The right to an expeditious trial is recognised as a common law right, which has references to the 12th Century owing to presence in Magna Carta, is incorporated in the laws of various countries such as the United States, United Kingdom, Australia, India, Canada, New Zealand etc. This right has also been assured under several international instruments and human rights treaties. The International Convention for Civil and Political Rights under its Article 14 establishes rights to a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses. The European Convention on Human Rights under Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). Research shows that in recent time, the majority of Convention violations are related to excessive delays, in violation of the “reasonable time” requirement, in civil and criminal proceedings before national courts.
The Constitution of the People’s Republic of Bangladesh (Constitution) also recognises the right to speedy trial of a citizen. Article 35 (3) of the Constitution provides that -
Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial Court law.
Enforcement of this right is very essential as breach of the right to speedy trial also leads to infringement of several other rights, for example; right to enjoy the protection of law, right to life and liberty etc.
Article 31 of the Constitution provides that – “To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law”.
Right to speedy trial is a right ensured under the supreme law of the country and if such a right of a citizen has been breached, it is undeniable that s/he could not enjoy the protection of law and was not treated in accordance with law. Moreover, failure to ensure a speedy trial is absolutely detrimental to the life, liberty, body, reputation or property of that particular person whose right to speedy trial has been breached.
Therefore, there is no qualm that breach of the right of speedy trial leads to breach of the right of protection of law, which is provided under Article 31 of the Constitution.
Article 32 of the Constitution provides that –
No person shall be deprived of life or personal liberty save in accordance with law.
At this point it requires no further discussion to establish that breach of the right to speedy trial also paves the way for infringement of right to life and personal liberty.
The reality is that delay in disposal of trials is unescapable as there is huge backlog of cases prevailing in our country. As a result people now a days have forgotten to attain justice in a fairly reasonable timeframe. However, this cannot justify the losses caused to victim whose right to speedy trial has been breached.
Hence, our Constitution speaks for enforcement of fundamental rights under Article 44 of the Constitution. Article 44(1) of the Constitution, which itself is a fundamental right of a citizen, provides the right to a citizen to move the High Court Division (HCD) of the Supreme Court of Bangladesh in accordance with Article 102(1), for the enforcement of the rights conferred by Part III of the Constitution. Article 102 of the Constitution empowers the HCD to give directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate, for the enforcement of any of the fundamental rights conferred by Part III of this Constitution, if satisfied that no other equally efficacious remedy is provided by law. Therefore, the Constitution itself allows a floor towards the citizens to go to the HCD for the enforcement of the rights conferred by Part III of the Constitution whose right to speedy trial has been breached.
There is a saying that “Justice delayed is justice denied“ which implies that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all. Therefore, failure to ensure a speedy trial means failure to ensure justice.
We hope that our government and the judiciary will take up this matter with greater sincerity and come up with better safety measures in order to ensure that not a single citizen is deprived of the right to speedy trial.
The writer is an Advocate, Supreme Court of Bangladesh