing

discussion and findings can be concluded with following

recommendations:

1. It has been found that Article 33(1) of our constitution has been

inserted to safeguard people from arbitrary arrest and detention, so

for proper administration of justice any kind of arbitrary arrest and

detention by the police officer under section 54 of the code should

be prohibited and this section must be amended.

2. It is recommended that if it is found that anyone who has been the

victim of unlawful arrest and detention by the police and who has

been tortured in the police custody should be compensated and

those who are liable for torture should be punished.

57

3. Since it has been found that for ensuring personal liberty of an

arrested person, anyone arrested must be informed of the grounds

of his arrest within short period such as, it may be within two or

three hours from the arrest for legal assistance and time limit for

production before a magistrate within 24 hours from the arrest

should be decreased and the maximum time limitation should be

within 12 hours from the arrest so that an arrested person can take

early opportunity of bail or discharge which is available to him.

4. Since it has been found that sometimes an accused person

becomes unwilling to assign a lawyer to defend himself but at this

stage, court should assign a lawyer at the cost of the state to ensure

fair trial.

5. Since most of the human rights violations are occurred in police

custody during the period of remand, so remand in police custody

should be allowed for very limited periods and only in special

cases. This may prevent and protect an arrested person from being

harassed and tortured in police custody by them.

6. Since it has been revealed that police abuses their power during

investigation, inquiry and confession, so presence of representative

of an accused person during investigation, inquiry and confession

may prevent misuse or abuse of power by the police.

7. In Bangladesh, there is no independent investigation authority like

the prosecutor of the ICC to investigate criminal cases. Officer-in-

charge of a police station is empowered to investigate cases. But

many of them have no proper knowledge about the law regarding

investigation and court procedure. As a result, such investigating

officer cannot make investigation properly. Like the prosecutor of

the ICC, Bangladesh needs separate and independent investigating

agency; and the existing old and archaic criminal laws and

procedure are to be reformed in the light of the liberalized world

situations.

58

8. It can be recommended that if an accused is acquitted after

judgment, he should be compensated with a view to improving

proper administration of justice.

9. The foremost important thing which has been found is that speedy

disposal of cases is needed to ensure justice.

10. The recommendations and directions laid down in Bangladesh

Legal Aid and Services Trust (BLAST) and others vs.

Bangladesh111 case should be implemented immediately.

11. Basic human rights, such as, the right to a fair trial should be

recognized stately and must be substantially included in the state’s

constitution for safeguarding and protecting basic human rights.

12. Summary trial should be held to expedite judicial system so that

large backlog of case cannot take place. Sufficient number of

courts should be established and the number of judicial officers

should be increased for quick disposal of suits.

13. International Bill of Human Rights and other UN documents on

human rights are ratified by the Government for implementation.

If these recommendations are implemented, it is expected, the

protection of the right to fair trial of an accused person will be

ensured and we can get a society free from lawlessness resulting in

peaceful existence of people of varied race, colour, sex, religion,

and political difference.

111 55 DLR (2003) 363.

59

BIBLIOGRAPHY

LEGISLATION

Bengal Jail Code 1894 (Bangladesh)

Bill of Rights 1689. (England)

Code of Criminal Procedure 1908.

Code of Civil Procedure 1898.

Constitution of Bangladesh 1972.

Constitution of India 1950.

Constitution of Pakistan 1956.

Penal Code 1860 (Bangladesh)

Special Powers Act 1974 (Bangladesh)

The Evidence Act 1872(Bangladesh)

The Prisoner Act 1900(Bangladesh)

The Prisons Act 1894(Bangladesh)

INTERNATIONAL INSTRUMENTS

Charter of United Nations 1945.

Optional Protocol to the International Covenant on Civil and Political

Rights 1966

Universal Declaration of Human Rights 1948.

UN Declaration on the Right to Development 1986.

REGIONAL INSTRUMENTS

African Charter on Human and Peoples’ Rights 1981.

American Convention on Human Rights 1969.

Arab Charter on Human rights 1994.

European Convention for the Protection of Human Rights.

Fundamental Freedoms 1950.

60

ABBREVIATION

AC- Africans Commission.

ACHPR- African Charter on Human & Peoples’ Rights.

ACHR- American Convention on Human Rights.

AI- Amnesty International.

AIR- All Indian Report.

AP- Additional Protocol.

BC- Bangladesh Constitution.

BGB- Border Guard of Bangladesh.

BLD- Bangladesh Legal Decision.

BPRL- Basic Principles on the Role of Lawyers.

CPC- The Code Civil Procedure.

Cr.PC- The Code Criminal Procedure.

CRC- Convention on the Rights of Child.

CRLJ- Criminal Law Journal.

DLR- Dhaka Law Report.

ECHR- European Convention on Human Rights.

GA- General Assembly.

ICC- International Criminal Court.

ICCPR- International Covenant on Civil & Political Rights.

ICESCR- International Covenant on Economic, Social & Cultural

Rights.

ICJ- International Court of Justice.

ICTY- International Criminal Tribunal for the Former Yugoslavia.

IHL- International Humanitarian Law.

LEA- Law Enforcing Agency.

PC- Penal Code.

RU- Rajshahi University.

UK- United Kingdom.

UN- United Nations.

USA- United States of America.

USIS- United State Information Service.

61