Speedy Tribunal of Bangladesh
A Review
Introduction
Law is an ever-evolving mechanism. New situations merit enactment of new laws. But a legal system, which is overburdened with stalled cases, is surely in need of revamping. In absence of a total makeover the speedy trial tribunal act has been proposed as a solution. It is introduced as an appendage a separate cell or a special arrangement that would facilitate a quick penal procedure. When the majority of the cases are left in the loft of the regular courts, and handful ones are to be considered under the speedy trial act, the question remains, whether this new law is just a face-saver for the government.
In the context of the sinking law and order situation, the efficacy of this new trial procedure seems a tenable cause to stand for it. After several cases being resolved with an unprecedented quick pace, it has whetted the enthusiasm of the public. People, with expectations have rallied in support of this new tribunal. The act works in accruing quick verdicts.
Objectives
The objectives acted behind this research are as follows:
- To examine the necessity of a tribunal called Speedy Tribunal.
- The role of Speedy Tribunals in the judicial system.
- To see how far it has been successful in achieving its goal.
Tribunals
The proliferation of tribunals in the twentieth century has been a special feature o the development of judicial administration in almost every coo wealth countries. The numbers of tribunals and their importance have increased so significantly that it is no longer justifiable to regard tribunals merely as an appendage to the ordinary court o flaw. They are in integral part of the ordinary legal process. This system of administrative justice has in the past caused some concern as professor dicey rejected notions of separate system of justice for resolving disputes between citize3nand the state. Such a vie however is no longer tenable given the widespread functioning of various tribunals now –a –days. What preempted this development of administrative e justice through tribunals? The reasons for this growth of a system of tribunals reflect both the perceived disadvantages of the common law courts in terms of formality, lack of speed, lack of expertise in some specialist areas of law, cost etc and the context of social or welfare state with the rise of welfare legislation. They also reflect the perceived advantages of tribunals as bodies which follow in formal procedures, can hear cases relatively quickly, and are cheap and which have expertise in the particular subject matter. In tribunals preceding are relatively informal. The strict rules of evidence don not apply. Any person may appear before it. Awards of cost are not usually made unless a party has acted frivolously.
Different Types of Tribunals
Tribunals are largely classified into statutory and domestic though both the categories are the creation of different statutes. This classification is base do the natures the subject matter they adjudicate. Statutory tribunals adjudicate matter of public concern e.g. Tax Appeal tribunal deals with tax claim between the government and its employee’s s. On the other hand, there are some other Tribunals which have no relevance to public concern. They mainly relate to matters of private rather than public relevance although at times the two can overlap These second category of tribunals are sometimes classified as domestic tribunals . Examples of these domestic tribunals are the disciplinary committees of professional institutions such as the Bar Council, the Bangladesh Medicals Association, trade unions, universities etc. The power that each of these tribunals has is very great audit is controlled by the ordinary courts through ensuring that the rules of naturals justice are complied with and that the tribunals does not act ultra vires, i.e., beyond its powers.
Speedy tribunal-its meaning
The Speedy Trial Act was enacted on October 24 of 2002.Speedy Trial Tribunal Act has been enacted for speedy disposal of sensational and notorious cases like murder, rape, etc. Under this act 2,025 notorious offenders were sentenced to death penalty. Trial of 425 sensational cases has been completed. It has influenced other courts for speedy disposal of cases under trial. People of Bangladesh have got back their confidence in courts. By this time about 1,200 poor and helpless people have been provided legal aid at government’s cost. Death by hanging of notorious terror Ershad Shikder, 3 policemen and 16 others has so far been carried out.
Speedy tribunal Bangladesh-perspective
The Speedy Trial Act was enacted on October 24 of 2002. The law was put to effect the day the president ratified it. Initially it was effective for two years starting from the date of its implementation. ‘The Speedy Trial Tribunal Act 2002′ was implemented from October,2002. And within first eight months of its implementation, verdicts were given to more than 100 cases of murder and rape. The Government has the prerogative to transfer any case to the speedy trial tribunal that it feels need to be resolved quickly. But the speedy trial act gives any citizen the right to file a case of harassment or mugging in the police station.
Speedy Trial Tribunal Act has been enacted for speedy disposal of sensational and notorious cases like murder, rape, extortion, or forcing something out of someone by intimidation or force to willfully change the direction or to intentionally damage any vehicle to destroy the property of the Government or any other person mugging, terrorism; obstruction of buying or selling of documents of any organization; to prevent an organization or a person from doing his or her work through means of threat or force. Those who are found guilty of these charges will be facing two to five years of imprisonment. Law-breakers may also have to pay fines. And those who abet in such crimes will face the same punishment. If anyone is found to be harassing someone or presses false charges against anyone he or she will be liable to the same punishment as well.
Functioning of the speedy trial system
The investigating police officer working on a particular case has to hand over the accused to the court within 24 hours along with the FIR (First Information Report). Then the police officer has to submit the detailed report explaining the alleged involvement of the accused to the court in the next seven days. The accused is then given 30 days to deny the charge against him and plea his innocence.
In the instance in which the main accused cannot be captured by the police, the FIR has to be produced to the court in seven days. If the court feels that there is not much chance of apprehending the accused, it can order him to surrender in seven days through a public notice in a Bangla daily. In this kind of situation the court has to continue with the legal procedure without the accused and complete the case in 60 days time. Once the investigation is complete, the court has the right to issue bail to the criminal if it feels so.
Although the public has welcomed the introduction of speedy trial tribunal, some have expressed their doubts about the efficacy of the system too.
Fair and speedy trial under the Constitution
The notion of “fair and speedy” trial is a constitutional obligation. These two terms have greatly been emphasized by our Constitution, the supreme law of the land. If the court of law, tribunal and the sitting of justice are not fair, impartial and independent, then the whole process in relation to administration of justice becomes a mockery, farce and a means of infliction of injustice through the means of justice. Simultaneously, if the trial system is not speedy as required and expected to expeditious delivery of justice then it also leave the justice seeking people backward and easily oppressed. In all fairness, the judges should be of Judi-caring mind by applying the strong sense of judicially while administering justice, something which goes beyond the domain of law must be avoided.
1.Components of fair trial
Components which can be enumerated in respect of fair trial are as follows: The trial system must be free, impartial and independent, It should be open and public; the parties must be subject to the same kind of law; The right to self defense has to be ensured; No enactment of law after commission of crime i.e. no ex-post-facto legislation.
Generally, every court of justice is to remain open to all citizens as publicity is the authentic hall-mark of judicial process as distinct from administrative procedure. Article 35 (3) of the Constitution stresses ‘public trial’ by an independent and impartial court or tribunal. The essence of the same is to provide a fair trial. Section 352 of the Criminal Procedure Code (Cr.PC) provides for public trial. In fact, section 352 of the Cr.PC confers discretion 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 sixth amendment to remain present at the trial (Faretta vs Californica, 422 US 806). The requirement of public hearing in a court of law for a fair trial is, however, subject to the need of the proceeding being held in camera to the extent necessary in the public interest and to avoid prejudice to the accused. In our country, the Family Courts Ordinance, 1985 provides for provision of camera trial in respect of some matters. In a case, where reasonable apprehension of bias of the trial judge or magistrate arises, the provision of transfer of cases has been incorporated into the Cr. P.C. just to make the trial fair.
2. Speedy trial
Though an accused is guaranteed a speedy trial, it is difficult to set down the notion for time limit for trial in all cases. Delay in our country is systematic and profound. Expeditious trial and freedom from detention are part of human rights and basic freedom and a judicial system which allows incarceration of individuals for long periods without trial must be held to be denying human rights to such under trials prisoners.
In respect of speedy trial in A. R Antulay VRS Nayak, the Indian Supreme Court laid down some propositions considering a large number of decisions. Right to speedy trial is the right of accused. The fact that speedy trial is also in the public interest does not make it any-the less the right of the accused; the right encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial; the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction. The worry, anxiety, expense and disturbance to his vocation and peace resulting from an unduly prolonged investigation and inquiry or trial should be minimal; often the accused is interested in delaying the proceedings.
Therefore, when a complaint of violation of the right to speedy trial is made, the first thing to be asked is who is responsible for the delay; while determining whether undue delay has occurred resulting in violation of the right to speedy trial regard must be had to all the attendant circumstance, including the nature of the offence, number of accused and witnesses, the work load of the court concerned, prevailing local conditions and so on; Inordinate delay may be taken as a proof of prejudice.
In this context the fact of incarceration of the accused will be a relevant fact; An accused’s plea of denial of the right to speedy trial can not be defeated by saying that he did not at any time demand a speedy trial; It is neither advisable nor practicable to fix any time-limit for trial of offences and it is for the court to balance and weigh the several factors to determine in each case whether the right to speedy trial has been denied; Once the right to speedy trial is found to have been infringed, generally the charge or the conviction shall be quashed. In such a case, it is open to the court to make such other appropriate order as may be deemed just and equitable in the circumstances of the case.
3.Recent developments
A slow-moving justice system cannot be an effective tool in the fight against crime. In this respect, a good number of speedy trial courts throughout the country have been set up to combat the prevailing situation and the idea of setting up the courts like speedy trial courts can be said to have been based on a correct assessment of our ground reality. In the meantime this type of court has gained a tremendous success with disposal of highly sensational cases. The pattern of speedy trail and deterrent punishment needs to be taken forward.
3.Concluding remarks
The prime objective of the judiciary/judicial institution is to ensure fair and speedy trial within shortest possible time so that the justice seeking people can get justice expeditiously. The judicial process must possess the genius to do social justice and the judiciary can not be oblivious of this constitutional norm. No man hopes to succeed in a bad cause unless he has reason to believe that it would be determined according to bad laws or by bad judges. Only just decision can prevent unjust cause and restore people’s confidence in the justice delivery system. But the norms of fair and speedy trial are the condition precedents.
Law and order regarding Speedy Tribunal
The present government inherited a very most aggravated law and order situation when it assumed power. During the last three years, government has taken effective measures to improve the law and order situation and to ensure security of life and properties of the citizens. These are; arrest of holders of illegal arms, recovery of illegal arms, detaining extortionists, illegal occupiers, terrorists, thieves, dacoits, murderers, cheats and smugglers, reformation and amendment of existing laws, enactment of new laws etc. Steps have been taken to form ‘Acid Control Council’ to prevent children and women trafficking and to increase service facilities and manpower in Police, Ansar, BDR Departments. Rapid Action Battalion (RAB) are engaged, to dispose off the criminal cases speedy trial and speedy disposal of sensational and important cases a monitoring cell has been formed. Armed Police Battalion and RAB are working side by side to combat crimes and these activities have brought substantial improvement in law and order situation. People now feel confidence on rule of law and the law enforcing agencies.
Special tribunal & speedy tribunal
Special Tribunal an extra-judicial body enshrined in the special power act 1974 and appointed by the competent authority to inquire a specified matter or dispute, and to adjudicate or give judgement on it. It includes, within its ambit, all adjudicating bodies, provided they are constituted by the state and are invested with judicial as distinguished from purely administrative or executive functions. The expression ‘a court’ in the technical sense is a tribunal constituted by the state as a part of ordinary hierarchy of courts, which is invested with the state’s inherent judicial powers.
The tribunal as distinguished from the court exercises judicial powers and decides matters brought before it judicially, or quasi-judicially, but it does not constitute a court in the technical sense. It can compel witnesses to appear, can administer oath, and is required to follow certain rules of procedure. It may not be bound by the strict and technical rules of evidence, but, nevertheless, it must decide on evidence adduced before it. It may not be bound by other technical rules of law, but its decisions must, nevertheless, be consistent with the general principles of law.
In other words, it has to act judicially and reach decisions in an objective manner, and it cannot proceed purely administratively or base their conclusions on subjective tests or inclinations. The procedural rules which regulate the proceeding before the tribunals and the power conferred on them in dealing with matters brought before them, are sometimes described as the ‘trappings of a court’, and in determining the questions as to whether a particular body or authority is a tribunal or not, sometimes a rough and ready test is applied by requiring whether the said body or authority is clothed with the trapping of a court.
Both the tribunal and the court are adjudicating bodies, and they deal with and finally determine disputes between parties, which are entrusted to their jurisdiction. The procedure followed by the courts is regularly prescribed in discharging their functions and exercising their powers, the courts have to conform to that procedure. The procedures which the tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the courts and the tribunals is substantially the same, and there are very little essential differences between the functions that they discharge. As in the case of courts, so in the case of tribunals, it is the state’s inherent judicial power, which has been transferred, and by virtue of the said power, it is the state’s inherent judicial functions, which they discharge. However, tribunals are set up under separate laws as distinct from regular hierarchy of courts which are recognized by the civil or criminal procedure codes except the higher judiciary which derives its authority from the constitution.
One of the important examples of special tribunal during Pakistan period relates to Ordinance No. V of 1968. The stated purpose of the law was to provide for the trial by special tribunal of certain offences. The offences related to conspiracy against the state, abetting the commission of mutiny by an officer, soldier, sailor or airman, or of attempting to seduce any officer, soldier, sailor or airman from his allegiance or his duty. These offences were otherwise punishable under the penal code. Still, the government of Pakistan thought it expedient to promulgate the ordinance to set up special tribunal to try these offences. The result was that these offences were kept out of the jurisdiction of the regular courts.
The government of Pakistan set up a special tribunal for trial of sheikh mujibur rahman and others, known as the agartala conspiracy case. Following countrywide protest, the ordinance setting up the tribunal was repealed in 1969.
The constitution of the People’s Republic of Bangladesh as it was adopted in 1972 does not refer to tribunals. Under the constitution, the High Court Division is vested with powers for superintendence and control over all courts subordinate to it. The word “tribunals” was inserted after the word “courts” by the Constitution (Twelfth Amendment) Act 1991. Other cases of special tribunal dates back to 1960. Bangladesh Anti-Corruption (Tribunal) Ordinance, 1960 provides for setting up tribunals for speedy trial of offences punishable under the Bangladesh Anti-Corruption Act, 1957.
Another example of a law constituting tribunals for the trial of specific offences is embodied in Act VII of 2000. It is the Public Safety Act, 2000. The expressed intention of the act is to control crimes affecting public safety. The offences cover such areas as illegal extortion of money, intimidating bidders in tender, breaking vehicles or damaging other properties, obstructing traffic, demanding ransom, etc. Under the law, the government can appoint tribunals for one or more districts including metropolitan areas to try offences under the Act. The tribunal will be headed by a judicial officer of the level of district and sessions judge. The government may also depending on need, appoint a district and sessions judge to dispose of cases of the tribunal in addition to his own duties.
The framework of judicial administration specially the higher judiciary is outlined in the constitution of Bangladesh. The constitution does not refer to special courts. It does, however, refer to the fact that the High Court Division shall have superintendence and control over all courts and tribunals subordinate to it. The word tribunal was not there in the original constitution of 1972. It was inserted by the Constitution (Twelfth Amendment) Act, 1991.
Tribunals or special courts are set up under different acts dealing with particular offences. In fact the distinction between special courts and special tribunals is not very clear. Both are courts empowered under the relevant acts to try offences as defined in the acts. In practice, however, the distinction lies in the importance of the offences. The word tribunal is used in cases where offences are of serious and grave nature requiring trial by district and sessions judges or similar other judicial officer. On the other hand, special courts, may be headed by specially empowered magistrates.
It is possible to cite many examples of special courts in the Bangladesh context. The Bangladesh Food (Special Courts) Act, 1956 (Act X of 1956) provides for setting up of courts for speedy trial of offences relating to food stuffs. Offences under this Act are tried by special magistrates appointed by the government. Similarly, offences under Emigration Ordinance, 1982 (Ordinance XXIX of 1982) are triable by special courts set up under this law.
At the other end, there are examples of tribunal to try specific offences under a particular law. The Bangladesh Anti-Corruption (Tribunal) Ordinance, 1960 provides for setting up tribunals for speedy trial of offences punishable under the Bangladesh Anti-Corruption Act, 1957. The law setting up of tribunal does not, however, use the word special. It simply states that tribunals shall be set up having exclusive jurisdiction to try offences as defined in the Bangladesh Anti-Corruption Act, 1957. It further states that every Session’s Judge, within the territorial limits of his jurisdiction, shall constitute a tribunal. [A M M Shawkat Ali.]
Law and Justice regarding Speedy Tribunal
The present government, during the last two years has undertaken several epoch making steps to establish rule or law, to infuse dynamism in judiciary and to ensure justice. Judiciary is now separated from Executive . Amendment has been made in the age-old criminal and civil laws aiming at decreasing the number of cases and to dispose cases within shortest time at lower cost. Alternate Dispute Settlement Act has been passed. Debt Settlement Court Act has been framed to rid the nation of debt defaulter culture. Speedy Trial Tribunal Act has been enacted for speedy disposal of sensational and notorious cases like murder, rape, etc. Under this act 2,025 notorious offenders were sentenced to death penalty. Trial of 425 sensational cases has been completed. It has influenced other courts for speedy disposal of cases under trial. People of Bangladesh have got back their confidence in courts. By this time about 1,200 poor and helpless people have been provided legal aid at government’s cost. Death by hanging of notorious terror Ershad Shikder, 3 policemen and 16 others has so far been carried out.
Speedy trial of criminal cases
Article 35 of the Constitution guarantees it as a fundamental right that every person accused of a criminal offence shall have the right to a speedy trial by an independent and impartial court or tribunal established by law. This important aspect of fundamental right had hitherto been neglected. The existing courts and the normal procedure could not ensure speedy disposal of criminal cases. The Legislatures took the matter into serious consideration. Government thought that immediate steps needed to be taken in this respect. As a meaningful step towards that end, a special law titled “the Law and Order Contravening Offences (Speedy Trial) Act, 2002 and “the Speedy Tribunal Act, 2002 were enacted. These legislative measures have brought about appreciable qualitative changes in the country’s criminal justice delivery system. The model of successful speedy trial of criminal cases has been set upon sound footing to be further replicated and rolled over.
Crime Statistics
(Number of registered cases from 2003 to 2007)
| SL | Name of Offence | 2003 | 2004 | 2005 | 2006 | 2007 |
| 1 | Dacoity | 949 | 885 | 796 | 795 | 1047 |
| 2 | Robbery | 1,170 | 1,207 | 898 | 843 | 1,298 |
| 3 | Murder | 3,471 | 3,902 | 3,592 | 4,166 | 3,863 |
| 4 | Speedy Trial Act | 2,179 | 2,053 | 1,814 | 1,638 | 1,980 |
| 5 | Rioting | 890 | 754 | 570 | 570 | 263 |
| 6 | Cruelty to Women | 20,242 | 12,815 | 11,426 | 11,068 | 14,250 |
| 7 | Child Abuse | 475 | 503 | 555 | 662 | 967 |
| 8 | Kidnapping | 896 | 896 | 765 | 722 | 774 |
| 9 | Police Assault | 271 | 280 | 240 | 337 | 278 |
| 10 | Burglary | 3,883 | 3,356 | 3,270 | 2,991 | 4,439 |
| 11 | Theft | 8,234 | 8,605 | 8,101 | 8,332 | 12,015 |
| 12 | Arms Act | 2,293 | 2,370 | 1,836 | 1,552 | 1,746 |
| 13 | Explosive Act | 499 | 477 | 595 | 308 | 232 |
| 14 | Narcotics | 9,494 | 9,505 | 14,195 | 15,479 | 15,622 |
| 15 | Smuggling | 4,499 | 4,181 | 4,334 | 4,734 | 5,202 |
| 16 | Others | 66,194 | 67,531 | 73,180 | 76,381 | 22,802 |
| Total | 1,25,639 | 1,19,320 | 1,26,167 | 1,30,578 | 1,57,200 |
Speedy Trial Courts
Under the Law and Order Contravening (Speedy Trial) Act, 2002 (Act No 11 of 2002), Speedy Trial Courts have been established in all the districts. Such courts are trying offences of extortion, toll collection, damage to private and government properties, obstruction in dropping tenders, obstruction in transportation and performance of official duties etc. Magistrates of First Class are presiding over such courts. Under the Law, the Speedy Trial Court award sentence of imprisonment up to five years. The said courts are laudably performing their jobs in disposing of criminal cases expeditiously in record short times.
An outstanding feature of the Law is that most of the cases in the Speedy Trial Courts have been disposed of within six to twelve months. Such trial otherwise normally might have taken four to five years. Another important feature is that in 65% of the cases, the accused have been found guilty and convicted, which otherwise by normal courts and under normal procedure might have been hardly 20%. The positive variation is certainly on account of the reformed system’s in-built efficiency.
1. Speedy Trial Tribunals
A total of nine Speedy Trial Tribunals were established under the Speedy Trial Tribunal Act, 2002 (Act No 28 of 2002). The Act was effective from 24 October, 2002. An outstanding feature of the measure is that most of the cases have been disposed of within three to nine months after start of trial, which otherwise normally might have taken three to five years. Another important feature is that in 80% of the cases, the accused have been found guilty and convicted on account of the system’s efficiency. Such efficiency is attributable to the legislative framework and consequential speed in trial. The conviction rate under usual system would not have been more than 15%.
Speedy trial and judiciary
It was introduced to expedite the process of justice. Though the cases that were to be tried under the new law had certain indicators. In the clause six of the act, it is clearly stated that cases involving murder, rape, possession and accretion of firearms, explosives and drugs are fit to be tried in this tribunal. As the law and order situation has sunk to an unprecedented low, the government has enacted this new law that would speed up the trials of certain cases. The law is hinged upon two things, one is the establishment of the special tribunal and the other is transferring of the cases to this tribunal.
The tribunal can sit at any place according to government directive. Not all cases will be investigated under this system. One of the essential features of speedy tribunal is that it is the government’s prerogative to decide which cases merit quick justice. Any case that would be considered to be tried under the new act is transferable from the Magistrate court, the sessions court, or any special court to the newly set up tribunal. Even if the trial procedure had progressed to a certain stage, the case would be transferred to the Speedy Trial Tribunal, which would be considered a sessions court. On trial cases can also be transferred to the special tribunal. If this occurs, the special tribunal will pick up where the regular court has left off. Meaning the evidence gathered during the regular trial would be considered good.
Cases can be lodged directly with the speedy trial tribunals. Cases that are currently being dealt under the normal legal system can also be transferred to the speedy trial tribunal. The punishments meted out to the accused if they are found guilty are the same as that of in the ordinary court system.
In a speedy tribunal, the ‘punishments’ do not change. Criminals are tried under the country’s existing penal code.
The judges in the special tribunals are district judges belonging to the sessions courts. Even retired judges would be appointed to preside on cases under the speedy trial tribunal. Selected by the president, the judge of each tribunal will follow the laws furnished in the speedy trial act. It is the government who will decide where and when a case will be transferred to the special tribunal. And this would be done through pronouncement of a gazette on the part of the government.
The highest punishment meted out to a person tried under this act would be the death penalty or life long imprisonment. If the verdict is either death sentence or serving of a life term or even more than seven years imprisonment, then the trial procedure must be completed within 90 days. If a case is not determined within this time span, then it would be extended for another 30 days. If this extension seems inadequate, another 15 working days would be set to complete the trial to reach a verdict.
Other categories of crime that will fall under the speedy trial act are as follows: extortion, or forcing something out of someone by intimidation or force to willfully change the direction or to intentionally damage any vehicle to destroy the property of the Government or any other person mugging, terrorism; obstruction of buying or selling of documents of any organization; to prevent an organization or a person from doing his or her work through means of threat or force. Those who are found guilty of these charges will be facing two to five years of imprisonment. Law-breakers may also have to pay fines. And those who abet in such crimes will face the same punishment. If anyone is found to be harassing someone or presses false charges against anyone he or she will be liable to the same punishment as well.
Rule of Law and speedy tribunal
Rule of Law the principle that the process of government is bound up with the law, and that law is supreme. In specific operational terms, it envisages that a government in power must act according to law, and that by implication it gives every citizen remedies if his or her rights are infringed. The rule of law may, therefore, be said to prevail when the exercise of all forms of public authority is subject to review by the ordinary courts of law to which all citizens have equal access.
The pattern of the rule of lawvaries from country to country. The general principles ensuring the rule of law in England are mostly the results of judicial decisions determining the rights of private persons in particular cases brought before the courts as well as the natural rights of the Englishmen which have been declared in Magna Carta (1215), the Petition of Rights (1628), and the Bill of Rights (1689). English traditions, conventions, usage and the long history of the evolution of the English political institutions have molded English awareness of individual rights which are as sacred and inviolable as the constitutionally written charters of many newly emergent nations. In most newly emergent nations they are incorporated and made part of the constitution.
Historical background During British rule in India establishment of rule of law was seriously hampered due to section 144 of the criminal procedure code and the preventive detention laws. The adapted interim constitution of united Pakistan had no provisions foreshadowing the features of the Bill of Rights. Due to the unhappy experiences under the rule of law during British rule, lack of English tradition of democratic practices, and need for the protection of religious minorities there was a preponderance of views in favour of incorporating the Bill of Rights in the constitution of the country. Both the first constituent assembly and the second constituent assembly adopted oft-quoted liberties, with certain qualification, such as equality of opportunity and status, social, political, and economic justice, freedom of thought, expression, association, movement, belief, worship and faith; and civil liberties such as right to life, liberty and property were also granted. However, all these were granted with the usual qualifications and safeguards as found in most constitutions. With regard to civil liberty an important provision was incorporated to the effect that an individual could not be detained without being informed, ‘as soon as may be’ of the ground for such arrest and would not be denied the right of legal consultation and defense.
Moreover, such an individual was to be produced before the magistrate within 24 hours of his detention, and no further detention was allowed except on the order of the magistrate. Similar provisions were also adopted in the constitution of 1962. It seemed that democratic order of a limited government and rule of law was established in Pakistan. But in reality there were many restrictions, which had been imposed during British rule, continued later to curtail the civil liberties in Pakistan. Prohibitions of holding of public meetings or processions in a specified area, maximum punishment of transportation for life for alleged attempts to excite dissatisfaction against the government and restrictions on the press were allowed to continue under Section 144 of the Code of Criminal Procedure. But the most serious restrictions on the civil liberties in Pakistan were those imposed under the Security of Pakistan Acts, which provided for preventive detention.
Under the Preventive Detention Act the government was given the power to detain any individual with a view to preventing meetings, or acting against the government prejudicial to the defense or the security of Pakistan. The individuals, political parties, newspapers all came under the purview of the Security Act, and the government could take actions against any organizations in the name of protecting Pakistan’s security or maintaining the public order. These were a serious abridgement of the fundamental rights of the people but were kept on the statute book due to potential internal and external threats to a newly independent country. So, during Pakistan period the declarations of rights in the constitutions were not only specified with certain qualifications but also had the preventive detention, whose very spirit seemed incompatible with a democratic order.
Bangladesh period Following liberation of Bangladesh in 1971 much of the features of the Bill of Rights were incorporated in the constitution with similar and usual qualifications. The fundamental rights enunciated in Part III of the constitution are borrowed from the constitutions of Pakistan (1956 and 1962) and the Indian constitution. As expected, they are restricted with familiar qualifications.
The rights granted under the 1972 constitution were the usual ones, such as equality of status, opportunity and religion, equality before the law; protection of personal liberty and life; safeguards against unreasonable arrest or detention, trial or punishment; social, economic and political justice; and freedom of expression. Bangladesh being a homogeneous country did not make any provisions for minority rights as enunciated in the constitutions of India and Pakistan. Article 27 established the English idea of legal equality or universal subjection of all classes to one law administered by the ordinary courts, as well as equal treatment under the law in all spheres of public life. The legal aspect of this doctrine is fundamental in any country, which is governed by the rule of law. It is manifested in Article 29, which guaranteed equal opportunity in public employment. Article 28 stipulated no discrimination ‘against any citizen on the ground of religion, race, caste, sex or place of birth’, indicating state’s endeavours to grant social justice. The right to property, again with qualifications, was granted under Article 42(l).
The concept of limited government and rule of law was reinforced through Article 32 which guaranteed the inner core of fundamental rights, a person’s right to life and liberty. This right indicates the absence of arbitrary powers of the executive and the promise for the individual right to liberty. It stipulates ‘that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land’. For the protection of individual liberty a citizen has the right to the protection of law and cannot be kept in custody without legal grounds for arrest, not be denied the right to consult or to be defended by legal counsel, must be produced before a court within 24 hours of arrest, and cannot be detained further without the order of a court. The higher courts were given the power to enforce these rights. They could, within their respective jurisdictions, issue certain writs such as habeas corpus, mandamus, prohibition, quo warranto and certiorari. However, article 47(2) specified in the First Schedule, which was made during the interim period and before the passing of the constitution, restricted the unfettered enjoyment of certain fundamental rights. But it is to be noted that the 1972 constitution of Bangladesh had no provisions which abridged the inner core of fundamental rights. The framers of the constitution seemed to have preferred fundamental rights without any safeguards in the form of preventive detention, or security act or provisions for emergency. So the absence of stringent safeguards and any provisions for declaring a state of emergency under which the fundamental rights would remain suspended and the courts would lose its power to enforce fundamental rights, made the concept of limited government and rule of law in the country quite effective.
It is evident from the above discussion that the constitution, without the familiar provisions of declaring a state of emergency, preventive detention or security act, the framers of the constitution seemed to be determined to create an environment conducive to a free and democratic society. But unfortunately, their exuberance was short-lived and this situation did not last long. Within a year and a half, emergency provisions were added to the constitution. Soon the security act, the special powers act and several other restrictive measures were adopted. The net result of all these changes and additions was that the original idealistic concept of a free society was diluted. By 1974, the constitution was a close copy of the Pakistani constitution of 1956, rather than an unqualified document for a free society. Country’s deteriorating law and order situation and desperate economic conditions were deemed to be the reasons for the inclusion of the provisions, which genuinely affected the rule of law and fundamental rights.
Speedy tribunal and its popular cases
Parents of Rubel and Jewel who were killed in Mohammadpur by Kamal Pasha.
It was introduced to expedite the process of justice. Though the cases that were to be tried under the new law had certain indicators. In the clause six of the act, it is clearly stated that cases involving murder, rape, possession and accretion of firearms, explosives and drugs are fit to be tried in this tribunal.
As the law and order situation has sunk to an unprecedented low, the government has enacted this new law that would speed up the trials of certain cases. The law is hinged upon two things, one is the establishment of the special tribunal and the other is transferring of the cases to this tribunal.
The tribunal can sit at any place according to government directive. Not all cases will be investigated under this system. One of the essential features of speedy tribunal is that it is the government’s prerogative to decide which cases merit quick justice. Any case that would be considered to be tried under the new act is transferable from the Magistrate court, the Session’s Court, or any special court to the newly set up tribunal. Even if the trial procedure had progressed to a certain stage, the case would be transferred to the Speedy Trial Tribunal, which would be considered a Session’s Court. On trial cases can also be transferred to the special tribunal. If this occurs, the special tribunal will pick up where the regular court has left off. Meaning the evidence gathered during the regular trial would be considered good.
Cases can be lodged directly with the speedy trial tribunals. Cases that are currently being dealt under the normal legal system can also be transferred to the speedy trial tribunal. The punishments meted out to the accused if they are found guilty are the same as that of in the ordinary court system.
In a speedy tribunal, the ‘punishments’ do not change. Criminals are tried under the country’s existing penal code.
The judges in the special tribunals are district judges belonging to the Sessions Courts. Even retired judges would be appointed to preside on cases under the speedy trial tribunal. Selected by the president, the judge of each tribunal will follow the laws furnished in the speedy trial act. It is the government who will decide where and when a case will be transferred to the special tribunal. And this would be done through pronouncement of a gazette on the part of the government.
The highest punishment meted out to a person tried under this act would be the death penalty or life long imprisonment. If the verdict is either death sentence or serving of a life term or even more than seven years imprisonment, then the trial procedure must be completed within 90 days.
If a case is not determined within this time span, then it would be extended for another 30 days. If this extension seems inadequate, another 15 working days would be set to complete the trial to reach a verdict.
Other categories of crime that will fall under the speedy trial act are as follows: extortion, or forcing something out of someone by intimidation or force to willfully change the direction or to intentionally damage any vehicle to destroy the property of the Government or any other person mugging, terrorism; obstruction of buying or selling of documents of any organization; to prevent an organization or a person from doing his or her work through means of threat or force. Those who are found guilty of these charges will be facing two to five years of imprisonment. Law-breakers may also have to pay fines. And those who abet in such crimes will face the same punishment. If anyone is found to be harassing someone or presses false charges against anyone he or she will be liable to the same punishment as well.
1 A speedy trial tribunal handed down Tonai Mollah life imprisonment in the Advocate Habibur Rahman Mondal murder case
As for the procedure of the trial, the criminal act laws would be followed as far as possible. In this regard the law that has created much hype-n-hoopla in the public consciousness and whipped up a frenzied reporting spree in the media, has more to do with speeding up of a process that is caught in procedural jam. The cases, even the hyped up ones, used to take a long time to wrap up. As the journey through the loops of filing of a case, compilation and filing of the evidence by the police, hearing and deliberation is never as smooth as it should be. The Speedy Trial Act is conceived as a solution. This act cuts the long and sinewy journey short. It also alleviates the system that has almost become crippled with more than ten lakhs cases standing in queue.
How does the speedy trial system work? The investigating police officer working on a particular case has to hand over the accused to the court within 24 hours along with the FIR (First Information Report). Then the police officer has to submit the detailed report explaining the alleged involvement of the accused to the court in the next seven days. The accused is then given 30 days to deny the charge against him and plea his innocence.
In the instance in which the main accused cannot be captured by the police, the FIR has to be produced to the court in seven days. If the court feels that there is not much chance of apprehending the accused, it can order him to surrender in seven days through a public notice in a Bangla daily. In this kind of situation the court has to continue with the legal procedure without the accused and complete the case in 60 days time. Once the investigation is complete, the court has the right to issue bail to the criminal if it feels so.
Although the public has welcomed the introduction of speedy trial tribunal, some have expressed their doubts about the efficacy of the system too.
‘The Speedy Trial Tribunal Act 2002’ was implemented from last October. And within eight months of its implementation, verdicts were given to more than 100 cases of murder and rape. According to an Ittefaq report published on June 30, 27 persons have been punished with death sentence, and 52 convicts were awarded with life imprisonment.
Some of the most talked about cases that have been resolved include —Principal Gopal Krishna Mohuri murder (4 received death penalty, 4 life imprisonment), Farida Begum murder in Dhaka ( 2 life imprisonment), Housewife Halima rape case (4 get life imprisonment), Sutrapur double murder (16 death sentence and 3 life imprisonment), Narsigndi Awami League leader Rabiul Awal Khan Kiran murder (1 death, 7 life), Advocate Habib Mondol murder (2 death, 13 life), Jhenidah Selim murder ( 3 death sentence), Bagerhat former UP member murder (16 life imprisonment), Fahima suicide case ( 1 death, 2 life imprisonment), Rushdania Islam Bushra rape and murder case (3 death, 1 life), Don, Ribel and Jewel and Ratna.
2 Don, a child victim of dowry violence.
The Government has the prerogative to transfer any case to the speedy trial tribunal that it feels need to be resolved quickly. But the speedy trial act gives any citizen the right to file a case of harassment or mugging in the police station.
On July 17, 2002, nine year old Trisha of Gaibandha drowned while running away from a group of mastaans on her trail. The rowdy young men who used to tease and torment her regularly on her way home from school, pursued Trisha relentlessly that day and when she reached a point where there was nowhere to escape, the frightened child jumped into the pond. She didn’t know how to swim but instead of rescuing her, the men just stood there and watched her drown. Following Trisha’s tragic death, a massive public outrage in Gaibandha as well as all over Bangladesh took place. The protest movements helped to speed up the legal process and verdict in Trisha’s case was delivered in only 73 days by the District and Sessions court on September 30,2002. The charge of murder was pressed directly against three of the accused Mehedi Hasan Modern, Md. Shahin, and Ariful Islam Asha and they were given death sentence.
The verdict delivered Trisha’s case restored the ordinary citizen’s faith in the legal system and paved way for a new process known as the Speedy Trial Tribunal system.
Thirteen-year-old Fahima was forcefully grabbed by three neighbourhood mastaans Shumon, Nasir and Halim near her house in the Tolarbagh area of Mirpur at around 9:30 pm on March 3, 2002. She was raped by Shumon. Deeply traumatised by the experience, Fahima committed suicide the same night at her house. Fahima’s father Abdul Jabbar had filed a case in Mirpur thana under the “Prevention of the Repression of Women and Children Act 2000”. The hearing of the case was pending for almost ten months due to the absence of any eyewitness. The case was transferred to the speedy tribunal on May 18. And verdict was given in only 41 days. The court found Shumon guilty of violating teenaged Fahima with the help of Nasir and Halim. Shumon was awarded with a death sentence, according to section 9(2) dealing with rape, under the “Prevention of Repression of Women and Children Act 2000”. The other two accomplices were given life imprisonment as stated in section 9(2)/30 (abetting in rape). Moreover, Nasir and Halim have to give the victim’s family Tk 1 lakh each as compensation. The failure to produce the fine will extend their sentence to another two years.
Sabequnnahar Sony, a student of Chemical Engineering department of BUET was killed on campus in broad daylight in crossfire between two rival student factions of BNP on June 8, 2002.The case was handled by CID and after six months of investigation, the charge sheet was produced to the court on January 1, 2003 in which, 15 people were named as being involved the killing that lead to Sony’s death. On January 19, the case was transferred to the Speedy Trial Tribunal. The verdict of Sony’s case was declared on June 29 this year. The court awarded death sentence to Mokammel Hayat Muki, Mushfiquddin Tagar, Nurul Islam Sagor alia Shooter Nuru. The criminals also have to pay a fine of TK 10,000 each. The others who were involved in the crossfire namely, Mukul, Dulal, Earu, Masum Billah and Masum have been given life imprisonment and have been ordered to pay TK 5,000 each as compensation. Failure to pay the fine would extend their jail sentence to another year. Among the 15 names of the accused stated in the charge sheet, seven of them were acquitted due to lack of evidence. Eventhough Mushfiquddin Tagar has been arrested, Muki and Shooter Nuru are still absconding. Muki and Tagor’s gangs were engaged in an armed battle to win ‘control’ of the BUET campus and its surrounding areas. The court found the culprits guilty under the Penal Code’s 300 (4) and section 301 relating to murder. They were punished under Section 302 and Section 34 for murder.
3 Police taking Mohammad Ripon to the Dhaka Central Jail after a tribunal sentenced him to death for killing a five-year-old child Don.
Rushdania Islam Bushra (Phool) was raped and then killed in her own home by her own relatives on July1, 2000 in Dhaka. She was an Honours student of Marketing at City College. The case dragged on for three years and finally the case was shifted to the speedy tribunal. On June 30, the vedict was declared. Three of the accused in the Bushra murder case were given death sentence. They are former Awami League leader of Dhaka city unit M.A.Quader and his two brothers-in-law Sheikh Showkat Ahmed Ruhuland Sheikh Kabir Ahmed. Kabir has disappeared since the day Bushra was killed. The court also ordered the convicts to pay TK 1 lakh each as compensation to the victim’s family. Runu, M.A. Quader’s wife was awarded with life imprisonment and a fine of Tk. 1 lakh. She would have to serve an extra two more years for failing to pay the fine.
Another accused, Kaniz Fatema Hena, sister-in-law of Quader and Sufia Begum, the domestic help were cleared of charges against them in connection with the rape and murder. Bushra was the only child of her parents. Her father Serajul Islam was a retired Assistant Police Commissioner of police. He was undergoing treatment in the US, at the time of the incident. He passed away last year. The motive behind killing Bushra was to take hold of the house which belonged to Bushra’s maternal uncle. Bushra would have been the likely person to inherit it.
The accused in the Don murder case Ripon, was sentenced to death in the Speedy Tribunal-1 on July 2, 2003. On August 19, 2002, Ripon killed his brother-in-law Rubel Ahmed Don for dowry and property, pushing him into a drain where the 5-year-old met his death.
On July 5, 2003 two of the four accused in the Ratna murder case were given death penalty while the other two were given life imprisonment. On August 9, 2003, little Ratna was slaughtered by her neighbour Rubel, assisted by Yunus, Ibrahim and Zakir, following a trivial scuffle between Ratna and Rubel’s younger brother Imon the previous day. After the case was sent to speedy trial tribunal on March 3, 2003 it was disposed in forty one working days.
In another sensational cases, one of Dhaka’s 23 top terrorists Kamal Pasha was sentenced to death for murdering two brothers Jewel and Rebel in Mohammadpur on July 3, 2003. The special tribunal found him guilty under Section 302 (murder) of the Penal Code. The principal witness of the case was the victims’ mother Hanufa Begum. Kamal Pasha called the two brothers in half an hour’s difference from their house and shot them dead in two different places in Mohammadpur.
4 SM Kamruzzaman Faruq, after another tribunal handed down death penalty to him for killing his wife.
Advocate Salma Ali, Executive Director of Bangladesh National Women Lawyers’ Association (BNWLA) in an interview with daily Prothom Alo, said that the trials were conducted efficiently under the Speedy Tribunal, conforming to the existing laws. She also believes that the families of victims finally got justice. “ If culprits are captured and if exemplary punishment is meted out to them as quickly as possible, not only can victims of abuse, murder hope to get justice, but the number of such crimes would also come down.”
Even though the Speedy Tribunals have delivered the verdicts, the families of the victims are still not completely satisfied. Unfortunately, the cases will now go to the High Court which does not have any mechanism to deliver justice as quickly as the speedy tribunals. Salma Ali feels that the High Court needs to consider changing the system as well as increase the number of judges to ensure that serious cases don’t get stuck for an indefinite period. She also expressed her hope that the time factor does not cause the speedy tribunals to lose objectivity so that no innocent person gets convicted.
The setting up of speedy trial tribunals has been met with mixed reactions. While the public has greatly appreciated it, some scepticism nevertheless exists. Eminent lawyer Dr. Shahdeen Malik explains why he doesn’t agree with the general notion that this speedy tribunal law is a good one.
He reflected on what the relatives of the victims expressed after the courts gave their verdictsall of them wanted to see the immediate execution of the convicted criminals. But chances are that many of those verdicts may be altered on appeal. Many death sentences may not be confirmed or some punishments may be reduced by the High Court Division. At this point, near and dear ones of the victim may feel betrayed by the changed decision of the High Court, particularly in view of the hyped up expectations generated by the media and to some extent, by the government. The ordinary people are not aware of the strict scrutiny which law mandates, before a person’s life is taken away by carrying out the death sentence. If verdicts in these much-publicised cases are over-turned by the High Court, most people may not understand the legal process involved and may have doubts about the functioning of the higher courts of appeal. This certainly will not augur well for our judicial system, apprehends Malik.
Not all types of cases are considered worthy for speedy trials. In fact the main reason behind forming such special tribunals seems that these would deal only with the ‘sensational’ or ‘much-publicised’ cases. Malik finds the perception of ‘choosing on the basis of media-coverage’ itself questionable. “I find it unjustifiable that one particular murder case is being resolved early simply because it made newspaper headlines and/or was shown on television news leaving hundreds other similar cases to be dealt with by the same old sluggish system”, Malik argues.
5 Sony’s family members, offering prayers at Sony’s memorial on the BUET campus after announcement of the judgment
No doubt the bereaved family members or close relatives of the victims will greatly appreciate this special arrangement. But they are and will be very small in number in comparison with those who won’t be entitled to such privilege of seeing their cases of murder of their loved ones come to quick conclusion. Consequently, a large section of people whose cases don’t or won’t qualify to be taken up by the speedy trial tribunals might feel ignored and frustrated, Malik observes.
Again, since these speedy tribunals will hear the sensational cases, it is not absolutely impossible that judges will be influenced by strong public pressure, Malik points out. He recalls the highly publicised Rima murder case where the trial court handed down death penalty to Khuku (girl-friend of Rima’s husband Munir) along with Munir. It was presumed that the immense public following fanned by vigorous media coverage may have led to the outrageous decision of giving Khuku death penalty. Khuku was, of course, acquitted later on by the High Court.
Awami League, the then main opposition in the Parliament, had opposed to the law. According to them, since it is the government’s prerogative to decide which case will go to the speedy trial and which not, the government can use it to harass their political opponents. They termed it a publicity stunt, a calculated ploy of the government for gaining popularity.
Malik believes that such ‘quick fixes’ like speedy trial or special tribunal might look very effective in the beginning but they never bring about any qualitative change in the long run. Moreover, we haven’t had a government which did not try to fix a time limit for completion of trials and initially some cases were concluded speedily. But, it was back to square one, after a few months. Because, an effective judicial system is not confined to only court-room activities, it depends on a lot of support services in order to function smoothly and quickly.
Investigation into criminal cases too is the most vital component of the entire criminal justice process. Unfortunately, the police department neither has sufficiently trained officials for conducting investigations, nor has the essential equipment and resources for this purpose.
Consequently, criminals often manage to get away by taking advantage of the loosely conducted investigations by the police and the resultant inadequate evidence. Besides, Malik points out, one main reason why cases drag on for months is inadequate manpower of the police. The lawmaker finishes his or her job only by making laws, it is the field level police officials who have to translate those laws into action. Instead of enacting new laws the government should address the problems that ail our police department. A competent police force with enough skill, expertis