Due Process: A celebrated yet forgotten concept in Bangladesh

In his famous speech, American President John F. Kennedy had signalled for us to not dwell on what our country can do for us but rather question what we can do for it. This notion, while patriotic, is counterintuitive at best and careless at worst. As citizens of a country that denounces several rights to the state we live in, we should very well be asking and inquiring what, in fact, our country can do for us.

A country or state is primarily administered by its constitution; a supreme source of the law that stands as the apex decision maker on fundamental policies. When we go back to the question of what our country can do for us, the most important answer is "protection", which comes mostly via the constitution, and it comes in threefold: (i) Internal protection of citizens against citizens with the help of its law enforcement agencies, (ii) External protection against other states monitored through national defences, and (iii) Protection from the state itself which comes in various forms, such as human rights and applications for judicial review (writ petitions, as referred to in Bangladesh). This essay will focus on due process (or lack thereof) from the Bangladeshi viewpoint. 

First found on the 39th article of the Magna Carta 1215, where it stated, "No freeman shall be taken or (and) imprisoned or diseased or exiled or in any way destroyed... except by the legal judgement of his peers or (and) by the law of the land", the right to due process is one of many such individual rights that are recognised unanimously by modern society as absolute. It is a legal requirement that all proceedings be followed and obtained fairly and in coherence before an individual's private rights are compromised by the state. 

These legal proceedings are abided according to the principles and rules of the state in question and are uniform in every country. For instance, while the Fifth and Fourteenth Amendment of the American Constitution considers due process as both procedural and substantive, we know from Mujibur Rahman v Bangladesh that the Bangladeshi idea of due process leans more towards sole procedural fairness. This goes hand-in-hand with "content-free" methodology of the doctrine of "rule of law" where the focus is on the form and procedures rather than the quality of the laws. 

Formalists (e.g., Joseph Raz) interpret due process as merely a navigational virtue of a legal system, rejecting any merger with other independent factors of governance like democracy and social justice.

Gopalan v State of Madras (Indian case) draws light to the subcontinental viewpoint on the matter— "due process of law" was held to be the safeguard for protection of private rights against the exercise of governmental authority through settled maxims of permissible sanctions and laws. 

Article 31 of Part II of the Constitution of Bangladesh states: "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".

However, reality is far from it. For example, judicial review by the High Court, a clear form of due process under the Fifth Amendment (which Article 31 is an analogue of), was purposely eliminated by the 5th clause of Article 102, essentially depowering the judiciary, and in turn all the citizens that rely upon it to uphold and restore due process.   

Representational image. Picture: Collected

Likewise, Article 32 reads: "No person shall be deprived of life or personal liberty save in accordance with law". This, once again, indicated that our founding fathers did intend the new nation to uphold the prominent notion of due process and pay its respects to the rule of law. However, they have often contradicted themselves later down the years. A concerning example is The Special Powers Act 1974 which the then government equated to be capable of denouncing "the fundamental principles of state policy," as stated in part II of the constitution.

In Abdul Latif Mirza v Government of Bangladesh, the Supreme Court held that "satisfaction of the detaining authority," as per Section 3 of the Act was not strong enough to oppose Article 102(2)(b)(i) of the constitution. This was very similar to the British case of Entick v Carrington where the court reiterated that executive authority does not supersede an individual's rights. 

Abdul Latif Mirza was a direct result of the application of Justice Hamdoor Rahman's definition of due process—one which required all laws made by the legislatures to be reasonable, to not be arbitrary or adverse, and demanded an opportunity to be heard. One can find the essence of Justice Hamdoor Rahman's definition in both the first and second principles of "Rule of Law" by the celebrated British constitutional scholar, A. V. Dicey.

Abdul Latif Mirza wasn't the first case on this matter as it took persuasive authority from Aruna Sen v Government of Bangladesh, where the High Court sided with dissenting principles of Lord Atkin in Liversidge v Anderson and stated that the law of the land adopted UK's notion of considering all imprisonment without trial and conviction as prima facie unlawful. 

Due process isn't only a pre-protection montage, but also works as a "morning after" pill. This it does through Article 33, Part III, and it does so in 3 parts: (i) Detainee has to be informed of the grounds of their arrest as soon as possible (or as the constitution puts it, "as soon as may be") (ii) Right to seek and consult the aid of a legal practitioner, and (iii) The requirement of a clear guideline for the detainee to be presented before a magistrate within 24 hours of the arrest. 

But all of this leaves us thinking how statutes like The Special Powers Act could even be made. The answer is not a happy one. Article 26 (2) voided any law that proved to be inconsistent with Part III of the constitution; sadly, all its glory lasted a mere nine months as the Second Amendment Bill came in and quashed its ability to protect fundamental rights. 

Things said and not done is not a unique Bangladeshi trait. Due process has been breached before by far more matured democracies. For example, the UK has done so when they passed the British Bill of Rights as its Article 9 grants absolute immunity to Members of Parliament from actions in tort of defamation arising from things said in parliamentary hearings. But if the 2016 Appellate Division's ruling on the BLAST and others v Bangladesh and others is any signal, then it's a positive foreshadowing of better days to come for due process in Bangladesh, and one that the father of nation would perhaps be proud of. It is on this case that the Bangladesh Legal Aid and Services Trust (BLAST) was able to persuade the AD to put a halt on the routine abuse of statutory powers provided under Sections 54 and 167 of the Code of Criminal Procedure by law-enforcement agencies as they not only violated due process of law, but also a citizen's right to life, liberty, and all other constitutional promises guaranteed by Articles 27, 31, 32, 33, and 35. 

In conclusion, it would not be the slightest bit hyperbolic to call due process an expectation of ideals the protectors of society must abide by, and an optimised tool to empower the citizens against the state amidst the vertical relationship between the two. This is why the slightest divergence from the principle of due process should not be expected or accepted from a democracy, no matter how old or young it might be.

Abtahee Al Wasee is 2nd year LLB Student under the University of London's distance learning program at London College of Legal Studies (South). 

Disclaimer: The explanations given and views expressed in this article are the author's own and TBS does not necessarily endorse nor support those.