Trial and punishment under the Constitution and the Code of Criminal Procedure
Provision of Article 35 of the Constitution of Bangladesh:
Article 35 is concerned with penal enactments or other laws under which personal safety or liberty of persons could be taken away in the interest of the society and it set down the limits within which state control should be exercised. This Article runs as follows:
Article 35: Protection in respect of trial and punishment
(1).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 form, that which might have been inflicted under the law in force at the time of the commission of the offence.
(2).No person shall be prosecuted and punished for the same offence more than one.
(3).Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.
(4).No person accused of any offence shall be compelled to be a witness against himself.
(5). No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
(6).Nothing in Clause (3) or Clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial.
This Article provides for certain tow rights in respect of trial and punishment. These two rights are protection against Ex-Post facto laws, and Double Jeopardy. These two rights are not a Fundamental Rights. But these are a special legislature for a criminal offence. It decided that the nature of the case. These two rights are explain bellow:
Protection against Ex-post facto laws:
Clause (1) of Article 35 provides a rule against retrospective criminal legislation. It secures to every person the protection against punishment for which have retrospectively been made offences. This law has been also enacted to prohibit convictions and sentence under ex-post facto laws. If a criminal law is amended after the commission of the offence committed by someone then the accused can not be adversely affected by this changing law like, the amended law as the criminal laws are generally prospective in operation not retrospective.
But at times, the legislature may give retrospective effect to a law that is to bring acts or commission, committed even prior to the enactment of the law in question. But according to this Article, a criminal law can not be retrospective so as to provide for conviction of a person for an offence which was not an offence at the time of commission of that act or to impose a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. As a matter of fact, when the legislature declares an act to be an offence or provide a penalty for an offence, it can not make the law retrospective so as to pre-judicially affect the persons who have committed such acts prior to the enactment of the law. These principles in Article 35 (1) have got explicit recognition in international law.
Protection against Double Jeopardy
Clause (2) of Article 35 provides that no person shall be prosecuted and punished for the same offence more than once. The principle is divided from the maxim “Nemo debet bis vexari” which means that a man must not be put in peril twice for the same offence. The concept was firmly established in section 403 of the Code of Criminal Procedure. In corporation of the concept in the constitution makes it a fundamental right taking away the power of parliament to provide to the contrary. The protection is a available only when both the proceedings are criminal proceedings and both the prosecutions are for the same offence. Thus when a person is acquitted or convicted of an offence, disciplinary proceedings for the same facts on which the previous prosecution was based is not barred as the disciplinary proceedings can not be treated as a prosecution for criminal offence.
Under this Article 35(2), which also provides immunity from proceeding before a court of law or a judicial tribunal of competent jurisdiction in which the accused was prosecuted. To say elaborately, if a government servant is punished by a court of law for a criminal offence then he will not be liable to take twice punishment for the same act by the court of law though he may subject to departmental proceeding for the same offence.
Thus the proceedings before the customs authorities is not a “prosecution” within the meaning of this clause. Prosecution means an initiation or starting of proceedings either by way of indictment or information in the criminal courts in order to put an offender upon trial. The prosecution must be with reference to the law which creates the offence and the punishment must also be in accordance with what that law prescribes. The limitation impose by clause (2) in article 35 would seem to apply when the accused is placed in jeopardy twice for the same offence. It does not prevent prosecution for a separate offence although the accused had already been tried for another offence having relation to the same subject matter. When a statue makes possession and prescribes separate punishments for each of the two offences, the prohibition in this clause will not apply though the same liquor may be involved in both offences.
Public Trial by an Independent Tribunal:
Every Court of justice is to remain open to all citizens as publicity is the authentic hall-mark of judicial as distinct from administrative procedure. Accordingly, 35(3) require public trial by an independent and impartial court or tribunal. The underlying object is to provide a fair trial and section 352 of the Code of Criminal Procedure provides for public trial. This does not mean that the court cannot restrict the admission into the court room of persons not connected with the trial where the necessity to do so arises. In fact, section 352 of the Code confers a direction on the court to restrict admission or hold the trial in the jail premises if the necessity arises. In the American jurisdiction, an accused has the right guaranteed by the Six Amendment to remain present at the trial. Even then the court, if confronted with a disruptive accused, may order him out of the court until he promises to behave.
The purpose of the public trial as required by the Fourteenth Amendment was to guarantee that the accused would be fairly dealt with and not unjustly condemned.
Clause (3) of Article 35 also guarantees to every person accused of a criminal offence the right by an independent tribunal. Though an accused is guaranteed a speedy trial, it is difficult to set down the time limit for trial in all cases. It is not possible, in the very nature of things and because of various factors coming into play, to draw a limit beyond which a criminal proceeding will not be allowed to go, any accused who is denied this right of speedy trial is entitled to approach the Supreme Court enforce his right to speedy trial and the Supreme Court, in discharge of its constitutional obligation, has power to give the necessary direction to the government for securing this right.
Fair trial which requires though the Code of Criminal Procedure makes provision for transfer of cases in case of reasonable apprehension of bias of the trial judge or Magistrate, to ensure trial by an independent court it is absolutely necessary to ensure the separation of the judiciary from the executive organ of the state. The requirement of fair trial may also involve legal aid for the indigent accused.
So, the fair trial and the speedy trial is a component of personal liberty and it is an obligation on the state by the mandate of Article 35(3) to arrange for speedy and public trial. It is also a fundamental principle of criminal justice that the prosecution must prove its case and accused cannot be a witness to make any statement against his will.
Protection against self-incrimination:
It is a fundamental principle of common law criminal jurisprudence that the prosecution has to prove its case and the accused can not be compelled to make any statement against his will. The principle emanates from the apprehension that without protection against self-incrimination, an accused would be exposed to coercion and torture. In the American jurisdiction the Fifth Amendment includes a prohibition against self-incrimination by an accused. The American Supreme Court extended this privilege to witnesses and also in civil cases. In American jurisdiction the privilege is not confined to the Courtroom and is available in all governmental proceedings. Under clause (4) of Article 35 a person who is accused of any offence can not be compelled to be a witness against himself. Article 20(3) of the Indian constitution is in the same language.
According to the Indian Supreme Court, the language “accused of any offence” qualifies the person entitled to the protection. The guaranteed is against compulsion to be a witness which includes making of oral or written statements in or out of court by an accused. Such statements are not confined to confessions but also to cover statements which have a reasonable tendency to point to the guilt of the accused. As to the extent of the protection against self-incrimination means that a direction against self-incrimination by the accused person. Self-incrimination must means conveying information based upon the personal knowledge of the person giving the information and can not include merely the mechanical process of producing documents in court which may throw a light on any of the points in the controversy; but which do not contain any statement of the accused based on his personal knowledge.
The protection being against any compulsion, Article 35(4) is not attracted in the case of a confession which must be voluntary and without any inducement. But the number of confessions has increased manifold in criminal prosecutions creating doubt as whether those confessions are at all voluntary.
So the protection of clause(4) of Article 35 is not merely available against the use of torture by the police, but can be claimed against all forms of compulsion which may be resorted to for making a man convict himself. No inference of lack of honesty can be drawn from invocation of the privilege deemed worthy of enshrinement in the Constitution.
Protection against Torture and Degrading or Inhuman Punishment:
The Eight Amendment of the American Constitution contains a prohibition against cruel and unusual punishments. In clause (5) of Article 35 prohibits torture to the accused or the infliction of cruel, inhuman or degrading punishment or treatment upon him. This provision ensures that the power to punish is exercised within the limits of civilized standards. The theory of the citizens have protection against torture is adopted in our constitution by the Article 35. It is a fundamental right in the country. The irony however is that there is unimaginable differences between theory and practice. The extent of brutality forced upon the people by the law enforcement agencies is of such nature that due to sheer fear the ordinary citizen is afraid to complain against torture. Even if one dares to complain there is still no law criminalizing torture that could guarantee prosecution.
Article 35(5) also prohibits cruel, inhuman or degrading punishment in the training of the law enforcement personal, public officials, but article 35(6) takes a penal law out of the purview of article 32 as regards reasonableness of a prescribed punishment. Section 303 of the Penal Code providing for mandatory death sentence has been declared by the Indian Supreme Court to be void being violative of article 14 of the Indian Constitution.
The principle of harmonious interpretation requires that in case of conflict between two provisions, a constitution should be given which permits both the provisions to have effect. It may be reasonably argued that a punishment may be arbitrary or unreasonable even without being cruel, inhuman or degrading and the bar of article 35(6) will be attracted. Only if a punishment is challenged as cruel, inhuman or degrading and the bar is not applicable in respect of challenge under Article 27 or 37. The punishment prescribed by sec. 303 of the Penal Code without being cruel, inhuman or degrading is arbitrary in that it takes away the discretion of the court even when there are extenuating circumstances.
In the above view, Art. 35(5) prohibiting torture or cruel, inhuman or degrading treatment, the very system of ‘remand’ for the purpose of interrogation and extortion of information by application of force is totally against the spirit and explicit provision of the constitution. The court found infringement of fundamental right by colourable exercise of power under s.54 or under s. 167 of the Code of Criminal Procedure and the court made important recommendations in respect of the exercise of the power under various provisions of the Code of Criminal Procedure including the power under s. 54 and 167.
So this provision is used to protect police and joint operations units from prosecution for human rights abuses.
The application of the Constitution in criminal trials:
One who has taken a critical Look into the country’s criminal justice system will acknowledge that the problem of injustice prevailing therein is not trivial. While the government’s and prosecution authorities failures to uphold the constitution in criminal processes have been being increasingly challenged in recent times, the degree of reliance on basic constitutional safeguards seems to be less than proportionate to legal breaches in criminal processes.
A particular area of concern is unlawful arrests, prolonged detention beyond the statutory and constitutional timeframe, unlawful searches and seizures, torture in police custody, and other forms of police abuses and atrocities. These clearly unconstitutional abusive practices are the most common sources of violation of human rights of the accused and they attack at the very heart of his right to a fair trail. Yet instances of striking down the whole trial on the ground of unfairness caused by any of them are lacking. Some important points of the invocation of accused pensions in criminal trail are explained bellow:
The Rights to defense, and to legal assistance:
The above cases are concerned with rights in the category of the right to defense. The Higher Courts have generally been found keen in remedying the breach of this right. In addition to the arrestee’s constitutional right to consult and be defended by a lawyer at the time of arrest, which arguably spills over into the trial process, Section 340 of the Code of Criminal Procedure, 1898 provides that any person accused of an offence before a criminal court may of right be defended by a pleader.
A pre- Indolence legislation, namely the legal Remembrance’s Manual, 1960, provided that every accused person charged with committing an offence punishable with death shall have legal assistance at his trail at state expense when he cannot afford to appoint a lawyer.
In Babu Khan, the HCD sitting in appeal drew on the combined force of the above provision of the Manual 1960, section 340 of the CrPC, and Art. 33 of the constitution, and recognized that the accused’s right to be defended by counsel in a case punishable with capital punishment is an ‘inalienable’ and ‘fundamental’ right, non-compliance with which renders the trial, judgment and conviction unlawful. Curiously, such a declaration of unlawfulness or the vitiation of a trial does not in practice lead to the accused’s acquittal but to his re-trail.
In the case of concerning the right to defence, in Abu Bakkar Sidiqui and Others v. State,an accused was awarded murder conviction even though no charge of committing murder was initially framed against him. This kind of judicial mistake meant that the accused was effectively deprived of the right to defend himself and thereby of the constitutionally based right to receive a fair trial.
But the constitutional safeguards in Arts. 35 and 32 right to life were not invoked in this case by either the defence or the courts, although the HCD on appeal rightly acquitted the accused.
Fair trail, and the pre-and-post-trail rights of the accused:
The concept of fair trial includes the fairness in both pre-trial and post trial stages. Prolonged incarceration of the accused persons pending their trials raises concern regarding the procedural fairness as well as their right to speedy trial, and thus implicating several constitutional safeguards.
In BLAST v. Bangladesh,the court stressed the human rights of under-trial prisoners, entitling them to be released on bail, or to get their charges withdrawn. Moreover, the objective of giving expression to the accused’s right to a speedy trail often latently acts in influencing the judicial discretion to commute sentences, especially the death penalty, or to grant his bail when delays have occurred in a trial or there is a failure to conclude a trial within a statutory time frame.
As regards the rights of post-trial prisoners, the HCD in Faustian Pereira v. The State and others, adjudged the detention of prisoners in jails after they have served out the sentences as a violation of their fundamental rights guaranteed in the constitution, especially the right to life. The legal sustainability of this interpretation is open to doubt, because section 35A is a general provision concerning a post-trail concession to be enjoyed by prisoners who have spent in custody a considerable time before their trails. The object of this is to compensate the accused delays in his trial in response to his constitutional right to have a speedy trial, irrespective of the law governing his offence.
Right to freedom from torture:
Right to freedom from torture is the most important subject to any kinds of arrest or detention. Torture has been widely condemned and is absolutely prohibited by every relevant human rights or every relevant of fundamental rights instrument, since the Universal Declaration of Human Rights, 1948, violations of this prohibition are considered so serious that no legal justification may ever be found, every in time of emergency or conflict. Internationally torture is considered among the highest forms of crimes, the gravity of which is comparable to crimes against humanity and war crimes. The jurisdiction against torture is not confined to domestic court, but is extended universally. In this reality torture remains a problem of great magnitude in the world.
Now days, Torture is considered as mother of human rights violations. It is basically a violation of all human rights-whether civil and political or economic, social and cultural, religious, in digenous collective or group rights. But as it is the worst forms of human rights violations, which principally attack on the rights to personal integrity. In this above view, generally torture means any act by which sever pain or suffering whether physical or mental, of a person.
Despite the accused’s constitutional right to remain silent and not to be self-incriminated and the total Constitutional ban on torture under- pained by Bangladesh’s concerned international obligations, the police often take resort to torture to extract confessions from the accused or for other purposes. Court themselves are aware of the fact torture has become deep-seated in the country’s criminal process, and have often admonished police torture. Nonetheless, there is simply not enough activism on the part of the court to outlaw torture or brutality from the country’s criminal justice system.
Two legal provisions relating to arrest and criminal investigation by the police have been the premier sources of misuse of police power, often ending up in atrocities. These are ss.54 and 167 of the Code of Criminal Procedure. Section 54 empowers the police to arrest without warrant any person on some widely worded grounds such as reasonable suspicion of the commission of crime, while s. 167(2) authorizes the concerned magistrate to order further detention of the accused in such custody as he thinks fit, and not exclusively in police custody, when the investigation can not be completed with in twenty four hours.
So, as already seen Arts. 33 and 35 of the constitution guarantee every arrestee’s rights to be informed of the grounds of his arrest, to consult and be defended by a legal practitioner, and to freedom from self-incrimination, torture, and inhumane punishment.
Inadequate focus on right to liberty and security:
It appears from the above that the accused’s right to liberty and the issue of ‘dignity and worth’ of his person have received inadequate attention from the bar and the bench. To take an indicative instance from the area of unlawful searches, my search in the principal law reports of the last 15 or so years have yield one result in which a constitutional remedy was issued against an unlawful search. In Mohammed Ali V. Bangladesh (2003) Police searched the house of a renowned journalist without warrant and during midnights on repeated occasions. The HCD found the police liable for ‘excesses in abuse of their power’ in the name of search and thereby for causing loss, injury, humiliation and harassments to the petitioner. This led the court to award what it called token compensation of 5000 taka against each to the two concerned police officers personally.
Also, in cases of false imprisonment arising from judicial mistakes, or gross prosecutorial negligence, or malicious prosecution, the constitution has hardly been invoked by those defending the victim’s liberty.
Constitution provisions in challenging certain penal laws:
A contemporary legislative trend in Bangladesh is to enact harsh penal laws providing for severe and often disproportionate punishments to suppress offences or combat the rate of crimes. Ironically, these laws have often seriously undermined the constitutional principle of justice and the due process of law. These new ‘harsh’ criminal laws along with some other colonial and pre-Independence statutes, constitutionality of which is doubtful, tend to create serious human rights implications for those accused under these laws. In this sub-section I analyse how the Constitution of Bangladesh has been invoked to challenge the legality or vires of certain penal laws. Although some laws analysed here have either already lapsed or been repealed, an examination of their constitution-compatibility provides an important insight to the nature of criminal law making and to their constitutional impacts. There are some certain penal laws are given bellow:
The Special Powers Act, 1974
The Special Powers Act, 1974 has so far been the most infamous piece of legislation in Bangladesh, telling upon the liberty and human security of the people. A tow way knife, this law provided for the administrative detention of anyone virtually for an indefinite period in anticipation of his engaging in certain vaguely defined prejudicial activity, and criminalized certain action, providing for severe punishments and special tribunal for trial. While the constitutionality of its provisions for harsh punishments for ordinary offences such as hoarding and for trial by special tribunals has not been questioned in trials, the Act’s exclusion of superior courts’ oversight over special tribunals was challenged in Sahar Ali v A. R. Chuwdhury (1980). Section 30 of the SPA barred “any court” from revising any order or judgment of special tribunals established under this Act, with the effect, inter alia, that death sentences passed by these tribunals became ousted from the High Court Division’s automatic power to determine the legality or otherwise of any capital punishment.
The power of the High Court Division that the High Court division is enable to confirm the sentence or pass any other, as he thinks fit or may change the period of punishment or can free the accused person who is treated guilty in the eyes of the subordinate to him, and all this conditions is discussed in section 376 of the Code of Criminal Procedure. This is note only deprive the accused person of having an access to an independent higher court, it also seriously impinged on his right not to be deprived of life except in accordance with law.
These constitutional rights escaped adjudication in Sahar Ali, but in a bold assertion of its judicial authority; the HCD held that its constitutional supervisory or review power could not be ousted by an ordinary law. Following prolonged passivity on this important issue, sometimes marked by a complete failure to discharge the constitutional role, the HCD in Sahar Ali finally made an intense review of the above ouster clause and held it unconstitutional for, among other things, placing the tribunals “outside the purview and of the Supreme Court”. Following this welcome decision, s. 30 of the SPA was amended providing for appeals to the HCD form decision of a special tribunal and for the confirmation by the HCD of death sentences passed by such a tribunal.
Mention should be made here of a jurisdictional bar in s.34 of the SPA, precluding “any Court” from questioning any “order made”, or “proceedings taken” under the Act. In addition to detention orders, even unlawful convictions by a special tribunal were perhaps sought to be made immune from judicial review.
The Public Safety (Special Provision) Act, 2000(Jono Nirapotta Ain, 2000)
The Public Safety (Special Provision) Act, 2000 (hereafter the PSA) contained certain provisions which are at stark conflict with the accused’s right to be fairly treated and other constitutional rights. For example, s.16(2) provided for compulsory denial of bail to the accused until the period of investigation ends, while s.18(b) provided for the recording of summary evidence and s. 24(1) barred challenges of any action or order by a special court otherwise than though an appeal. The dangers which such a harsh law might pose to higher constitutional values of a nation such as the rule of law and human dignity is well captured in this law.
In this background, the constitutionality of the PSA was challenged in Afzalul Abedin and Others v. Government of Bangladesh and Others (2003) that culminated in a split decision by the HCD in which one judge declared the PSA unconstitutional while the other struck down only certain of its provisions. A tow- pronged attack was not made vis-à-vis the constitutionality of the Act: (i) that, although it was not a money bill, the PSA was passed in Parliament as a money bill, which being a fraud on the Constitution renders the Act so passed unconstitutional, and (ii) that, by interfering with principles of criminal justice, the PSA has violated fundamental rights provisions of the Constitution and hence void. To remain within the scope of this essay, we shall confine the rest of the discussion to the second prong of the objection.
It was argued by Counsels that the PSA denied due process by permitting the selective law enforcement or selective prosecution, by providing for the scope of prosecuting the same offence under tow different statutes. Terming the PSA as a ‘charter of arbitrariness’, Consul Dr. Kamal Hossain, in particular, argued that the legal right of bail has a constitutional coverage and the denial of bail under s. 16 of the PSA is, therefore, tantamount to a violation of Art.33(2) of the Constitution, which virtually empowers the magistrate to determine custody of an arrestee. Moreover, it was further argued, the Criminal Procedure Code through its Ss. 60 and 340 incorporated tow fundamental principles of criminal justice, namely the rights of the accused to be promptly produced before a magistrate and to be defended by a counsel, which imply the accused’s right to be freed on bail through the judicial process pending the trial, to which s. 497 of the Criminal Procedure Code gives effect. The purpose of incorporating these principles of the CrPC into the wider spectrum of Art. 33 of the Constitution is to limit Parliament’s power to abrogate them. The PSA, it was argued, exceeded this limit by being vague, unreasonable, arbitrary, and lacking in guidelines and objective standards for the purpose of its enforcement, and also by breaching the substantive due process requirement, and also by breaching the substantive due process requirement under Art. 31 of the Constitution. Finally, it is hardly escapes one’s notice that his Lordship was extremely reticent about the PSA’s impact on fundamental rights, but rather remained anxiously and overly concerned with the principle of presumption of constitutional validly of any impugned law.
The Suppression of Violence against Women and Children (Special Provisions) Act, 1995
Apart from providing for harsh punishment, the now repealed Women and Children (Special Provision) Act, 1995 (hereafter the Act of 1995) provided for denial of bails until the completion of investigation. Curiously, the unjustness or the Constitution- incompatibility of this Act never become an issue for judicial scrutiny either independently or as a collateral question in any trial until a minor boy received the death sentence.
In BLAST v. Bangladesh (2005), which is pending till date, s. 6(2) of the 1995 Act providing for the mandatory death penalty for the offence of ‘rape and murder committed by ‘any person’ was challenged on the ground that capital punishment for children is unconstitutional for breaching Arts.7,26, 31, 32, and 35 of the Constitution. Interestingly, this judicial review has been sought following the Appellate Division’s refusal of an appeal by one Sukur Ali, a juvenile death-penalty recipient, against his conviction imposed by the concerned special tribunal and subsequently confirmed by the High Court Division in state v. Sukur Ali (2004). While we shall probably have to await the HCD’s decision in BLAST v. Bangladesh (2005) for some more time, it would be interesting to see how the court deals with the perplexing and disturbing issue of imposing death sentence on a minor.
The Act of 1995 epitomises a failure of the legislature to comply with constitutional rights and international human rights obligations, the case of Sukur Ali, at both HCD and AD levels, shows a serious failure on part of the judiciary to uphold human rights in criminal law adjudication, or to constitutionalise substantive criminal law. Much appreciably, however, in the most recent case of the State v. Md. Roushan Mondol @ Hashem (2007) in which a youth offender was convicted with the death penalty by a non-juvenile special tribunal, the HCD disapproved of the Sukur Ali dictum and compensated its jurisprudential deficiency by holding that a youth offender’s right of trial in a juvenile court is a special right of “universal application” which, having a constitutional coverage under Art. 28(4), remains untainted by any special law like the Suppression of Violence against Women and Children Act, 2000. Promisingly, the Court’s reasoning was informed of the spirit of the Constitution and of standard procedural safeguards under international human rights standards.
The Law and Order Disruption Criminals (speedy Trial) Act, 2002 (the Speedy Trial Act)
The Law and Order Disruption Crimes (Speedy trial) Act, 2002 (hereafter the STA) is just another example of the tendency of over-criminalisation of act. Like the above-mentioned statutes, the STA too seriously impinges on the accused’s right to a fair and just trial, for example, by providing for summary and exceedingly speedy trial. The constitutionality of the STA was challenged in 2002, and the Court issued a rule nisi on 23 June 2002 asking the government to explain why this Act being “inherently prone to arbitrary and discriminatory application” should not be declared unconstitutional. This constitutional challenge still remains pending.
Nevertheless, it is worth analyzing the STA’s constitutionality which is open to serious doubt on the question of the fundamental rights-compatibility. However, given that the Constitution provides for the right of the accused to have a speedy trial of his charge, the question is how the Act has been in conflict with the constitutional principles of fairness and justice. Writing in 2004, Islam and Solaiman have argued that the Act has compromised with the accused’s right to have sufficient time to prepare his defences by providing for a 7 day timeframe for the police to complete the investigation and a 30 day timeframe running from the date of submission of police report for the Court to complete the trial.
In a common law adversarial system of trial, these authors argued, the parties must be effectively represented by legal counsels which necessitates that the accused has a proper defence which is virtually impossible to ensure within this rigid timeframe and with the serious inadequacy of infrastructural and, resource facilities. As we know, despite the Legal Aid Act, 2000 an effective legal aid regime for the people accused of crimes is also absent in Bangladesh.
Therefore, the argument that the STA is inconsistent with constitutional safeguards thus appears logical. There is a growing recognition elsewhere that “a defendant may waive the statutory right to a speedy trial” in the interest of justice. From the context of Bangladesh, it seems therefore that the better way of providing for a constitutionally sustainable scheme for speedy trial, which may prove counterproductive for justice, and an unreasonably tardy trial which would yield injustice.
The General Clauses Act (1897)
When a person do any act and that act or omission constitutes an offence under tow or more enactments or laws and the liability of the offender shall be prosecuted in any of those laws or enactments and also be punished according to that law or enactment. No provision does permit to give punishment to the offender under twice or more laws. Section-26 of the General Clauses Act will not bar two trials in respect of the two offences. But Section-26 prohibits to give punishment for the same set of facts under two section. In the case of identical definition of the offences, the court can select the law of choice to convict the accused. We can see it in the case of Bhagwagir Mukundgir v. State, Here in the decision of the case, it is clearly stated that the court has option which section or law under which the court trial.
Section 26 has no bearing upon the question whether prosecution should be started for an offence which required no section although the facts mentioned in the complaint might eventually disclose an offence which required sanction. It says of an offence under two enactments and it says that the offender can be liable to be prosecuted under either of those enactments. This decision is seen in the case KP Sinha v. Aftabuddin
Accused can not be sentenced under Section 161, P.P.C. and also under Section 5(2) of the Prevention of Corruption Act, though his conviction under tow section is valid in view of Section 235 clause (2) of the Criminal Procedure Code. It is a case of the same act constitution offence under tow different statutes and as such is general clauses Act and this method is followed in the case Mohd. Yusuf v. The Crown, .
The Use and Abusing Law of Confession under the Constitutional law of Bangladesh and the Code of Criminal Procedure 1898
One of the many laws that are abused by some quarters of the Justice system is the law pertaining to confessions. The general practice is that if a person confesses, it makes the work of the investigators easier. The laws dealing with confessions and attempts to highlight the reasons why many criminal cases are concluded based solely on the basis of confessions of the accused. Attempts have also been made, through interviewing several Lawyers, Magistrates and human rights activists, to find out the methods used by police and the magistrates in order to extract a confession and what improvements can be made to the laws in order to safeguard the rights of the accused person.
Constitutional Rights and confessions:
The constitution of any country is the highest law of the land and, according to at least the Constitution of the People’s Republic of Bangladesh, all other laws that are inconsistent with the constitution shall, to the extent of the inconsistency, be void. Article 35(4) of the Constitution talks about self-incrimination. The Articles states: no person accused of any offence shall be compelled to be a witness against himself.
The main objective of Article 35(4) is to protect an accused person from any compulsion to make self-incriminating statements, including confession. Here, Self-incrimination must mean conveying information. According to the Law, no one can be forced to do this. Thus, the operative word here is compulsion, which may be translated to mean duress.
In order to gain the protection of Article 35(4) of the Constitution against testimonial compulsion, it must be proved that the accused person made his statement under compulsion and that it was not voluntarily given. This rule is also reflected in the laws that govern the making and recording of confession the Code of Criminal Procedure, 1898 and the Evidence Act 1872. These Laws make it mandatory that the confessional statement must be freely given without any duress or threat or compulsion.
According to Mahmudul Islam, the Protection under Article 335(4) of the constitution being against any compulsion, Art 35(4) is not attracted in the case of a confession which must be voluntary and without any inducement. But the number of confessions has increased manifold in criminal prosecution creating doubt as to whether those confessions are at all voluntary.
The laws Governing Confessions in the Code of Criminal Procedure, 1898
The Code of Criminal Procedure, 1898 and the Evidence Act, 1872 contain the laws pertaining to confessional statements. Section 164 of the Code of Criminal Procedure, 1898 contains the requirements necessary in this regard, under the heading ‘Power to Record Statements and Confessions’. The section lays down the following requirement:
(1) Any metropolitan Magistrate, any Magistrate of the first class and any
Magistrate of the Second class empowered by the Government to do so, may record any statement or confession made to him in the course of an investigation or at any time afterwards before the commencement of the inquiry or trail.
(2) The statements are recorder and signed in the manner provided in section 364 of the Code of Criminal Procedure 1898, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired or tried.
(3) Before recording the confession, a Magistrate has to explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him.
Section 364 of the Code of Criminal Procedure, 1898 deals with the ways in which the statements made by the accused person must be recorded by the Magistrate or judge. The confession also has to be signed be the accused. The section is only applicable when the person examined is the accused. In the matter of Mosammat Amena Khatun v. State it was held that:
When a confessional statement has been recorded by a Magistrate after complying with the provision of section 164 Cr .P.C. the said confessional statement can be admitted into evidence by the trial court under section 80 of the Evidence Act even without examining the recording Magistrate.
The Code of 1898 provides that a confession ‘shall not be made to a police officer’ and that it must be made to a magistrate. It also lays down that ‘the Magistrate must record it in the prescribed format and only when so recorded does it become relevant and admissible in evidence. There are many instances where this provision has been upheld in the courts of law. In the case Abul Hossain V. The state, it was held:
Provisions under section 164 and 364 of the Criminal Procedure Code are mandatory and required to be strictly followed to make a confession voluntary and true and fit for reliance for convicting the accused on his confession. The form used to record the confessional statement by the magistrate is itself a small law booklet.
Confession under the Evidence Act, 1872
According to Section 24 to 30 of the Evidence Act, 1872, discuss ‘confessional statement’, and the provisions may be given into the following discussion:
Section 24 of the Evidence Act, 1872 states that in a criminal proceeding, a confession would not be accepted and deemed irrelevant, if the court demes that the confession was; caused by any inducement, threat or promise having reference to the charge against the accused person; proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused personal grounds which would appear to him reasonable for supporting that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
Section 25 of the Act of 1872 states that no confession to a police officer ‘shall be proved as against a person accused of any offence’. That is if an accused person makes a statement admitting his guilt to a police officer that is an extra judicial confession it will not be legally recognized as a confession.
The law is not blind to the fact that to prove a crime, a statement from the accused is not enough. Therefore, section 27 of the Evidence Act 1872 states that if an accused person makes a statement to a police officer, when there is no Magistrate present, and if, based on that statement, the police recover material evidence, the part of the accused statement relating to the recovery of such material evidence will be receivable in the court.
So, a confessional statement cannot be the overwhelming reason to convict an accused person. Moreover, given the practice of police coercion, especially when the accused is in remand, there are serious doubts as to the frame of mind of the accused when he made his confessional statement. ‘Voluntary statements of guilt’ is a vital pre-requisite for the admissibility of a confessional statement.
However, the constitution makes it clear that no one must be compelled to be a witness against himself and that no one must be subject to cruel, degrading and inhuman treatment. What is now necessary is the proper and effective implementation of these laws, and if necessary, their amendment, in order to ensure that a person on trial is innocent until it can be proven that he is guilty.
Bangladesh Legal Aid and Service Trust (BLAST) v. Bangladesh and Others
The case is one of the important issues for the arbitrary arrest and detention.
The writ petition has been filed by the petitioner including Bangladesh Legal Aid and Services Trust (BLAST), Ain-O- Salish Kendra, Shamilita Shamajik Andolon and some other individuals. The subject matter involves a burning question of the day which is now hotly debated by the intellectual quarters, lawyers and even the general public. It has been alleged in this writ petition that the police, by abusing to power given under Section 54 of the Code of Criminal Procedure, has been curtailing the liberty of the citizens and that by misuse and abuse of the person of taking an accused into police custody, as given in Section 167, has been violating the fundamental rights guaranteed under different Articles of the constitution. In this writ petition, several instances of such abusive exercise of power and violation of fundamental rights have been narrated.
There are no direct judgments pronounced in this writ petition. Here, the Honorable High Court Division gave some direction as recommendation upon the respondent No. 1 and 2 to implement that and it was also said at the same time that the recommendations given by the learned court implemented within six month. All the respondents are also directed to implement the directions made above immediately. Saifuzzaman v. State
The petitions that the detenu Liakat Sikder is a student of Dhaka University and President of Bangladesh Chattra League and the detenu Md. Rafiqul Islam Kotwal is also a student of Dhaka University and Vice President of Bangladesh Chattra League. They have long political background and are involved in active politics of Bangladesh chattra league and played major role in all movements, serving the cause of liberty, democracy and in achieving those, they served their party with dedication. On 25-02-2002 while the detenus coming out of Sudha Sudan, of Road No. 5, Dhanmondi Residential Area, they were arrested by the Dhaanmodi Police under section 54 of the Code of Criminal Procedure, shortly the Code, in connection with DB office GD Entry No. 1356 date 26-02-2002 along with other activities of Bangladesh Chatra league. The detenus were forwarded to the Chief Metropolitan Magistrate, Dhaka on the same day with a prayer for taking them on police remand for 7 days. It was stated in the police forwarding report that a proposal for their detention under the Special Powers Act, 1974, Shortly the Act, had been made to the authority. The Chief Metropolitan Magistrate enlarged them on bail to be effective on 04-03-2002, if no detention order had been made in the meantime. They were, however, remanded to the judicial custody. In the meantime, the detenus were communicated with the order of detention on 27-02-2002, against which, they moved this court in criminal miscellaneous case NOs. 2400 of 2002 and 2405 of 2002 respectively. This court declared the orders of detention illegal and directed for release of the detenus by judgment and order dated 23-03-2002. During the pendency of the said Rules, the detenus were shown arrested in Ramganj Police Station Case No. 13 dated 23-09-2001 on the basic of a wireless message made by the officer-in-charge, Ramganj Police Station.
In view of discussion, after a long argument between the two learned Advocate, the Honorable High Court Division set aside all the GR Case, which was arising out of the different dated in various police station and at the same time, the High Court Division released the detenus of their bail bonds.
Professor Ghulam Azam v. Bangladesh.
The petitioner is that he is a citizen of Bangladesh by birth and was born in Dhaka on 22.11.1922 and was a permanent resident of the territories now comprised in Bangladesh on 25.03.1971 and continues to be so. He left Bangladesh on 22.11.1971 for lahore and could not come back to Bangladesh in spite of his best efforts. While he was outside the country he was disqualified to be a citizen of Bangladesh by a Notification date 14.04.1973 along with others while he was in London. In response to a Notification of the Government of Bangladesh made on 17.01.1976 the detenu-petitioner applied for the Bangladesh Citizenship on 20.05.1976 to the Secretary, Ministry of Home Affairs for restoring his Citizenship. Thereafter, he had sworn in an affidavit showing allegiance to Bangladesh as asked for. He came to Bangladesh on 11.07.1978 with Pakistani Passport and with a no objection letter issued by the Government of Bangladesh and with a visa for a short period. The detenu-petitioner always considered himself as a Bangladesh citizen by birth and a permanent citizen of Bangladesh and never acquired any other nationality and used Pakistani passport as a travel document to facilitate his stay abroad and to travel to his own land. Since then the detnu-petitioner has been living in Bangladesh and he got his visa extended twice. He made an application for registration as a Citizen of Bangladesh in form `D’ after surrendering his Pakistani Passport. The detenu-petitioner has been living in Bangladesh with all his family members, and his wife. Sons and daughter are in Bangladesh although. There is no case or even any allegation registered or lodged in any court or police station against the detenu-petitioner or any where in Bangladesh touching his conduct. There is no allegation that any activity of the detenu-petitioner is prejudicial to Bangladesh. On 24.03.92 a contingent of Police arrived at his residence and broke the front gate, awoke the detenu-petitioner in the early hours and served a notice dated 23-03-92 asking him to show cause by 10:00AM on the same day as to why he should not be deported from Bangladesh and other legal actions should not be taken against him. The detenu-petitioner submitted a reply asserting that he is a citizen of Bangladesh by birth and that the said notice was not binding of him. On the same bay an about 11:30PM the detenu-petitioner was taken to Dhaka Central jail and the impugned order of detention was served on the detenu- petition, a copy of which has been filed as Annexure N to the petition.
In this view of the matter, The Honorable High court Division declared the judgment in this cause by pronouncing that the detention of the detemu professor Ghulam Azam son of late Moulana Ghulam Kabir, is declared to be without lawful authority. The respondents are also directed by the Honorable High court Division to set the detenu, professor Ghulam Azam now detained in Dhaka Central jail, at liberty at once, if not wanted in connection with any other case.
Abul Hossain v. The State
That informant PW 1 was a passenger of Bus No. Dhaka-Ja-3508 Rupashi Paribahan. He got up in the said bus at about 18.00 hours on 9.5.86 from Mirzapur Bus-Stand for going home. The said bus left Mirzapur for safipur. One miscreant in the guise of a white dressed passenger got up in the bus at Hatu-Bhanga stoppage and sat down by the side of the informant. The said bus when arrived at Beltoil stoppage the said miscreant suddenly stood up and gave a whistle and asked the driver of the bus to stop it and put off the light. Accordingly, the driver stopped the bus and put off the light. Then approximately 9/10 unknown dacoits who were within the bus in the guise of passengers committed dacoity and looted away money and other articles of the passengers, in all worth taka 30,945.00 and it occurred at about 9:45 at night. The dacoits according to the informant were armed with dagger and torch light. One of them threatened the passengers by uttering: “Rascal, give me money, otherwise I shall kill you with this dagger”. At that time the informant tried to get out from the bus but the dacoit who gave whistle fastened him with the rope of the whistle and in the meantime another dacoit snatched away taka. 1300.00 from pocket in the informant. There after the informant got down from the bus and raised hue and cry by saying that dacoity was being committed in the bus. Hearing the alarm of the informant, a large number of people came near the bus and the informant also came to the bus along with others and saw that the dacoits had already left the bus with looted articles after committing dacoity. The informant came to know from one of the passengers Abdur Rashid, that he was sitting over the roof of the bus with a bundle of pice-cloths along with passengers namely Fazlur Rahman, Somejuddin and some others also were sitting with him on the roof of the bus; that the helpers of the bus snatched away the said bundle of pices-clothes, and gave the same to the dacoits, some of whom caused grievous hurt to the passengers and snatched away cash money. Wrist watch, clothes, etc. from the passengers. Thereafter, the informant along with the bus and other passengers, namely, (1) Abdur Rashid, son of Meher Ali of village Chitteswari (2) Fazlur Rahman, Son of Meher Ali of the same village (3) Nurul Islam son of Sukur Mamud of village Uttar Palua, (4) Moniruzzaman, son of Azizullah, Village Palua (5) Joynal Mia, son of Karim Mia of village Uttar Palua and (6) Somejuddin, son of Salimuddin of Village Uttar Pekua, all of PS. Mirzapur, District- Tangail came to the Mirzapur PS. for lodging the FIR. Driver Mati Mia of the said bus on query subsequently stated that there were five helpers in the bus out of four were (1) Gafur, (2) Fazlur (3) Amir Hamza and (4) Abdus Salam. None of the helpers was found on the spot and the diver of the bus also left the place of occurrence just after the occurrence and as such the passengers of the bus suspected that the dacoity was committed by the dacoits in collusion with the said helpers and the driver; that commission of the decoity was completed within 5/6 minutes and the dacoits had lungi, Shirt and pant put on their bodies. The dacoits went towards the south- eastern direction after committing the dacoity, and their approximate age would be between 20 to 40 years and some of them were black and some of them were between black and white in colour. Later on the informant came to know that the dacoits had caused grievous hurt to one school teacher of Hatu Bhanga School and another woman passenger of the said bus and the informant would be able to identity to dacoits if he could see them again. In the FIR he also gave a list of the articles looted away from the passengers of the bus by the dacoits.
The informant further states that he was not aware of other articles which had been looted away by the dacoits from passengers. The ejahar was read over and explained to the informant who admitted it to be correct and thereafter put his signature there on the above allegations made in the ejahar, the OC Mirzapur Police Station Md. Redwan Ali recorded the FIR and started the aforesaid case under sections 395/397 of the Penal Code and entrusted the case to SI Md. Rowshan Ali to hold the investigation of the same.
The Honorable High Court Division pronouncing the judgment by saying that all the appeals are allowed. The impugned judgment and order of conviction and the appellants are allowed. The impugned judgment and order of convention and sentence are set aside and the appellants are acquitted of the charges brought against them direct that the appellants be set at liberty at once, if not wanted in connection with any other case.
Habiba Mahmud v. Bangladesh and Others
The appellant’s husband, Kazi Mohamood Hossain, was arrested on August 20, 1991 in pursuance of an order of detention date August 18, 1991 under section (3) (1) (a) of the Special Powers Act, 1974.
In the grounds of detention it is stated that the detenu had been engaged in various anti-social and lawful activities, and for that there was resentment and hatred against him in the minds of the public. The detenu was previously detained twice from April 1982 to April, 1983 and from November 1984 to March 1985. In November 1988 another order for his detention was passes, but the detenu evaded arrest by going over to India. For his oppressive and terrorist activities the detenu was suspended form the post of chairman of kotwalipara upozila. So that nobody dares raise any objection against him, the detenu organized an armed illegal bahini known as the Special Army and that bahini is still existing. The detenu’s terrorizing activities were cruel and barbarous. He himself gouged in public both the eyes of one Kowsor Molla., keeping himself inactive for some time after the fall of former Earshed Government the detenu has resumed his various anti-social and terrorist activities and is causing serious deterioration in law and order situation. If a turbulent man like him is kept outside it would be a threat to general law and order in the country. There is a rider in the grounds that the disclosure of any other fact other than those disclosed in the grounds is considered to be against the public interest.
In view of the above, I hold that the detenu Kazi Mahmood Hossain MontooKazi is being detained without lawful authority. The judgment and order of the High Court Division is set aside. The appeal is allowed, but without any order as to costs. The detenu be released forthwith, if not wanted in connection with any other case.
The fundamental Rights, guaranteed by part III of the Constitution of Bangladesh are not ‘natural’ rights but such rights as will be enforceable by courts. They are a part of the positive law of the land. While the aim to govern and control the absolute power of the state in imposing restrictions on the freedom of the governed, they are as we have seen, for the most part qualified not absolute rights, but how far the Constitutional protection of such rights will constitute an effective shield against any future executive arbitrariness and legislative invasion. As the fundamental rights contained in the constitution of Bangladesh are to some extent contingent. Fundamental rights basically these three rights namely, in article 32 33 and 35 are not so liberal. These rights are so much conflicting rights with the Code of Criminal Procedure.
The foregoing discussion reveals that the criminal law and the constitution nexus in Bangladesh stands on a loose footing and that and that the fundamental rights of the accused and the safeguards the constitution accords to him have note yet become a central focus of the country’s criminal law. Conducting a defending criminal cases in Bangladesh are found to be largely of traditional mould, predicated upon an excessive reliance on posited laws, application and interpretations of which have remained often uniformed by the constitution. I will try to removing illegaligality form, and constitutionalising the country’s criminal justice system. The instance of injustices and unfairness causes to the accused and victims due to the constitution are not few. This article has detected legal positivism as a potential factor behind this secenario.
Essentially, this article argues that in order to achieve better justice for the accused, there is a need to craft a constitutional criminal law, taking into consideration both the spirit and letters of the constitution.
Books and Articles
- A. V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed. (Dhaka: Universal Law Publishing Co. Pvt. Ltd, 2003).
- Shahdeen Malik, “Arrest and Remand: Judicial Interpretation and Police Practice” Special Issue Bangladesh Journal of Law, (Dhaka: Bangladesh Institution of Law and International Affairs, November 2007).
- Ridwanul Hoque, “Criminal Law and the Constitution: The Relationship Revised”, Special Issue Bangladesh Journal of Law, (Dhaka: Bangladesh Institution of Law and International Affairs, November 2007).
- Md. Altaf Hossain, Constitutional Law with Commentary and Case Law, 1st ed. (Dhaka: Jolly Law Book Center, 2008).
- Justice Latifur Rahman, The Constitution of the People’s Republic of Bangladesh with Comments & Case-law, 2nd ed. (Dhaka: Mullick Brothers, 2008).
- Md. Abdul Halim, Text Book on Criminal Procedure Code 1898, 2nd ed. (Dhaka: CCB Foundation, 2008).
- Sarkar Ali Akkas, Law of Criminal Procedure, 2nd ed. (Dhaka: Ankur Prakashani, 2009).
- F. K. M. A. Munim, Rights of the Citizen under the Constitution and Law (Dhaka: Oxford University Press, 1995).
- Mahmudul Islam, Constitutional Law of Bangladesh, 2nd ed. (Dhaka: Mullick Brothers, 2006).
- Md. Zahurul Haque, The Code of Criminal Procedure 1898, 2nd ed. (Dhaka: Shams Publication, 2009).
- Quazi Reza-Ul-Hoque, Preventive Detention Legislation and Judicial Intervention in Bangladesh, 1st ed. (Dhaka: Bishwa Shahittya Bhavan, 1999).
- Badrul Haider Chowdhury, The Long Echoes, 1st ed. (Dhaka: Shams Publication , 1990).
- A.B.M. Mafizul Islam Patwary, Liberty of the People, (Dhaka: Institution of Human Rights and Legal Affairs, 1987).
- Md. Abdul Halim, Constitution, Constitutional Law and Polities: Bangladesh Perspective (In Bangali), 5th ed. (Dhaka: CCB Foundation, 2008).
- Nirmal Chandra Paul, The Special Powers Act, 1974, 1st ed. (Dhaka: Shams Publications, 2008).
- Justice Latifur Rahman, The Constitution of the People’s Republic of Bangladesh with Comments & Case-Law, 2nd ed. (Dhaka: Mullick Brothers, 2008).
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