Professional Documents
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The Role of Police in Criminal Justic System
The Role of Police in Criminal Justic System
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.
1
The ‘right to a fair trial’ in criminal cases at law is ensured by articles 10 and 11 of the
UDHR and art. 14 of the ICCPR.
2
See David Harris, ‘The Right to Fair Trial in Criminal Proceedings as a Human Right, 16 in
T’I &comp. L.Q.352(1967) http://www3.law.nyu.edu/journals/jalap/31/n/pads/
3
http: 11www.legislationline.org/ tid= 1 & less=false
1
trial and a comparison between the standard of fair trial as assured by
international instruments as well as the municipal laws of Bangladesh.
4
Third degree method means a method in which the police apply physical and/ or mental
pressure upon the suspect to exact information of incriminatory nature while he/she is being
interrogated.
2
crime is an accused. Every mature legal system of the world, be it the
American, British, Indian or Bangladeshi, regards the accused as
innocent until he is proved guilty beyond all reasonable doubts. The
protection of the right of the accused against the coercive powers of the
state is part of the human rights propaganda initiated by the United
Nations Organizations and expressed directly in part 3 of art 14(2) of
the International Covenant on Civil and Political Rights. This provides
that “Everyone charged with a criminal offence shall have the right to
be presumed innocent until proved guilty according to law”.
3
1.4 METHODOLOGY OF THE STUDY:
This study will examine the laws, international and municipal, and
practices relating to the standard of fair trial of accused persons. In
order to give complete shape to this thesis, arrange of research methods
are used—
1. Review of international instruments of human rights of the
accused.
2. Examination of constitutional guarantees regarding the fair trial
right of the accused in Bangladesh.
3. Analysis of statutory laws and case laws relating to fair trial
right of the accused in Bangladesh and some other major legal
system, e.g U.K, USA, India and Pakistan.
4
1.7 CHAPTERIZATION OF THE STUDY:
5
CHAPTER-TWO
GENERAL CONCEPT
2.1 INTRODUCTION:
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
6
concept of the fairness, beginning of the right to fair trial, general
impediments and requirements, aims of fair trial and basic fair trial
criteria. It also shortly speaks about the concept of “accused person”. It
should be remembered that, here trial concept mainly followed while
criminal hearing. This chapter is written after taking guidance from
some books journal and articles.
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.
7
determination of an individual’s right and duties in a suit at law and
with respect to the determination of any criminal charge against him or
her. The term suit at law refers to various types’ court proceedings-
including administrative proceedings, for example- because the
concept of a suit at law has been interpreted as hinging on the nature of
the right involved rather then the status of one of the parties7.
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 trial 8. To establish role of law in
the society trial must be fair and it must be administered properly i.e.
free from arbitrary, influence, interference, inducements, pressures,
threats or biasness from any quarter within or outside the state. The
term fair trial may be utilized in a variety of contexts. Moreover it has
different connotations in different purposes. The provision of a ‘fair
and the human rights of defines, the right to a fair trial: current recognition and measures
necessary for its strong strengthening,” final report, commission on human right, sub-
commission on prevention of discrimination and protection of minorities, 46th session,
E/CN.4/sub.2/1994/24,june 3,1994/[herein after report] at 59-62.
7
See Dominic Megoddrick, the Human Rights Committee, its role in the development of the
ICCPR at 415.
8
Shajeda Akter, The Right to a Fair Trial under International Human Rights Instruments: A
Bangladesh Perspective; The Chittagong University Journal of Law, vol.x, 2005, p 19
8
trial’ is equated with the concept of due process; a trial is fair if it
satisfies the substantive and procedural requirements of due process.
9
Isagari A. Curz, Constitutional law (1959). The Philippines, 101.
9
The decision must based upon the evidence presented at the
hearing, or at least recorded and disclosed to the parties
affected.
The tribunal or body or any of its judges must act of its own or
his own independent consideration of the law and facts of the
case and not simply accept or disregard the views of a
subordinate in arriving at a decision;
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 equitable 11. 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
10
Yubaraj Sagroula, turning human rights into touchstones of civilized social orders in the
content of Nepal. Human rights and Globalization. December, 2003, published by executive
director, empowerment through law of the common people, 333/1 (new 8/1) segunbagicha,
Dhaka- 1000, Bangladesh. Pp. 75-7b.
11
Concise Oxford Dictionary, p.510 (10th ed.)
12
Maharaja Vs. Attorney General of Trinidad and Tobago Privy Council, (1979) AZ 385;
(1978)2 AER 670; (1978) WLR 902.
10
Slobodan Milosevic that,- “the fairness of a trial of a trial need not
required perfection in every detail. The essential question is whether
the accused has had a fair chance of dealing with the allegations
against him.”13
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.
11
Magna Carta paved the way for later developments during the age of
Enlightenment that would seek to subject govt. to the will of the
people.19
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).
12
Another important historical event was the French Revolution. Article
6 through 9 of the French Declaration of the Rights of Men, adopted
in1789, require a presumption of innocence and prohibit detention
unless determined by law. These articles have been constructing as the
basis for fair trial rights French’s subsequent Constitutions. As soon as
the French Declaration was introduced, the middle age ended the
modern age stepped onward because in the declaration it is proclaimed,
‘the end of divine, heroic and feudal times’.25The rights to a fair trial an
modern ages proclaimed by modern human rights instruments are
elaborately discussed in the third chapter.
But, they may also be found in documents which, though not formally
binding, can be taken to express the direction in which the law is
evolving. In order to avoid possible challenges to the legal nature of
the standards employed in vaulting the fairness of a trial, monitors
refer to norms of undisputedly legal origin. This are-
25
Dr. Reba Mondol and Dr. Md. Shajahan Mondol, Quoting Dr. M. Ershadul Bari,
Manobadhikar Ain Shangbidhan Islam NGO, Shams Publications, Dhaka, 2nd ed. (2009), p-
11.
26
The provisions of the UDHR are for the most part considered declarative of customary
international law and may be of paramount importance if a state has not ratified or acceded to
the ICCPR, the convention against tortury and other cruel, inhuman or degrading treatment or
punishment, or any regional human rights instrument. The most directly relevant articles of
the UDHR are 5,9,10 and 11.
13
The Code of criminal procedure of 1898(Act no.v of 1898) does not
contain any definition of the terms accused and accused a person. The
term accused denotes the person against whom a complaint is given to
a court that he has committed and offence. Hence, a person who is
proceeded against in a criminal court for payment of or enforcing
payment of maintenance is not an accused’.27 A person against whom
an inquiry is conducted cannot strictly be called and ‘accused’ whether
be inquiry be under the security section or in an official or
development inquiry. It would be very dangerous to hold that a person
against whom ‘quasi- civil proceedings’ are being taken under the
Code of Criminal Procedure, are accused person and may make false
statement, on oath, without being liable to punishment.28
27
K.J. Aiyar, Judicial Dictionary.(13th edition), Butterworth’s India, New Delhi(2001).
28
Mohan lal V.CEO, AIR 1962 MP17 at18, I crlj411.
29
Directorate of Enforcement v Deepak Mahjan AIR 1994 DE1775.
14
This study presents and evaluation of the existing conditions of the
right to a fair trial of an accused person in Bangladesh keeping pace
with the laws relating to the right to a fair trial of an accused person
under international instruments. This study basically concentrates on
the human rights (fair trial rights) of the accused in pre-trial and trial
stages.
The final chapter summarizes the major findings of the study and
outlines the possible recommendations to strengthen the criminal
justice in order to established human rights of the accused.
15
CHAPTER – THREE
RIGHT TO A FAIR TRIAL OF AN ACCUSED
PERSONUNDER INTERNATIONAL LAW
3.1 INTRODUCTION:
30
Amnesty International, the International Criminal Court, Making the right to choices part 2,
Report, IOR, 40/11/97 (http; //www. org. ailib/aipub/1997/IOR/14001197. htm.) access to
20.2.2010
16
Article 18 of the American Declaration of the Rights and Duties of
Man, adopted in May 1948, entrenches the right to a fair trial. 31 It is
now well known that this Declaration predates the UDHR. In fact, this
is often overlooked. The Universal Declaration of Human Rights,
which was adopted by the United Nations General Assembly in
December 1948,32 provides in article 10 the right to a fair trial.
31
American Declaration of the rights and duties of man, 30 may 2,1948, reprinted in
handbook of existing rules pertaining to human rights, OEA/ ser.L/V/11.23 Doc 21 Rev 6,at 5
(1979)
32
The universal declaration of human rights, Dec.10,1948, G.A Res. 217A(111),UN Doc.
A/810.
33
Wolf V. Panama, Communication No. 289/1988,UN Doc. ccpr/ c/44/D289/1988 (1992)(the
accused refused attendance to relevant proceedings); Thomas V. Jamaica, communication
No.272/1998,UN.Doc. ccpr/ c/44/D289/1988 (1992)(the accused was not informed of his
appeal date Until after in had taken place.)Ibrahim Ali Badawi El-sheikh, Preliminary
Remarkes on the Right to a Fair Trial Under the African Charter on Human and Peoples
Rights, in the right to a fair trial 328-29 (David Weissbrodt and Rudiger Wolgfram eds.,1997).
17
innocence, and right to be tried within a reasonable time period by an
impartial court or tribunal.
34
ibid
18
General standard of fair trial are also enumerated in a number of
international instruments including—
19
The standards against which a trial is to assessed in terms of fairness
may also be found in documents which, though not formally binding,
can be taken to express the direction in which the law is evolving.
Non-binding documents of relevance to the conduct of criminal
proceedings and to ascertaining fair trial standards include:
35
UN General Assembly Resolution 45/111, December 14, 1990
36
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.
20
8. Principles on the Effective Prevention and
Investigation of Extralegal and summary
Executions.42
42
UN Economic and Social Council Recommendation Resolution 1989/65, 24, 1989
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.
21
(4) The Convention on the Rights of the Child;
46
Adopted June 27, 1981, entered into force October 21, 1986
47
Adopted Nov. 22, 1969
48
Adopted Nov. 5, 1950
22
3.2.1.1 FAIR TRIAL RIGHT UNDER UNIVERSAL
DECLARATION OF HUMAN RIGHTS:
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.
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."
"(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 …"
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.’
52
Means-‘not twice in the same’.
53
http://law.jrank.org/pages/1386/Intenational-Criminal-Justice-Standards-American-
Convention-on-Human-Rights.html#ix22oeeZnljXh.access to 23.02.2010
26
Article 6 -
(b) To have adequate time and the facilities for the preparation of his
defence;
27
3.2.1.5 FAIR TRIAL RIGHT UNDER
INTERNATIONAL CRIMINAL COURT:
The Rome Statute provides that all persons are presumed innocent until
proven guilty beyond reasonable doubt, and establishes certain rights
of the accused and persons during investigations. These include the
right to be fully informed of the charges against him or her; the right to
have a lawyer appointed, free of charge; the right to a speedy trial; and
the right to examine the witnesses against him or her and to obtain the
attendance and examination of witnesses on his or her behalf.
Some argue that the protections offered by the ICC are insufficient.
According to one conservative think-tank, the Heritage Foundation,
“Americans who appear before the court would be denied such basic
constitutional rights as trial by a jury of one's peers, protection from
double jeopardy, and the right to confront one's accusers.” The Human
Rights Watch argues that the ICC standards are sufficient, saying, “the
ICC has one of the most extensive lists of due process guarantees ever
written”, including “presumption of innocence; right to counsel; right
to present evidence and to confront witnesses; right to remain silent;
right to be present at trial; right to have charges proved beyond a
reasonable doubt; and protection against double jeopardy”. According
to David Scheffer, who led the US delegation to the Rome Conference
(and who voted against adoption of the treaty), “when we were
negotiating the Rome treaty, we always kept very close tabs on, ‘Does
this meet U.S. constitutional tests, the formation of this court and the
due process rights that are accorded defendants?’ And we were very
confident at the end of Rome that those due process rights, in fact, are
protected, and that this treaty does meet a constitutional test.” Mr.
Scheffer's opinion on whether the treaty satisfies the requirements of
the U.S. Constitution is simply the opinion of a diplomat; no U.S. court
has opined on the issue leaving it open to dispute.
28
To ensure “equality of arms” between defense and prosecution teams,
the ICC has established an independent Office of Public Counsel for
the Defense (OPCD) to provide logistical support, advice and
information to defendants and their counsel. The OPCD also helps to
safeguard the rights of the accused during the initial stages of an
investigation. However, Thomas Lubanga's defense team say they have
been given a smaller budget than the Prosecutor and that evidence and
witness statements have been slow to arrive.
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
54
http://en.wikipedia.org/wiki/International_Criminal_Court
30
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35
STATUTE OF INTERNATIONAL
CRIMINAL COURT:
The Rome Statute provides for many of the rights of the accused
recognized by the international Community as necessary under major
human rights instruments, humanitarian or custody law as a basis of
fair trial. The Rome Statute enunciates a number of necessary
minimum guarantees including the following rights of the accused to
be applied with full equality-
b. Speedy Trial.59
c. To be present at trial.60
55
Established by the Londen Agreement of 1945.
56
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.
36
g. To have the Assistance of an
Interpreter.64
h. Fair and public hearing.65
i. Prohibition on self-incrimination.66
j. Prohibition of retroactive
application of criminal law.67
k. Presumption of innocence.68
l. Written Statement.69
64
Art. 67(1),ibid.
65
Art. 67(1)(g),ibid.
66
Art. 24(1),ibid.
67
Art. 67(1),ibid.
68
Art. 67(1)(f),ibid.
69
Art. 67(1)(h),ibid.
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 pre-
emptory norm of general international law. Judges must remain
vigilant in the pursuit of justice and fairness. Our reach for perfect
trials must always exceed our grasp. So that the men and women
accused before us at all times are afforded the full extent of the
protection of the law.
38
CHAPTER – FOUR
RIGHT TO A FAIR TRIAL OF AN ACCUSED
PERSON UNDER MUNICIPAL LAWS OF
BANGLADESH
4.1 INTRODUCTION:
39
4.2 CRIMINAL LEGISLATION OF
BANGLADESH:
74
Dr. M Abdul Hannan, Right to Reasonable Investigation Process in Criminal Justice in
Bangladesh; R.U Law Journal 2007, vol. 04.pp 37, 38.
40
rights or maintaining these standards.75 The Constitution of Bangladesh
enshrines these rights in the following provisions and establishes as a
fundamental right in pursuance of criminal justice:
75
Yubaraj Sangroula, op.cit.p-77
76
The Constitution of Bangladesh, 1972; Article 32.
41
4.4 ENFORCEMENT AND OBSERVANCE OF
THE LEGAL PROVISIONS FOR A FAIR
TRIAL IN BANGLADESH:
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.
79
55 DLR (2003) 380
80
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.
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.
82
55 DLR (2003) 380
83
8 DLR 526.
84
Shajeda Akter, The Right to a Fair Trial under International Human Rights Instruments: A
Bangladesh Perspective; The Chittagong University Journal of Law, vol.x, 2005, pp-(18-36.)
45
4. Production before Magistrate:
The right to be produced before a magistrate has been incorporated in
Article 33(2) of our Constitution as a fundamental right. In Mehnaz
Sakib Vs. Bangladesh,85 it was held that, a person arrested must be
produced before a magistrate within 24 hours plus the time necessary
for the journey from the place of arrest to the court of magistrate. This
rule is applicable to all arrests, whether with or without a warrant of
arrest, section 61 of the CrPC also provides same rule in this regard to
protect an arrestee. But on the other hand, section 167 of the said Code
gives wide powers to the magistrate and the police to keep the arrested
person in police-custody in the name of so called ‘remand’. Although
this section fixes the maximum period of remand for 15 days, but the
usual scenario of Bangladesh is completely different. The right of an
arrested person to be brought before a magistrate within a period of 24
hours of arrest gives protection in the following ways86:
5. Right to Bail:
85
52 DLR 526.
86
Ibid. at page-(11).
46
sureties. In the law lexicon ‘bail’ has been defined to set at liberty a
person arrested or imprisoned on security being taken for his
appearance on a certain day.87 Generally, bail is given on the
undertaking that an accused person shall be produced before the Court
whenever required.
B.THE HEARING
1. Equal Access to and Equality before the Law and the
Court:
The state should proclaim a formal right of equal access to justice for
every citizen and should guarantee by affirmative action, effective
access to justice. This right is an essential fair trial standard both in
international human rights law and in domestic law. As per Article 27
of the Constitution of Bangladesh, all citizens are equal before the law
and are entitled to equal protection of law. The Constitution also
provides that every person accused of a criminal offence shall have the
87
Whartson’s Law Lexion, 14th Ed. At 105.
88
The Code of Criminal Procedure 1898, Section 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
48
section 352 of the Code confers discretion on the court to restrict
admission or hold the trial in jail premises if necessity arises. It is to be
noted that mere separation of judiciary from the executive organ
cannot ensure fair trial. Trial to be fair, judges have to play an
important role; they must be independent and impartial.95
49
should be tried in his/her absence. 99 It is to be noted that the Rome
Statute does not permit trial in absentia. The Cr.PC provides also that
the accused has a right that evidence to be taken in his/her presence, or
when his/her personal attendance is dispensed with in presence of
his/her pleader.100
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.
99
Section 339B and 5/2 (1) ibid.
100
Section 353ibid.
101
Article 35(3), of the constitution of the People’s Republic of Bangladesh.
50
The accused has the right to adequate time and facilities for the
preparation of his/her defense. Though, there is no direct provision in
domestic laws in Bangladesh in this regard, accused can enjoy this
right in accordance with customs and practices of the court.
Particularly, it is seen that, when the court frames charge against an
accused person, he/she fixes a date for prosecution evidence. In this
respect, the court gives sufficient time to both the parties for raising
their defense.
8. Examination of Witnesses:
Right to examine witnesses is another important competent of fair trial.
This right is available for accused as well as for victims. Likely various
international instruments, the domestic laws of Bangladesh ensure this
right. According to sections 244 and 265G of the Cr.PC, the
prosecution can procedure his/her witnesses to prove his/her case.
Accordingly, the accused can cross examine such witnesses. Under
section 342 of the Cr.PC, an accused person has a right to be examined
and to explain any circumstances appearing against him/her in
evidence. As per section 340 of the Cr.Pc, an accused person has a
right to offer himself/herself as competent witness for defense.
51
interpreter also, because, he/she is also entitled to the right to get
justice.
102
Mahmudul Islam, Constitution Lawof Bangladesh, published by Mullick Brothers, Second
Ed. 2002, p218
52
11. Prohibition on Retroactive Application of
Criminal Law:
103
The same is stated in Article 4 of the protocol 7 to the European Convention and Article 20
of the Rome Statute.
53
4.5 CONCLUSION:
International standards of fair trial are numerously mentioned in our
constitution and are to be anonymous followed by judiciary. But in
practice, it is seen that, Bangladesh has failed to implement the
international standards of fair trial. The constitution of Bangladesh
provides equality before law104, right to equal protection of law105,
protection of right to life and personal liberty 106, safeguards as to arrest
and detention107, protection in respect of trial and punishment108 that are
similar to the international standards of fair trial. But the main law of
criminal procedure does not contain enough provisions to ensure fair
trial. According to the Cr.PC and the constitution of Bangladesh, the
accused person enjoy many rights as right to bail, right to legal
defense, right to silence, right to legal aid etc, on the other hand, the
complaint or prosecutor has only liability to prove his/her case beyond
reasonable doubt. However, the provision of victim and witnesses
protection are not sufficient in the Cr.PC.
104
Article 27 of the Constitution of the People’s Republic of Bangladesh.
105
Article 31, ibid.
106
Article 32, ibid.
107
Article 33, ibid.
108
Article 35, ibid.
54
CHAPTER-FIVE
CONCLUSION
5.1 INTRODUCTION:
It is fact that international organization, governmental as well as non-
governmental, both local and foreign, are more active and aware than
before for the protection and promotion of human rights. At the
beginning of 21st century human rights have received fuller
recognition, nationality and internationally. Now it is essential that
effective mechanism need to be incorporated so that all the states of the
world can strictly follow and observe the provisions of international
instruments on human rights. The states as well as the governments
must be made accountable in case of violation of these rights in their
territories. Besides, the most effective ways and means for the
protection of human rights, it is submitted, is that the victims of
violation of human rights must be recognized to protect against such
violations so that the violators will be morally weakened and the
oppressed will morally boost up and thereby active world opinion in
favor of the oppressed. The days are ahead when people will be more
conscious of their rights, as guaranteed in different international human
rights instruments and will be more organized for the protection and
promotion of their rights. The right to a fair trial of the accused being
eventually part of the human rights strategy most necessarily be
organized by the constitution and the law of every country to safeguard
the individual’s personal liberty against the autocracy and
authoritarianism of the Government.109 Therefore, the principle that
every person is to be presumed innocent until proved guilty by the
court dominates the criminal jurisprudential philosophy of both in
international laws and municipal laws of Bangladesh. On the basis of
the aforementioned irrefutable principles of criminal jurisprudence the
law-making body of Bangladesh has incorporated in the constitution
and criminal legislation a series of provisions with the object of
109
Batra. M, Protection of Human Rights in Criminal Justice Administration (Deep and Deep
Publications, New Delhi: 1989), (3).
55
safeguarding the interest of the accused. These provisions that have
been defined as basic human rights of the accused in any civilized
order have been examined and analyzed in the present study. Thus, the
findings of the study can be summed up in terms of significant right as
follows:
5.3 RECOMMENDATION:
The implementation of basic human rights is sine qua non for the
development of human civilization in the society. The rule of law is
essentially necessary for the protection and promotion of human rights.
In our forgoing discussion, we have mentioned that freedom, justice
and peace are considered as per-requisites of rule of law. Peace in the
society cannot be ensured without proper implementation of the above
mentioned elements of rule of law. It is needed to mention that state
110
United States Information Services (USIS), Dhaka Published a report on the state of human
rights in Bangladesh in 1999.
56
might have a written documented justice under the rule of law, but in
real sense of justice it is to be implemented and administered fairly,
impartially and properly. It is mentioned earlier that to ensure justice
all the elements of substantive or procedural due process should be
properly maintained and observed but at the same time another point
should be mentioned here that mere maintenance and observance of
substantive or procedural due process cannot be successful until and
unless there is enough co-operation from the competent authorities of
the government for proper administration of justice as well as for
implementation of basic human rights. In our country, the main
problem is that the government and its law enforcing agencies are
violating the human rights law frequently. If there is no remarkable
change in the attitude of the government and its agencies to ensure
justice properly, fairly and impartially, people’s legitimate expectation
regarding implement of human rights will be frustrated. So, to protect,
preserve and uphold the human rights values in the country, there is an
urgent need to develop trained manpower within the law implementing
authority. As the right to a fair trial of an accused person under
administration of criminal justice system has been accepted as basic
human rights, so, to ensure these basic human rights, our foregoing
discussion and findings can be concluded with following
recommendations:
1. It has been found that Article 33(1) of our constitution has been
inserted to safeguard people from arbitrary arrest and detention, so
for proper administration of justice any kind of arbitrary arrest and
detention by the police officer under section 54 of the code should
be prohibited and this section must be amended.
57
3. Since it has been found that for ensuring personal liberty of an
arrested person, anyone arrested must be informed of the grounds
of his arrest within short period such as, it may be within two or
three hours from the arrest for legal assistance and time limit for
production before a magistrate within 24 hours from the arrest
should be decreased and the maximum time limitation should be
within 12 hours from the arrest so that an arrested person can take
early opportunity of bail or discharge which is available to him.
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.
58
8. It can be recommended that if an accused is acquitted after
judgment, he should be compensated with a view to improving
proper administration of justice.
9. The foremost important thing which has been found is that speedy
disposal of cases is needed to ensure justice.
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.
111
55 DLR (2003) 363.
59
BIBLIOGRAPHY
LEGISLATION
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.
60
European Convention for the Protection of Human Rights.
Fundamental Freedoms 1950.
61
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.
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