Criminal Justice and Due Process For Master of Laws (LLM)

1. Criminal Justice & Due Process
Master of Laws (LLM)

2. 1. Notion of Due Process
There is no specific and comprehensive definition of
due process in any treaty and convention since it is
comprised of plenty of numerous and complex
standards and difficult to formulate a comprehensive
definition. Although due process guarantees are
explicitly set out in international and regional
instruments as well as domestic law but these are
not absolute or exhaustive. In addition to the specific
standards, there are residual standards.

3. Due process form an essential part of all legal
systems and due process demands a fair judicial
process administered by an impartial judiciary.
A brief examination of the literature of many scholars
will make the notion of due process/fair trial
guarantees clear. From the viewpoints of different
scholars fairness and impartiality are considered as
pre-requisites for due process. The concept of due
process of law is equated with that a trial is fair if it
satisfies the substantive and procedural
requirements of due process of law.

4. Foster confirms that the right to fair trial lies at the
heart of any democratic society which prides itself on
fairness, justice and the rule of law. Foster also
expects that natural justice will be applied where a
person’s liberty, goods and welfare are at stake and
the fairness and legality of judicial process will be
measured against those principles.
According to Weissbrodt, the right to fair trial/due
process consists of a complex set of rules and
practices not focus on a single issue.

5. Wiaderek argued that a trial may not conform to the
general standards of ‘fair trial’ if these residual
guarantees are not respected even though the
minimum rights have been observed.
Justice Cruz enumerates the following requirements
as an imperative to ensure procedural due process
which collectively establishes the foundation of a fair
trial:

6.  There must be an impartial court or tribunal
clothed with judicial power to hear and
determine the matter before it;
 Jurisdiction must be lawfully acquired over the
defendant;
 The defendant must be given the opportunity to
be heard;
 Judgment must be based upon a lawful and
legitimate hearing of the case.

7. 2. Basic Foundations on the Concept of Due process
About the notion of ‘fair trial’, the best-known theory
for evaluating criminal justice is Packer’s theory of
two basic models that developed in the 1960s.
Packer proposed that tendencies in criminal justice
might be evaluated by reference to two models: the
Crime Control model and the Due Process model.
The value system that underlies the Crime Control
model is based on the proposition that the
repression of criminal conduct is by far the most
important function to be performed by the criminal
process.

8. On the other hand, due process model insists on
fairness criteria and other protection for the suspect,
the formal and open adjudication of the facts in the
court, equality between the parties, the possibility of
appeal and maximum protection of the innocent.
The Due Process model which upholds the idea of
equality requires the adversarial fact finding
processes, a public hearing by an impartial tribunal
and its evaluation only after accused’s right to
discredit the evidence against him.

9. 3. Introduction to International Treaties Applicable
to Due Process
Due process or fair trial not only as a fundamental
element of the notion of the rule of law but also as a
norm of international human rights standards
mapped to protect individuals from the unlawful and
arbitrary curtailment or deprivation of other basic
rights and freedoms, the most prominent of which
are the right to life and liberty of the person.

10. With the development of criminal justice system and
evolution of fair trial norms throughout decades, the
position of an accused person is being changed.
Criminals are no more considered as the devils which
have to be taken out of the society. Since criminal
justice involves punishments that affect the very basic
rights and freedoms including the right to life and
liberty of the person, so substantive and procedural
fairness must be guaranteed. They are normal human
beings who have had a moment of derailment or
were temporarily lost and needs to be recuperated for
the society.

11. The right to a due process encompasses all the
substantive and procedural guarantees of fair trial
laid down in international standards, subject to the
condition that it includes compliance with domestic
procedures, provided they are consistent with
international standards. Historically, the notion of
sovereignty has been a bar to the application of
international legal norms to domestic criminal
justice processes on the ground that human rights
and criminal law are domestic issue.

12. But with the expanding impact of international
regulation of armed conflicts and the growth of
international criminal law have removed domestic
sovereignty hindrances that effectively began after
World War II. To protect and ensure basic human
rights for the people of the world, various
international human rights instruments have been
made. International human rights instruments also
require the minimum standards to be fully observed
before condemning an accused

13. The basic criteria of due process standards at
different stages of trial under the international legal
frameworks will be discussed here. In this context, it
will be focused on how the due process guarantees
have evolved under international system (United
Nations system) after World War II.
The foundation of the United Nations in 1945
together with the Charter of UN opens the new
door for the protection of human rights.

14. 3.1 The Charter of the United Nations
The principal sources of the contemporary conception of
fair trial are international documents. The international
standards under the United Nation’s systems against
which the fairness of a trial is assessed are numerous,
found in many different instruments and constantly
expanding by its new elements as fairness of trial is not
confined to definite list of rights.
The foundation of the modern human rights law has been
laid by the UN Charter. By emphasising the promotion
and protection of human rights as a principal objective,
the Preamble of the UN Charter reaffirms “faith in
fundamental human rights, in the dignity and worth of
the human person”.

15. Among other purposes of the UN, is the achievement
of international co-operation in promoting and
encouraging respect for human rights and for
fundamental freedoms for all without distinction as to
race, sex, language or religion according to Article 1(3)
of the Charter.
In addition to the above purpose, Article 1(1) of the
Charter places the promotion of respect for human
rights for the maintenance of international peace and
security. Although the UN Charter contains no specific
provisions to define human rights and fundamental
freedoms for the promotion and protection of human
rights but in evaluating the authority of the UN
Charter in the promotion and protection of human
rights and

16. fundamental freedoms, it is important to cite that
Articles 55(c) and 56 of the UN Charter imposes
legal obligation upon UN member States to take
joint and separate action in co-operation with the
UN, to promote universal respect for and
observance of human rights and fundamental
freedoms.
UN effort is reflected in the adoption of the
International Bill of Human Rights and in the vast
number of other human rights instruments in
existence today.

17. • In this context, UDHR was the first document of
International Bill of Human Rights where all States
agreed for the protection of the rights of person.
• It is important to mention that UDHR, together
with ICCPR and its two Optional Protocols and the
International Covenant on Economic, Social and
Cultural Rights and its Optional Protocol are referred
to as the International Bill of Human Rights.

18. 3.2 The Universal Declaration of Human Rights
The UDHR is the first international human rights
instrument adopted under the UN in 1948. This
document has been proclaimed “as a common
standard of achievement for all peoples and all
nations”. The UDHR contains 30 Articles among which
Articles 3 to 21 deal with civil and political rights and
Articles 22 to 27 deal with economic, social and
cultural rights. Several Articles including Articles 9, 10,
and 11 make most fundamental references related to
fair trial rights.
The first international instrument that has adopted a
significant number of fair trial standards is the UDHR.

19. Article 11 of the UDHR specifies the principle of
presumption of innocence, the rights to proper
guarantees to defend oneself, it constitutes the
fundamental rules of nullum crimen sine lege (principle of
Non-retroactivity) and nullum poena sine lege (Law must
be defined).
Apart from these, Article 3 of the UDHR protects the
right to life, liberty and security of person, the
fundamental right not to be subjected to torture or any
other cruel, inhuman or degrading treatments or
punishments has also been set forth in Article 5 of the
Declaration and Article 8 contains the right to have an
effective remedy for violations of fundamental human
rights.

20. 3.3 The International Covenant on Civil and Political
Rights
The ICCPR which is the international treaty on human
rights that elaborated the provisions of UDHR and
opened new area for the protection of human rights
through fair trial values and defend of the accused’s
rights.
A number of provisions relating to the fair trial standards
have been incorporated in the ICCPR. The extensive key
legal provisions relating to the right of the accused and
standards for fair trial are enshrined in its Part III in
Articles 6 (right to life), 7 (freedom from torture), 9
(liberty and security of the person), 10 (right to humane
treatment), 14 (the right to a fair trial), 15 (the principle
of non-retroactivity).

21. Aspects of Bangladesh
 No person shall be deprived of
life or personal liberty save in
accordance with law. (Article
32 of the Constitution of The
People’s Republic of
Bangladesh 1972).
 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 he be denied the right to
consult and be defended by a
legal practitioner of his
choice. (Article 33(1)).
 Every person who is arrested
and detained in custody shall
be produced before the
nearest magistrate within a
period of twenty- four hours
of such arrest, excluding the
time necessary for the
journey from the place of
arrest to the court of the
magistrate and no such
person shall be detained in
custody beyond the said
period without the authority
of a magistrate [Article 33
(2)].

22. Contd.
 No person accused of an
offence shall be compelled
to be a witness against
himself [Article 35(4)].
 No person shall be
subjected to torture or
cruel, inhuman or
degrading punishment or
treatment [Article 35 (5).
 Every person accused of a
criminal offence shall have
the right to a speedy and
public trial by an
independent and impartial
court or tribunal
established by law[Article
35(3)].

23. 4. Treaty Obligation of Bangladesh Concerning Due
Process/Fair Trial
• The ICCPR has three main characteristics. Firstly, it is
legally binding instrument upon the States when
they ratify it. It is to mention that treaties are not
binding on States unless or until it is ratified. The
preamble of the ICCPR also affirms that States
parties considering the obligation of States under
the UN Charter is under a responsibility to strive for
the promotion and observance of the rights
recognized in the ICCPR.

24. The preamble of the ICCPR also affirms that States
parties considering the obligation of States under the
UN Charter is under a responsibility to strive for the
promotion and observance of the rights recognized in
the ICCPR.
Secondly, the member States are obliged to take
necessary measures to comply with the standards set
forth in the ICCPR. Article 2 of the ICCPR provides sets
of responsibilities to the States parties.

25. These are: (a) under Article 2 (1) of the ICCPR, after
becoming a party to it State party undertakes to
respect and to ensure the rights specified in the ICCPR
to all individuals in its territory and under its
jurisdiction, without any discrimination;
(b) under Article 2 (2) States are required to take the
necessary legislative or other measures to give effect
to the rights of the ICCPR in their domestic law; and
(c) according to Article 2 (3) States are also required
to provide effective remedies to those whose rights
have been violated notwithstanding that violation
committed in official capacity

26. Thirdly, it has established Human Rights Committee
under Article 28 of the ICCPR to monitor compliance
with its norms. HRC under the two primary
mechanisms of ICCPR can monitor State’s compliance
with the rights of the ICCPR. These are:
(i) reporting procedure under Article 40 of the ICCPR
and
(i) inter-State complaint procedure under Article 41
of the ICCPR.

27. As regards to the application of international law,
Article 25 of the Constitution of Bangladesh provides
that inter alia the State shall base its international
relations on the principles of respect for international
law and the principles enunciated in the United
Nations Charter.
Article 7(2) of the Constitution of Bangladesh states
that the Constitution is the supreme law of the
Republic, and if any other law is inconsistent with this
Constitution that other law shall, to the extent of the
inconsistency, be void.

28. From this provision of Article 7(2) of the Constitution
of Bangladesh, it is clear that if domestic law conflicts
with international law, domestic law will prevail.
It is true that in the absence of any express provisions
in the Constitution about the status of international
treaty into domestic law or legislative requirements
for domestic application ultimately hampers the
observance of treaty obligations in Bangladesh.

29. However, the practice of Bangladesh is that
international treaties are required to be transformed,
incorporated into domestic legislation before its
application which is related to the dualist school of
law and according to dualist theory, international law
do not directly form part of the domestic law rather
transformation or incorporation is needed into the
legal system by legislation before domestic
application.
This view also has been reflected in various decisions
of the court. In the case of Bangladesh Jatiyo Mahila
Ainjibi Samity (BJMAS) v Ministry of Home Affairs and
others[2009] 61 DLR 371.

30. In this case the High Court Division viewed as under:
Our courts will not enforce those Covenants as
treaties and conventions, even if ratified by the State,
are not part of the corpus juris of the State unless
these are incorporated in the municipal legislation.
However, the court can look into these conventions
and covenants as an aid to interpretation of the
provisions of part III, particularly to determine the
rights implicit in the rights like the right to life and the
right to liberty, but not enumerated in the
Constitution.

31. So, as a ratifying state of the ICCPR, Bangladesh has
no scope from deviation of the observance of human
rights standards relating to fair trial.
The condition precedent for ensuring fair trial is
unrestricted access to the rights mentioned in the
UDHR, ICCPR and other international human rights
treaties.
But the practice of these minimum standards of
human rights that are enshrined in the constitutions
of Bangladesh as fundamental rights for ensuring fair
trial suffers from serious in many occasions. Human
rights are being violated or ignored in different times
and different ways despite Constitutional prohibition.

32. 5. State of Rationalization of Domestic Statutes
Individual’s dignity is the basis for the protection and
promotion of human rights. For the protection and
promotion of human rights and to ensure justice in
the society through due process, strong legal
framework is needed. Without a strong legal
framework and its proper enforcement, the rights
guaranteed in various international human rights
instruments cannot be protected. So Bangladesh is
needed to conform its domestic statutes to
international standards to comply with its
international obligation.
However, with the progress of my lecture we will find
out many statutes that covers due process standards.

33. It is pertinent to mention that Bangladesh has ratified
almost all the core human rights treaties namely: (i)
International Convention on the Elimination of All
Forms of Racial Discrimination 1965 (ICERD); (ii)
International Covenant on Civil and Political Rights
1966 (ICCPR); (iii) International Covenant on
Economic, Social and Cultural Rights 1966 (ICESCR);
(iv) Convention on the Elimination of Discrimination
against Women 1979 (CEDAW);

34. (v) Optional Protocol to Convention on the
Elimination of Discrimination against Women 1999
(OP CEDAW); (vi) Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or
Punishment 1984 (CAT); (vii) Convention on Rights of
Child 1990 (CRC); (viii) Optional Protocol to
Convention on Rights of Child in Armed Conflict 2000
(OP-CRC); and (ix) Convention on the Rights of
Persons with Disabilities 2006.