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 nowa-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

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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

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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.

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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. 2. 3. 4. To study on the general concept of fair trial. To identify the slandered of fair trial under international To identify the standard of fair trial under municipal legal To make a comparison between the standard of fair trial

instruments. provisions. guaranteed by international instruments and the domestic laws of Bangladesh. 5. To make a framework of fair trial of accused person in Bangladesh.

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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. 2. 3. Review of international instruments of human rights of the Examination of constitutional guarantees regarding the fair trial Analysis of statutory laws and case laws relating to fair trial accused. right of the accused in Bangladesh. 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.

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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 areThe 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.

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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,
5

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/pdf/31n/pdf

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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

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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 proceedingsincluding 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, subcommission 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

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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; • • •
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The tribunal must consider the evidence presented; The decision must be supported; The evidence must be substantive;

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 required perfection in every detail. The essential question is whether
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.

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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 14

Prosecutor vs. Slobodan Milosevic The first ten tables were published around 455B.C., with the last two around 499B.C. 15 Table 2, law 1 16 Table9, law 1 17 Table 9, law 3 18 AnnLyon, Constitutional History of the United Kingdom 39 (Cavendish publishing 2003)

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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 himsave 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 10.2.2010 21 Rosalined Mitchison, Ahistory of Scotland 38-55, (3rd ed.2002) 1970 22 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).

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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 are1. 2. 3. The laws of the country in which the trial is being held; The human rights treaties to which that country is a party, and 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), p11. 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 28

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

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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.

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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

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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).

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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. 1981(herein after called as Banjul Charter) Arts 3, 6and 7; 2. 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 Protocol Additional to the Geneva Conventions of The African Charter on Human and Political Right,

12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts(Additional Protocol 11), Art6; 4. Arts 7, 8, and 9. 5. European Convention for the Protection of Human American Convention on Human Rights (ACHR),

Rights and Fundamental Freedoms (ECHR), Arts5, 6 and 7. 6. 3; 7. Geneva Convention for the Amelioration of the Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in Armed Forces in the Field, Art

Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Art 3. 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. 19

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. 8. Guidelines on the Rule of Prosecutors.41 Principles on the Effective Prevention and

Investigation of Extralegal and summary Executions.42

35 36

UN General Assembly Resolution 45/111, December 14, 1990 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, 1990 39 UN General Assembly Resolution 40/32, Nov. 29, 1985 and Resolution 40/146, December 13 1985. 40 UN General Assembly Resolution 40/33, Nov. 29, 1985 41 Adopted by the Eight UN Congress on the Prevention of Crime and the Treatment of offenders, Havana, Cuba, August 27-Sep. 7, 1990. 42 UN Economic and Social Council Recommendation Resolution 1989/65, 24, 1989

20

9.

Basic Principles on the Use of Force and Firearms

by Law Enforcing Officials.43 10. of Their Liberty.44 11. Code of Conduct for Law Enforcement Officials.45 UN Rules for the Protection of Juveniles Deprived

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; (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
43

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.

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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 47

Adopted June 27, 1981, entered into force October 21, 1986 Adopted Nov. 22, 1969 48 Adopted Nov. 5, 1950

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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 53

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

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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.

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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)
T ra ns fe rr ed to th e I C C C h a r g e s c o n fi r m e d

Si t u at io n

Referra l (date)

In ve sti ga tio n op en ed

Individ uals indicte d

S t a t u s

N or th er n U g a n d a

Govern ment of Uganda (Decem ber 2003)

Jul y 20 04

Joseph Kony

Vincent Otti

Raska Lukwiy a

F u gi ti v e D ie d in 2 0 0 7 (? ) D ie d o n 1

54

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

30

Okot O dhiamb o

Domini c Ongw en

D e m o cr at ic R e p u bl ic of th e C o n g o ( D R C )

Govern ment of the DR C (March 2004)

Ju ne 20 04

Thoma s Luba nga

17 M ar ch 20 06

2 9 J a n u a r y 2 0 0 7

2 A u g u st 2 0 0 6 F u gi ti v e F u gi ti v e I n I C C c u st o d y, tr ia l b e g a n o n 2 6 J a n u ar y 2 0 0

31

Germai n Katan ga

Mathie u Ngud jolo Ch ui

17 O ct ob er 20 07 6 Fe br ua ry 20 08

2 6 S e p t e m b e r 2 0 0 8

9 I n I C C c u st o d y, tr ia l b e g a n o n 2 4 N o v e m b er 2 0 0 9[
10 3]

Bosco Ntagan da

Callixte Mbarus himana

F u gi ti v e A rr e st e d o n 1 1 O

32

ct o b er 2 0 1 0[
10 4]

, in I C C c u st o d y si n c e 2 5 J a n u ar y 2 0 1 1[
10 5]

C e nt ra l A fr ic a n R e p u bl ic

Govern ment of the CA R (Decem ber 2004)

M ay 20 07

JeanPierre Bemba

3 Ju ly 20 08

1 5 J u n e 2 0 0 9

I n I C C c u st o d y, tr ia l b e

33

( C A R )

g a n o n 2 2 N o v e m b er 2 0 1 0[
10 6]

D ar fu r, S u d a n

UN Security Council (March 2005)

Ju ne 20 05

Ahmed Haroun

Ali Kus hayb

Omar a lBashir

Bahr Idriss Abu Garda

F u gi ti v e F u gi ti v e F u gi ti v e C h ar g e s di s m is s e d 8 F e

34

b r u ar y 2 0 1 0[
10 7]

Abdalla h Banda Abakae r Nourai n

Saleh Moham med Jerbo Jamus

A p p e ar in g v ol u nt ar il y A p p e ar in g v ol u nt ar il y

R e p u bl ic of K e n y a

Authori zation by PreTrial Chambe r (March 2010)

3.2.1.6 FAIR TRIAL RIGHT UNDER THE ROME

35

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 equalitya. b. c. d. e. f. Equality before law.58 Speedy Trial.59 To be present at trial.60 Adequate preparation of defence.61 Defence through legal Counsel.62 To examine the witnesses.63

55 56

Established by the Londen Agreement of 1945. Tokyo Tribunal, established in 1946. 57 Under Control Council Law No. 10(1946). 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.

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g. Interpreter.64 h. i. j. application of criminal law.67 k. l.

To have the Assistance of an Fair and public hearing.65 Prohibition on self-incrimination.66 Prohibition of retroactive Presumption of innocence.68 Written Statement.69

3.2.1.7 FAIR TRIAL RIGHTS UNDER INTERNATIONAL HUMANITARIAN LAW:
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

64 65

Art. 67(1),ibid. 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. 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).

37

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 preemptory 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.

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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.

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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 No person who is arrested shall be detained in custody without

accordance with law.76 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 No person accused of an offence shall be compelled to be a Every person accused of a criminal offence shall have the right to degrading punishment or treatment. witness against himself. a speedy and public trial by any independent and impartial court or tribunal established by law.

75 76

Yubaraj Sangroula, op.cit.p-77 The Constitution of Bangladesh, 1972; Article 32.

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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.19-20 78 345 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 80

55 DLR (2003) 380 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 83

55 DLR (2003) 380 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.)

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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) of liberty; b) c) d) It protects an arrested person from being compelled to It gives an opportunity to an arrested person for early It prohibits police stations from being used as prisons. give information or confession; recourse to a magistrate for bail or discharge; and It protects an arrested person from unlawful deprivation

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 86

52 DLR 526. Ibid. at page-(11).

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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 88

Whartson’s Law Lexion, 14th Ed. At 105. The Code of Criminal Procedure 1898, Section 496 89 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 92

Article 35(3) of the Constitution of the People’s Republic of Bangladesh. 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.

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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.

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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. Section 353ibid. 101 Article 35(3), of the constitution of the People’s Republic of Bangladesh.
100

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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

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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 selfincrimination, 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

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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.

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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.

104 105

Article 27 of the Constitution of the People’s Republic of Bangladesh. 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 nongovernmental, 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).

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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.

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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.

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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-incharge 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.

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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.

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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.

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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.

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