Azra Kanjud Orin: Imagine yourself sitting in a courtroom,being heard as a witness where evidences are looked after by the Judge and the prosecution has already been made but the accused is absent. This is nomorea mere hypothetical courtroom landscape for Bangladesh especially after some verdicts pronounced by The International Crimes Tribunal(Bangladesh).
In the language of criminal justice system such courtroom affair is named as ‘Trial in Absentia’-justice in absence of the accused. This procedure is granted as an absolute lawful behavior for Bangladesh in an exceptional situation.
This principal was first adopted by the former Yugoslavia for International Tribunal. Back then it was rejected by all other International Tribunals. All the controversies came to an end after the International Crimes Tribunal Act,1973 affixed that provision. Since affixation widespread criticism has been risen up. Foremost this principal directly goes against natural justice for violating the principal ‘Audi Alteram Partem’- both parties should be heard properly. As here the accused is not given the chance to defend himself, his judicial right gets infringed.
The case of Chief Prosecutor v. Maulana Abdul Kalam Azad specifically referred Article 22 of the Statute of the Special Tribunal for Lebanon affirms that trial in absence in an absolute exception and in only applicable where the accused willfully waived his right of defence in writing. It is clarified in that case absent trial will not be continued even if the accused appoints a defence counsel by his own.
It is seen that the UK Supreme Court criticized extensively in the international arena for continuing the trial in absence of Chowdhury Mueen-Uddin. Later the Court of Appeal confirmed that mentioned occurrence can not be held as proper notice was not sent.
The ECtHR acknowledge aforesaid judicial method by providing guidelines. If the accused person consciencely abandon his legal right of defending after being properly served with notice nor select his legal presentative, the Court of Justice may choose trial in absence. The UNHRC give their consent where attempts are taken reasonably to make the accused known.
Courts of Bangladesh are permitted to head to such decision when there is a reason for believing that the absence is the result of absconding or willful concealment of accused to avoid the law. Hence, there is no immediate prospective to arrest him or bring him in the Court. This is exactly what is mentioned in section 339B of the Code of Criminal Procedure,1898.But dispute arise -as a signed country of International Covenant for Civil and Political Rights (ICCPR), all the legislative manner should be consistent with it. When this covenant does not allow justice without presence why the Code of Criminal Procedure?
Not only the Code of Criminal Procedure but alsosection 21 of the Nari-O-ShishuNirjatanDaman Ain,2000 the Nari-O-ShishuNirjatan Daman Tribunal is designated for exercising similar power. Besides this the Special Tribunals governed by the Special Powers Act,1974have analogous jurisdiction under 27. Proceedings of International Crimes Tribunal follow this method under section 10A(1) of International Crimes Tribunal Act,1973 for the term ‘may’ cited here.
However, after all of these debates, this rule still serves as an exceptional option in the criminal judicature of Bangladesh.
When it becomes an option for Bangladesh? In the general rule of criminal justice system, the accused needs to be stood up in the dock. He will surely get a chance to defend himself properly against the offence he is alleged for. But if seems that the accused is beyond the reach of law and can not be brought to the court of justice instantly-this will led to the violation of “Justice Delayed, JusticeDenied”.
Considering such misjustice our legislature permitsthat exception with some expressed rule mentioned in section 87 and 88 of the Code of Criminal Procedure,1898 along with section 7 and section 27(6)of the Special Powers Act,1974.These sectionssuggest proclamation in a conspicuous place of Courtroom or in the village or any other place he generally resides in and attachment of property of the accused person. And most importantly thenews ofproclamation should be publicized widely in at least one Bengali newspaper. Alike proclamation must declare specified time and place in it. If the alleged person does not answer the proclamation by attending himself or sending his legal defender to the courtit will be considered that thealleged person by his ownwaived the right of being defended.
From the British ruling to the 2026 governance all the legislature of Bangladesh including the Code of Criminal Procedure has adopted a number of amendments.Nonetheless, justice in absentia remains unalteredbeing an exception.
