Bangladesh

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LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

INTRODUCTION

Background

The Hindu period extends for nearly 1500 years before and after the beginning of the Christianity era. The ancient India was a collection of independent kingdoms. In each kingdom, the supreme authority of administration of justice lay with the King, who was believed to be the fountain of justice. In the twelfth century the Muslim rulers conquered all the states and brought with them the Holy Quran, according to which sovereignty rested in the hands of Almighty Allah and the king was His humble servant on earth.

The modernisation of ancient Indian legal and judicial system took place in the hand of the British people. Following the takeover by the British Crown of the Government of India in 1858, a series of laws were enacted which introduced the common law tradition to the Indian sub-continent. The Indian High Courts Act, 1861 provided for the establishment of High Courts in three Presidency Towns (Calcutta, Bombay & Madras), while Civil Courts Act, 1887 and Criminal Procedure Code, 1898 established a hierarchy of Civil and Criminal Courts, respectively. These laws remained in effect after Bangladesh gained independence in 1971. Its Constitution, adopted in 1972, provides for the establishment of Supreme Court consisting of High Court Division and Appellate Division[1].

Type of System

The legal and judicial system of Bangladesh is a hybrid system of Indo-Mughai law and English law. It has developed through a gradual and continuous historical process. The process consists of three periods—Hindu period, Muslim period, and British period—each of which witnessed a distinctive legal system of its own.

Below the Supreme Court, all subordinate courts and tribunals in Bangladesh are creatures of statutes. They are generally divided into two broad classes, civil courts and criminal courts. The criminal court system is two-tiered: courts of magistrates and courts of sessions. Higher-tiered, the courts of sessions have jurisdiction to try any offence provided in the Penal code, and to hear appeals from judgments rendered by any Metropolitan Magistrate or Juridical Magistrate of the first class. The judges appointed to such courts are of three types: Sessions Judges, Additional Sessions Judges, and Joint Sessions Judges. Sessions Judges and Additional Sessions Judges hold the powers to impose any penalties provided in the Penal Code, including the death penalty. The Courts of Sessions in the metropolitan areas of Dhaka and Chittagong have been separately organized as the Courts of Metropolitan Sessions. They are exclusively criminal courts and deal with session matters only. Courts of Magistrates are organized into three classes--Magistrates of the first class, second class and third class—on the basis of powers and functions conferred on them.

Apart from the abovementioned civil and criminal courts, there are also a number of special courts and tribunals that deal with specific matters and offences, such as Labour Courts, Juvenile Court, Administrative Tribunals, Income Tax Tribunals, Family Courts, to name a few. These courts are also under general oversight of the Supreme Court.

The Legal System

Article 27 of the Constitution of Bangladesh recognizes that all citizens are equal before law and are entitled to equal protection of law as a fundamental human right. The Legal Aid Act, 2000 (the Act) established a state-sponsored legal aid scheme, aimed at benefiting indigent litigants in all sorts of criminal, family and civil matters. The Act defines legal aid to include legal advice, legal representation, and (since 2006 amendments) limited alternative dispute resolution (ADR) services in civil matters. The Act is administered by National Legal Aid Services Organization (NLASO), a statutory body with a board of directors composed of 19 members, among them the Minister of law, Justice and Parliamentary Affairs as chairman, Members of Parliament, Attorney General of Bangladesh, Governmental Officials as well as representatives from the civil society (MinLaw).

The NLASO, in its first three years of existence, received inadequate attention and most of the funds allocated for it went unused[2]. To address this situation, the Government of Bangladesh cooperated with the World Bank and the Canadian Bar Association to sponsored a national study to identify the underlying problems and devise solutions thereto. The study led to the creation of a bilateral international cooperation effort known as the Bangladesh Legal Reform Project, which focuses on legal aid, juvenile justice and alternative dispute resolution.

Sources of Defendant's Rights

Defendants’ rights in criminal proceedings are found in Part III of the Constitution and throughout the Code of Criminal Procedure ("CCP").

On September 6, 2000, Bangladesh signed and ratified the International Covenant on Civil and Political Rights (the “Covenant”). As a party to this Covenant, Bangladesh is bound to respect the civil and political rights contained therein. Specifically, Article 14 recognizes and protects a number of due process rights of the accused, including equality before the law; right to a fair and public trial by a competent, independent and impartial tribunal; right to be presumed innocent until proven guilty; right to notice of charges; right to a speedy trial; right to counsel; right to examine the witnesses against him; right against self-incrimination; right to appeal; and freedom from double jeopardy[3].

RIGHTS OF THE ACCUSED

Criminal Law System

Legality principle

Legality principle prohibits convicting a person of violating a law that was not in force at the time of the commission of the act for which the person was charged. This principle is enshrined in s.35(1) of the Constitution as a fundamental right.

Presumption of innocence

The right to be presumed innocent until proven guilty is guaranteed by Article 14, Section 2 of the Covenant.

Freedom from prolonged pre-trial detention

s.33 of the Constitution provides a number of safeguards as to arrest and detention. Clause (2) provides that a person under arrest and in custody shall be produced before a magistrate without 24 hours of the arrest (excluding the time spent on the journey from the place of arrest to the court) and shall not be detained beyond the said period without the authority of a magistrate. The same safeguard can also be found in s.61 of the CCP. However, the foregoing constitutional provision does not apply to two specified classes of persons: enemy aliens at the time of the arrest, s.33(1)(3)(a); persons arrested under any law providing for preventative detention, s.33(1)(3)(b). Concerning the latter class, Clause (4) of Section 33 provides that the period of preventative detention shall not exceed six months unless an Advisory Board finds sufficient cause for prolonged detention after hearing the accused in person.

Capital punishment

Certain criminal offences in the Penal Code of Bangladesh are punishable by death. A Court of Session has power to hand down sentence of death, but the death sentence shall not be executed unless and until it is confirmed by the High Court Division[4].

When a Court of Session sentences an accused to death, the case is submitted to the High Court Division, who may, pursuant to s.376 of CCP, confirm the sentence, annul the conviction, or a new trial, or acquit the accused.

Fair Trial Rights

Double jeopardy

Double jeopardy is a commonly-known term for the principle that a person shall not be prosecuted and punished for the same offence more than once. This principle is enshrined in the Constitution of Bangladesh as a fundamental right[5].

s.403(1) of the CCP defines this right more specifically as a right not to be liable to be tried again for the same offence of which the person has once been convicted or acquitted. The same section further provides that the accused shall not be liable to be tried against for any other offence for which a different charge might have been made under s.236 or s.237. s.236 allows the prosecution to charge the accused with several offences which it thinks the facts can be proved to constitute, while s.237 allows for the possibility of convicting an accused of a different offence than the offence with which he is charged. However, s.403(4) provides that the double jeopardy principle does not apply if the court which originally tried the accused was not competent to try the offence with which he is subsequently charged.

Right to Counsel

s.33(1) of the Constitution guarantees every person “the right to consult and be defended by a legal practitioner of his choice”[6].

Specifically in the criminal law context, a person accused of a criminal offence has a right to be defended by a pleader<s.340(1), Bangladesh Code of Criminal Procedure</ref>.

Right to habeas corpus s.491 of the CCP provides for the right to habeas corpus—that a person detained in public or private custody be brought before the court in order to determine whether he/she is legally or properly detained. If not, the detainee shall be released from custody. The administration of this right is subject to the discretion of the High Court, who “may, whenever it thinks fit, direct” the writ of habeas corpus (s.491(1)). Also, the Clause (3) of the Section provides that the Section does not apply to person detained under any law providing for preventative detention.

Right to notice of charges This right is provided in Article 14, Section 3 of the Covenant.

Right to a speedy trial s.35(3) of the Constitution provides that “every person accused of a criminal offence shall have the right to a speedy and public trial.”

Right to independent and impartial court s.35(3) of the Constitution also provides that the “speedy and public trial” to which every person accused of a criminal offence is entitled shall be “by an independent and impartial Court or tribunal established by law.” The strength of this constitutional guarantee, however, is diminished by Clause (6) of the same section, which provides that Clause (3) shall not affect the operation of any existing law which prescribes any punishment or procedural for trial.

Right to a fair trial Although the word “fair” does not appear in s.35(3) of the Constitution, it is implicit in the guarantee of the right to a public hearing by an independent and impartial court or tribunal. Moreover, Article 14, Section 1 of the Covenant provides for a right to “a fair and public hearing.”

Right to non self-discrimination The Constitution guarantees, in s.35(4), that no person accused of any offence shall be compelled to be a witness against himself. s.340(3)(a) of the CCP provides that an accused shall not be called as a witness except on his own written request. Clause (b) provides that the failure of the accused to give evidence shall not give rise to any presumption against him.

Freedom from punishment s.35(5) of the Constitution guarantees every person a right not to be subjected to torture or cruel, inhuman, or degrading punishment or treatment. However, the strength of this guarantee is cast in doubt by Clause (6), which immunizes the operation of any existing law which prescribes any punishment or trial procedure from any effect of Clause (5).

CRIMINAL PROCEDURE

Police Procedures

Complaint/information Every person, aware of the commission of or intention of any person to commit any offence punishable under an enumerated list of sections of the Penal Code, is legally bound, unless a reasonable excuse exists, to report such commission or intention to the nearest Magistrate or police officer[7].

The provision that follows provides that village-headmen, village-accountants, village watchmen, village police officers, and landholders have a legal duty to report any information respecting the presence of a criminal (e.g. thieves, thugs, robbers, escaped convict) in their villages, commission of or intention to commit any criminal offence, or occurrence of death/discovery of a corpse, or any matters likely to affect the peace, order or safety of the community.

Arrest

Police officers authorized to make an arrest have the power to “actually touch or confine the body of the person to be arrested,” unless that person submits to the custody by word or action. However, s.50 circumscribes this power by providing that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”

A police officer to arrest without a warrant on any of the following grounds: (1) the person arrested has been concerned in a criminal offence: (2) a reasonable complaint has been made against him; (3) credible information has been received of his having been so concerned; and (4) a reasonable suspicion exists of his having been so concerned[8].

Furthermore, if a police officer knows of a design to commit a criminal offence, he is authorized under s.151 of the Code to arrest, without orders from a Magistrate or a warrant for the purpose of preventing the commission of the offence.

After an arrest has been made without a warrant, s.60 requires the police officer to take the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police station “without unnecessary delay.”

Pre-trial detention

s.61 of the CCP provides that a person arrested without warrant shall not be detained for a longer period than is reasonable under the circumstances of the case.<s.61, Bangladesh Code of Criminal Procedure</ref>. In the absence of a special order issued by a Magistrate under s.167 of the Code, the period of detention shall not exceed 24 hours.

Searches

Search of a person under arrest is permitted if:[9] - The arrest is made with a warrant which does not provide for the taking of bail; - The arrest is made with a warrant which does provide for the taking of bail but the arrested person is unable to furnish bail; - The arrest is made without a warrant and the person arrested “cannot legally be admitted to bail;” or - The arrest is made without a warrant and the person arrested is unable to furnish bail. The police offer making the search will place in safe custody all articles, other than necessary clothing, found upon the person under arrest.

s.165 of CCP confers power on the police to search a place. The lawful exercise of this power requires three conditions to be met: (1) the officer conducting the search is authorized to investigate into the offence; (2) the place must be within the limits of the police-station of which the officer is in charge; (3) he must have “reasonable grounds” for believing that something necessary for the investigation into the offence may be found in the place, and that this thing “cannot be otherwise obtained without undue delay”[10]. If these conditions are met, the police officer may record the grounds of his belief in writing and the object of the search, and conduct the search in person if at all possible.

Interrogation

The power of the police to investigate a case may or may not be subject to judicial authorization depending on whether the offence concerned is cognizable. Where the case concerns a non-cognizable offence, a police officer must receive a order of a Magistrate of the first or second class having jurisdiction to try the case or send it for trial before commencing investigation[11]. Where the case concerns a cognizable offence, such an order is unnecessary[12], and the police officer shall proceed to investigate the facts and circumstances of the case, and send a report to a Magistrate who is empowered to take cognizance of the said offence[13]. Cognizable offences are described in Chapter III of the Code.

Under s.25 and 26 of the Evidence Act of 1872, no confession made by a person to a police officer, or in police custody, is admissible in evidence. A confession to any person other than a police-officer shall be admissible only if made “in the immediate presence of a Magistrate.” Facts discovered in consequence of information received from an accused while in police custody may be admissible[14].

s.164 of the CCP further defines the manners in which the Magistrate is to record confessions made in the course of pre-trial investigation. Before recording such confession, the magistrates must explain to the accused that he is not bound to make such a confession and that if he does so, the confession will be used as evidence against him. Moreover, the magistrate shall not record any such confession if he has reason to believe that the confession was not made voluntarily[15].

Enforcing the rules against illegal interrogation

Unders s.342 of the CCP, the Court has discretion to put questions to the accused at any stage of any inquiry or trail without prior warning to him. The accused may refuse to answer such questions or answer falsely without being liable to punishment, though the court may draw such inference from such refusal or false answer as it thinks just.

s.364 of the CCP prescribes the manners in which any Magistrate or any Court other than High Court Division shall examine the accused. Measures, such as reading back and translation, shall be taken to ensure that the record accurately accords with the statements by the accused.

Procedure with witnesses

On the application of either the complainant or the accused, the Magistrate taking cognizance of the case may issue a summon to any witness directing him/her to come before the court and produce any document or other evidence[16].

Once the accused enters upon his defence, he can apply to the Court for an issue of any process for compelling the attendance of any witness or the production of any document or thing.

Initial court appearance

A criminal case can be instituted either on a complaint or on a police report. Court proceedings commence when a Magistrate, upon receiving the complaint or the police report, takes cognizance of the said offence[17]. The accused is entitled to have the case tried by another Court, and the Magistrate shall inform the accused of this right before any evidence is taken[18].

Upon taking cognizance of the offence on complaint, the Magistrate shall immediately examine the complainant on oath, and have the examination reduced to writing and signed by the complainant as well as by the Magistrate.

Preliminary hearing

The procedure for preliminary hearings is set out in Chapter XX of CCP. After the accused is produced before a Magistrate, if the accused admit having committed the offence, the Magistrate may convict him accordingly if he shows no sufficient cause why he should not be convicted[19]. If the accused makes no such admission of guilt, or if the Magistrate does not convict him under s.243 of CCP, the Magistrate shall proceed to a preliminary hearing, wherein the complainant and the accused each make submissions and produces evidence[20]. After hearing the submissions and considering the evidentiary record, the Court determines whether there is ground for presuming that the accused has committed an offence (s.242 for trial by Magistrates, s.265C for trial by Courts of Session). If the answer is no, the Court shall discharge the accused. If the answer is yes, the Court shall frame in writing a charge against the accused.

Trial

Pursuant to s.260 of CCP, certain offences may be tried summarily, including offences punishable by imprisonment for a term not exceeding two years, theft where the value of the property stolen does not exceed ten thousand taka, criminal trespass, to name a few. The procedure for a summary trial is the same as that for a preliminary hearing as provided in Chapter XX of CCP.

The procedure for trials before the Courts of Session is provided in Chapter XXIII of CCP. Every trial before a Court of Session is to be conducted by a Public Prosecutor. The prosecutor opens his case by describing the charge brought against the accused and adduce evidence in support of the prosecution’s case. The witnesses for the prosecution are then examined. As previously mentioned, the court may examine the accused without prior warning before the accused is allowed to enter into defence[21]. If the accused refuses to answer the questions put to him by the court, the court is allowed to draw adverse inferences.

After hearing the prosecution’s case and examining the accused, the court is to decide whether the accused should be acquitted for lack evidence that the accused committed the offence[22]. If the accused is not acquitted, he or his pleader is then allowed to present his case and call witnesses to the stand to be examined[23].

After all the witnesses for the defence are examined, the prosecutor sums up his case and the accused or his pleader is entitled to reply. The trial is complete when the court renders a judgment.

Expert witnesses

When the court has to form an opinion upon a point of foreign law, science or art, or in questions as to identity of handwriting or finger impressions, it can call upon persons specially skilled in such matters, known as experts, to give opinions, and use the same as relevant facts[24].

Sentencing

Pursuant to s.366 of CCP, the judgment in every criminal trial must be pronounced either immediately after the termination of the trial or at some subsequent time with notice given to the parties. Whether or not in custody, the accused is required to attend the sentencing hearing, unless his/her personal attendance during the trial has been waived and the sentence is a fine or the judgment is acquittal. Once a court signs its judgment, the same court cannot alter or review the same unless otherwise provided by the CCP or any other law[25].

Any death sentence must be submitted to the High Court Division for its confirmation[26]. If the same court thinks it necessary to make further inquiry or take additional evidence, it may so direct the Court of Session[27].

In non-capital cases, the High Court Division has the power to confirm or annul the conviction and sentence by the Court of Sessions[28]. However, such confirmation cannot be made until the period allowed for filling an appeal has expired, or, if an appeal is filed within such period, until the appeal is disposed of[29].

Where a bench of two or more judges on the High Court Division pass a new sentence or order, the confirmation of the same requires the signatures of at least two judges (s.377 of CCP). If the judges are equally divided in opinion, their opinions together with the case shall be submitted to another judge, who shall make the final decision.

The Government of Bangladesh retains the power to suspend the execution of a sentence or remit the same in part or whole at any time, with or without conditions[30]. A convicted person may petition the Government for suspension or remission of his/her sentence, in which case the Government may require the judge responsible for passing or confirming the sentence to state his reasons together with his opinion as to the application. This power is distinct from and does not affect the power of the President to grant pardons.

Appeal

s.418 of CCP provides that matters of fact as well as matters of law may constitute grounds of appeal. Severity of sentence is considered to be a matter of law. Every appeal shall be presented in the form of a petition and be accompanied by a copy of the judgment or order appealed against[31]. Upon receiving the petition, the appellate court determines, as a threshold issue, whether there is sufficient ground for hearing the appeal. If the answer is no, the court may dismiss the appeal summarily[32]. If the answer is yes, the court causes a notice to be given to the appellant, and also to the respondent along with a copy of the grounds of appeal[33].

There is no general right to appeal under the CCP. Rather, Chapter 31 of the CCP enumerates the types of court orders or judgments that are appealable: - Order under s.89 rejecting application for restoration of attached property (s.405) - Order under s.118 requiring security for keeping the peace or for good behaviour (s.406) - Order under s.122 refusing to accept or rejecting a surety (s.406A) - Conviction by a Magistrate of the second or third class (s.407). The appeal lies with the Chief Magistrate - Conviction on trial by a Joint Sessions Judge or any Magistrate of the first class (s.408). The appeal generally lies with a Sessions Judge or, in certain cases, with the High Court Division. - Conviction on trial by a Sessions Judge (s.410). The appeal lies with the High Court Division.

EMERGENCY LAW

Under s.141C of the Constitution, in times of emergency, defined as the period during which a Proclamation of emergency is in operation, the enforcement of the fundamental rights conferred by Part III of the Constitution may be suspended by order of the President on the written advice of the Prime Minister. The order may extend to the whole country or any part thereof.

References

  1. Article 94 to 113, Constitution of the People's Republic of Bangladesh
  2. http://www.pensamientopenal.com.ar/system/files/2014/12/doctrina39811.pdf
  3. Article 14, International Covenant on Civil and Political Rights, available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
  4. s.374, Bangladesh Code of Criminal Procedure
  5. s.35(2), Bangladesh Code of Criminal Procedure
  6. s.33(1), Constitution of the Republic of Bangladesh
  7. s.44(1), Bangladesh Code of Criminal Procedure
  8. s.54(1), Bangladesh Code of Criminal Procedure
  9. s.51, Bangladesh Code of Criminal Procedure
  10. s.165, Bangladesh Code of Criminal Procedure
  11. s.155(2), Bangladesh Code of Criminal Procedure
  12. s.156(1), Bangladesh Code of Criminal Procedure
  13. s.157, Bangladesh Code of Criminal Procedure
  14. s.27, Evidence Act of 1872
  15. s.164, Bangladesh Code of Criminal Procedure
  16. s.244, Bangladesh Code of Criminal Procedure
  17. s.190, Bangladesh Code of Criminal Procedure
  18. s.191, Bangladesh Code of Criminal Procedure
  19. s.243, Bangladesh Code of Criminal Procedure
  20. s.144, Bangladesh Code of Criminal Procedure
  21. s.342, Bangladesh Code of Criminal Procedure
  22. s.265H, Bangladesh Code of Criminal Procedure
  23. s.265I, Bangladesh Code of Criminal Procedure
  24. s.45, Evidence Act
  25. s.369, Bangladesh Code of Criminal Procedure
  26. s.374, Bangladesh Code of Criminal Procedure
  27. s.375, Bangladesh Code of Criminal Procedure
  28. s.376, Bangladesh Code of Criminal Procedure
  29. s.376, Bangladesh Code of Criminal Procedure
  30. s.401(1),Bangladesh Code of Criminal Procedure
  31. s.419, Bangladesh Code of Criminal Procedure
  32. s.421, Bangladesh Code of Criminal Procedure
  33. s.422,Bangladesh Code of Criminal Procedure



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QUICK FACTS

  • There are 77,000 prisoners in Bangladesh. Sixty-nine percent are pre-trial detainees and remand prisoners.
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