Ensuring Natural Justice By ‘Right To Defend’

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Fatima Zahra Ahasan Raisa :

Judiciary, one of the three organs of the government, is entrusted with the power to apply laws in order to ensure justice. But whenever there are sensitive cases like murder or rape, the common scenario that comes in front of us is criticizing and abusing the defense lawyer. If justice could be accomplished by opinions of general people or layman, there would absolutely be no requirement of the organ judiciary. Having defense lawyer to defend oneself is one of the key ingredients of fair trial and due process of law. The most disappointing part is when the accused is labelled as a criminal by general perception even before the starting of prosecution.
We often fail to understand that the “right to be defended” by a legal practitioner is a core important element of ensuring natural justice.
One of the important principles of natural justice includes Audi Atteram partem- a Latin phrase which means to hear the other side. A fair administrative process includes that with prior notice a fair opportunity of representation should be given to the accused. A fundamental aspect of natural justice is that before a decision is made all parties should be heard on that matter.
This principle of natural justice is grounded in Article 33(i) of constitution of Bangladesh which is also a fundamental right. Article 33(i) states, “No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall be denied the right to consult and be defended by a legal practitioner of his choice.”
If the trial is completed without hearing the other party then eventually Article 27(Equality before law), Article 31(Right to protection of law), Article 32 (Protection to personal liberty) of the constitution will be violated.
It is very obvious for common people to have aggression for a rapist or a murderer. But it is also important for them to understand that without being proved none cannot be labelled as a criminal. Because the legal principle ‘presumption of innocence’ clarifies that a person is innocent until he is proven guilty which came from a Latin maxim ‘ei incumbit probation qui dicit, non qui negat’ which means the burden of proof lies upon him who affirms, not him who denies the allegation. Retraction is a legal term which refers withdrawal of any legal document or statement like :- an accused, at first instance may admit his guilt and later deny it. But retraction has no legal value before the trial has started and the investigation is completed. So based on one’s acceptance of guilt at first instance a person cannot be tagged as an accused. In criminal justice system of Bangladesh, confessional statement is secured under section 164 of Code of Criminal Procedure-1898 (Cr. P.C.) which is considered as a vital evidence in the legal proceedings. However, there are mass allegation from the accused persons that it is often taken under forced conditions by the police. In most case, these statements are retracted at the time of the trial. During the trial, many accused persons complained to the judges that they were threatened and brutally beaten by the police to confess before the magistrates about the crime they are accused of.
Also the Article 35 of the constitution of Bangladesh states, “No person accused of any offence shall be compelled to be a witness against himself.” The article also states that no person shall be subjected to torture or to cruel, inhumane or degrading punishment or treatment. Bangladesh is also a signatory country of the convention “Inhuman or Degrading Treatment or Punishment, 1984”, which prohibits torture to get confession. Thus, coercing an accused person to be a witness against himself in the name of confessional statement under section-164 is the serious violation of natural justice and personal liberty of the accused person. So to prove that the accused is coerced there is an important role of defense lawyer.
The core problem is that general people treats a ‘suspected murderer or rapist’ as a murderer or a rapist which is wrong and a serious misconception.
In a country like Bangladesh, filing false case is an occurring thing. The Nari-O-Shishu Nirjatan Daman Ain-2000 was enacted to make the necessary provisions for the elimination of crimes against women and children. However, it is also reported in various media that this law is often misused by women for whose protection the law was enacted.
In Subrota Halder versus The State (2014 34 BLD High Court Division 635) the allegation of demand of dowry and assault on the victim was not proven and hence, the court ordered that framing a charge under section 11 (Ga) is not sustainable in law.
So, if an accused is not provided with the right of legal representation an innocent person will be deprived of justice.
Right to be defended is a constitutional right not only provided in the constitution of Bangladesh but various other laws have recognized this right.
Firstly, In Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 Chapter-II, Section-9, Bangladesh Bar Council cannons of Professional Conduct and Etiqutte it is embodied that- It is the right of an advocate to undertake the defence. Section-12 of person accused of crime, regardless of his personal opinion as distinguish from knowledge, otherwise innocent persons, victims merely of suspicious circumstances, might be denied proper defence section of the same chapter includes that- No fear of judicial disfavour or public unpopularity should restrain him the full discourage of his duty.
Secondly, section-340 of the Code of Criminal Procedure, 1898 says- To defend an undefended accused charged with capital offence, an advocate should be appointed in such a time as to enable him to study the case and provided with the papers ordinary allowed to the accused.
Thirdly, in section-12 of International Crimes Tribunal Act, 1973 the provision for defence counsel is included. The section states, Where an accused person is not represented by council, the Tribunal may, at any stage of the case, direct that a counsel shall be engaged at the expense of the government to defend the accused person and may also determine the fees to be paid to such counsel.
The accused criminals in Bangabandhu murder case were also represented by their respective counsels.
Besides various international conventions have recognized this right.
Article 11(1) of Universal Declaration of Human Right (UDHR) states that ” Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. Article-14, Section-3 of the International Covenant on Civil and Political Rights guarantees rights to an accused in a criminal trial. The right includes to communicate with a lawyer of own choosing and have enough time to prepare for defence and to have a lawyer assigned if accused cannot afford a lawyer.
Article 6(3) (c) of European Convention on Human Rights also protects the right to be defended.
Article 8(2) of American Convention on Human Rights states- Every person accused of a crime is presumed innocent until proven guilty and during the trials, the accused has the right to either defend himself or have a lawyer of his own choosing to defend him in court.
Most of the constitutions of the world have recognized this right.
Article 22 of the Indian constitution also outlines the right to counsel.
A criminal defendants right to an attorney is found in 6th Amendment to the U.S. Constitution, which requires the assistant of counsel for the accused in all criminal prosecutions .
The Law Commission of India, established this principle in its 48th report, while discussing safeguards against overuse of state power in criminal proceedings.The report remarked that the commission is of the view that defence of the indigent accused by a pleader assigned by the state should be made available to every person accused of an offense so that mere poverty may not stand in the way of adequate defence in a proceeding which may result in the deprivation of liberty or property or loss of reputation. The Commission thus recognized the right to counsel as a basic ingredient of a criminal trial, and commented that the law should go as far as possible in assuring that this ingredient is not absent.
Various case decisions have also valued the principle.
In Aruna Sen versus Government of Bangladesh (1975) 27 DLR(HCD)122 is a case of the High Court Division of the Supreme Court of Bangladesh. It was observed in the case that an order of detention of malafide or collated purpose is illegal, it must be
shown that the grounds of detention are relevant and do not suffer from vagueness, are not indefinite and are not such as to deprive the detained person of his constitutional and legal right of making an effective representation against his detention at the earliest opportunity as provided in Clause (5) of Article 33 of Constitution and Section- 8(1) of the Special Powers Act,1974..
In an Indian case, Md. Sukur Ali versus State of Assam, the Supreme Court held that, even assuming that the counsel for the accused does not appear because of the counsels negligence or deliberately even then the court should not decide a criminal case against the accused in absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused.
Australia though does not have a common law right provided for legal representation but in the case Dietrich versus The Queen (1992) 177 CLR it was held that where an accused charged with a serious offence is unable to obtain any legal representation, any application for an adjournment of stay should be granted and the trial delayed until legal representation is available. If in such circumstances an application for an adjournment or stay is refused, and as a result the trial is an unfair one, the conviction must be overturned.
Without legal representation, it is very difficult to ensure fair trial which is grounded in Article 35 of our constitution. In an adversial legal system like Bangladesh, the charges against an accused are presented before an open court supported by evidences which is subjected to challenge, and the proceedings are concluded by a reasoned judgment of the court. This denotes ius puniendi, the right to punish, rests with the court when the guilt is proved beyond reasonable doubt. Hence, it is wrong for the general people to point out someone as criminal before the judgment of court. Because, the person may be innocent or he may be framed wrongfully in a false case.
So, people should stop thinking that the reason for poor conviction rate of criminals is the lawyers of accused and focus should be given on reasons why criminal justice is actually delayed.

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Writer :
LL.B(Hons), 3rd Year
University of Chittagong