The right to a fair trial

The right to a fair trial, which is also called “fair administration of justice,” is one of the cornerstones of a democratic society abiding by the “rule of law.” Although the Constitution of Bangladesh, in the preamble, pledged to secure a socialist society “in which the rule of law, fundamental human rights and freedom, equality, and justice, political, economic and social, will be secured for all citizens,” it has excluded “right to a fair trial.” However, the constitution has specifically guaranteed one’s rights to equality before the law (Article 27), to enjoy the protection of the law, to be treated “in accordance with law” (Article 31), and to consult and be defended by a legal practitioner of his choice (Article 33). Predominantly, in Article 35, it has guaranteed certain rights which are the components of “right to a fair trial,” such as the right to “a speedy and public trial by an independent and impartial court or tribunal,” “right to be secured from double jeopardy,” right to non self-discrimination, and protection against “torture or cruel, inhuman, or degrading punishment or treatment.” In layman’s terms, it is not important to acknowledge the “right to a fair trial” explicitly in our constitution when it acknowledges the components in many of its provisions. An adversary criminal system, which Bangladesh adheres to, is based on the accusatorial method. Under this system, the charges against an accused are presented before an open court supported by evidence, which is subjected to challenge, and the proceedings are concluded by a reasoned judgment of the court. This means ius puniendi, “the right to punish,” rests firmly with the court when the guilt is proved beyond any reasonable doubt. Hence, the government has to play the key role of holding people accountable for the crimes they have committed and to ensure that justice is done and seen to be done not only from the victim’s side but also from the side of the accused. Hence, a government has a solemn responsibility to ensure “a fair administration of justice.” Absences of “right to a fair trial” in the constitution does not mean we don’t have the right, but it means there is no remedy if the right gets violated. For which, it is important to acknowledge “right to a fair trial” in the constitution. One might argue that Article 35 of our constitution resembles “right to a fair trial.” Does “right to a fair trial” mean only Article 35 of our constitution? Or does it include the rights guaranteed under Article 27, 31, and 33? Or beyond? The international law as enumerated by Article 38 of the ICJ Statute along with our national laws such as the International Crimes (Tribunals) Act 1973 (hereinafter referred to as ICTA) and the International Crimes Tribunal Rules of Procedure, 2010 (herein after referred to as ICTR) can navigate us in this regard.

Absences of ‘right to a fair trial’ in the constitution does not mean we don’t have the right, but it means there is no remedy if the right gets violated

1. Right to be brought promptly before a judge [Section 167(1) & Section 61 CrPC; Article 9(3)  & Article 9(5)  ICCPR] 2. Right to trial by a competent, independent, and impartial tribunal established by law [Section 6(2A) ICTA; Article 10 UDHR; Article 14(1) ICCPR; UN General Assembly resolutions 67/166, preamble §11 and 65/213, preamble §9]. 3. Right to be presumed innocent [Rule 43(2) ICTR; Article 11 of the UDHR; Article 14(2) ICCPR; HRC: General Comment 24, §8] 4. Right to adequate time and facilities to prepare a defence [Rule 38(2) ICTR; Article 14(3)(b) of the ICCPR; HRC General Comment 32, §32.] 5. Right to protection against self-incrimination [Rule 43(7) ICTR;Article 14(3)(g) of the ICCPR] 6. Right to examine witness evidence [Section 9(4), Section 17(3) & Section 18(4) ICTA ;Article 14(3)(e) ICCPR; Article 6(3)(d) ECHR] 7. Prohibition of prosecution on frivolous charges [Rule 29(1) ICTA; Crain v Commissioner, 737 F.2d 1417 (1984);Washington v Alaimo934 F. Supp. 1395 (S.D. Ga. 1996)] 8. Right to bail if investigation is not completed within a specified period [Rule 9(5); Hitendra Vishu Thakur v State of Maharashtra1994 AIR 2623, 1994 SCC (4) 602] 9. Rights to humane detention conditions and freedom from torture and other ill-treatment [Rule 16(2) ICTR; Principle 5 of the Basic Principles for the Treatment of Prisoners] 10. Right to inspect documents [Section 16(2) ICTA; Rule 77 & 78 Rules of ICC] 11. Right to have proper legal representation [Section 17(2), Section 12 & Rule 43 (1) ICTA; Rule 22 Rules of ICC;HRC General Comment 32, §34;Article 16(4) of the Arab Charter] 12. Right to conduct own defence [Section 17(2) ICTA; Article 11(1) UDHR; Article 14(3)(d) ICCPR] 13. Right of the accused to explain charges [Section 16 & Section 17(1) ICTA; Article 61 Rome Statute ICC] 14. Right to call their own defence witnesses [Section 10(1)(f) & Section 17(3) ICTA; Article 14(3)(e) ICCPR] 15. Right of the victims and witnessto be protected [Rule 58A ICTR; HRC General Comment 32;A.S. v Finland (40156/07), (2010) §55,] 16. Burden of proof on prosecution beyond reasonable doubt [Rule 50 ICTR; Section N(6)(e)(i) of the Principles on Fair Trial in Africa;HRC General Comment 32, §30; Barberà, Messegué and Jabardo v Spain (10590/83) (1988) §77)] 17. Right to speedy trial [Rule 43(5) ICTR;Article 14(3)(c) of the ICCPR] 18. Protection against double jeopardy [Rule 43(3) ICTR;Article 14(7) of the ICCPR] 19. Right to know the reasons for the judgment [HRC General Comment 32, §29] 20. Right to have a sentencing hearing [Article 4(2) of the Convention against Torture] 21. Right to appeal and review against both conviction and sentence [Section 21(1) ICTA;Rule 26 (3) ICTR;Article 14(5) ICCPR.] After exploring these other rights, we can understand the importance of formally acknowledging “right to a fair trial” in our constitution. Some might put forward Article 7B of our constitution. Does it say we can’t amend Part III of our constitution? The constitutional guarantee is the baseline for rights and it allows legal protection of that standard. Such an amendment will enhance our trial system, and without it, Bangladesh will be that one country left behind. Sadiya S Silvee is a Research Assistant, Death Penalty Research Project (DPRP) at Bangladesh Institute of Law and International affairs (BILIA) and Adjunct Lecturer at Green University of Bangladesh. She is also associated with Centre for International Sustainable Development Law (CISDL) as a Legal Researcher.