Public sentiment vs fair trial
No person can be condemned unheard. The accused must always have an opportunity to present his case, including the right to a counsel
The decision of lawyers not to stand beside the accused in the Sylhet MC College gang-rape case received huge public appreciation. The Jessore Democratic Lawyers' Association unanimously vowed not to defend anyone accused in a rape case.
In excruciating issues such as rape and murder, defence lawyers are usually defamed and go through character assassination.
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In the recent appalling rise of rape incidents in Bangladesh, people in social media are demanding that lawyers should not stand beside 'rapists'.
However, an accused cannot be treated as a docket number to be hastily processed and shoved to jail until he or she is proven guilty of the crime because it contravenes the Constitutional provisions and impedes fair trial.
There are many examples of fabricated and false rape accusations to extort money or seek revenge. In such cases, without a defence lawyer, an innocent person may be penalised.
Articles 27 and 31 of the Constitution of Bangladesh ensure equality before the law and the right to protection of the law respectively. Article 33(1) guarantees the rights to be informed of the grounds of detention and consult a lawyer concerning arrest and detention.
In India, in the State of Madhya Pradesh vs Shobharam judgement, the court held that any legal provision which is inconsistent with Article 33(1) will be void.
The right of being represented by a lawyer has been further reiterated in Moslemuddin Sikdar vs. Chief Secretary case. Since this is a fundamental right, it is judicially enforceable.
It asserts that the right to access justice cannot be said to have been dealt with unless the accused gets an equal opportunity in vindication of his right or grievance.
A fugitive has the right to be defended even when a death penalty is involved. The killers of our Father of the Nation Bangabandhu Sheikh Mujibur Rahman had defence lawyers.
In Nurun Nahar Zaman vs State, the court found the abrupt change of lawyer to be hasty and motivated. Section 340 of the Code of Criminal Procedure, 1898, states that every accused in a criminal case has the right to be defended by a pleader.
This has been also perceived in the State vs Hanif Gani case. The objective behind these legal provisions is not to provide refuge to heinous criminals but rather to ensure proper justice.
Being a descendant of common law, Bangladesh follows the adversarial justice system where both parties submit before an open court and are equipped with adequate evidence. When one party submits evidences to support their assertions, those are challenged by the other party.
Both parties must be given a chance to lay down their case, present and refute the evidence, argue, reason, and justify in front of legitimate authority.
Based on the evidence presented by both parties, the judge gives a verdict. Hence to ensure justice and rule of law, a defence lawyer is essential.
A verdict delivered without hearing the other party will be arbitrary and unfair. The fundamental principles of natural justice are considered the inherent pillars of any litigation, proceedings, investigation etc.
One of the principles of natural justice "Audi alteram partem" signifies that no person can be condemned unheard. The accused must always have an opportunity to present his case, including the right to a counsel.
In Abdul Latif Mirza vs Government of Bangladesh, the Appellate Division of the Supreme Court held that "the principle of Natural Justice is a part of the law of the country."
The Indian Supreme Court held in Hari Bishnu Kamath vs Ahmed Ishaque that the breach of "Audi alteram partem" renders a decision illegal in the exercise of undoubted jurisdiction.
Denying an accused his right to a counsel will be throwing the sacrosanct principle of natural justice in the fire.
The right to protection for criminal defendants has been mentioned in Article 14(2) of the International Covenant on Civil and Political Rights, 1969.
This article rests on the legal principle called "presumption of innocence." This old principle comes from the Latin maxim "ei incumbit probatio qui dicit, non qui negat", which means that the burden of the proof lies upon him who affirms, not him who denies the allegation.
This principle has further been discussed in Article 11(1) of the Universal Declaration of Human Rights which states that a person is innocent until proven guilty.
The provisions of international law regarding the right of an accused to be represented by lawyers resonate with the Constitutional and legal provisions of our country.
Like the two sides of a coin, false rape cases also exist, impeding the justice and legal redress for actual rape victims.
To unravel the truth, punish the right person and save the innocents for the sake of justice, the fair trial needs to be ensured.
Public sentiments should never overshadow the legal provisions or cloud a lawyer's judgment to represent a client.
It should rather work as a force to ensure speedy justice and fair trial.
Suriya Tarannum Susan, is LLB Second Year student of the University of Chittagong and Sajid Faisal, is LLB Second Year student of the University of Dhaka.
