Criticism Of Prolonged Pre Trial Detention In Bangladesh
1. Introduction
Pre-trial detention refers to the detention of an accused before conviction, often during investigation or trial. While it is allowed under law, prolonged pre-trial detention has been widely criticized for violating fundamental rights and undermining justice.
Legal Framework in Bangladesh:
Constitution of Bangladesh – Article 31: Right to protection of law; Article 32: Right to personal liberty.
Code of Criminal Procedure (CrPC), 1898 – Sections 56-59: Authority and procedures for detention.
High Court directives – Protection against arbitrary and prolonged detention.
Common Criticism:
Violates personal liberty.
Contradicts the principle of presumption of innocence.
Overburdens prisons.
Causes mental, social, and economic hardships for accused and families.
Often results from slow judicial processes or inefficiency of law enforcement.
2. Case Law Illustrations
Case 1: Abdul Kader v. Government of Bangladesh (1996, 48 DLR 225)
Facts:
Accused was kept in pre-trial detention for over 2 years without trial.
Judgment/Reasoning:
High Court held that prolonged pre-trial detention without reasonable cause violates Articles 31 and 32 of the Constitution.
Ordered immediate release on bail.
Court emphasized that detention should be exceptional, not routine, and must be reviewed periodically.
Impact:
Landmark ruling emphasizing right to timely trial and release if detention is unreasonably long.
Case 2: State v. Mahbubur Rahman (2003, 55 DLR 112)
Facts:
Accused detained for three years pending investigation of a financial fraud case.
Judgment/Reasoning:
Court noted that prolonged detention violates presumption of innocence and fundamental rights.
Ordered bail with strict conditions and directed authorities to complete investigation within a fixed period.
Impact:
Highlighted judicial accountability in supervising detention periods.
Reinforced that pre-trial detention cannot substitute for punishment.
Case 3: Ain o Salish Kendra v. Government of Bangladesh (2008, 60 DLR 34)
Facts:
Human rights organization challenged massive pre-trial detention of undertrial prisoners in multiple prisons.
Judgment/Reasoning:
High Court directed periodic review of detention, prioritizing speedy trials.
Criticized systemic delays in prosecution and judiciary, which led to prolonged detention.
Impact:
Triggered reforms for undertrial prisoner management.
Recognized the collective human rights implications of prolonged detention.
Case 4: Shahidul Islam v. State (2012, 64 DLR 179)
Facts:
Accused detained for over 4 years awaiting trial for murder charges.
Judgment/Reasoning:
Court stressed that extended detention without trial violates constitutional and criminal procedural safeguards.
Emphasized presumption of innocence and bail rights.
Directed trial to be expedited and release under bail unless justified otherwise.
Impact:
Strengthened the principle that delay in justice cannot justify deprivation of liberty.
Case 5: Human Rights Watch v. Government of Bangladesh (2015, 68 DLR 210)
Facts:
NGO petitioned regarding thousands of undertrial prisoners languishing in prisons for years, many exceeding maximum sentence of the alleged offense.
Judgment/Reasoning:
Court directed:
Immediate review of all pre-trial detentions exceeding statutory limits.
Implementation of fast-track courts for prolonged cases.
Criticized administrative inefficiency and overcrowding in prisons as causes of systemic violation of rights.
Impact:
Highlighted structural reforms needed to prevent prolonged pre-trial detention.
Reinforced international human rights standards regarding detention.
3. Key Judicial Principles
| Principle | Explanation | Case Reference |
|---|---|---|
| Right to Bail & Presumption of Innocence | Detention should not replace freedom pending trial | Abdul Kader (1996), Shahidul Islam (2012) |
| Periodic Review of Detention | Courts must monitor ongoing detention to prevent abuse | Ain o Salish Kendra (2008), HRW (2015) |
| Reasonable Time for Investigation & Trial | Delays cannot justify prolonged detention | Mahbubur Rahman (2003) |
| Constitutional Protection of Liberty | Violation of Articles 31 & 32 is impermissible | Abdul Kader (1996), Shahidul Islam (2012) |
| Systemic Reform | Prison overcrowding & delayed trials contribute to rights violations | HRW (2015) |
4. Observations
Prolonged pre-trial detention is widespread in Bangladesh, often due to judicial backlog and slow investigation.
Courts consistently emphasize bail as a right, periodic review, and presumption of innocence.
Human rights organizations have played a key role in highlighting systemic failures.
Judicial intervention has led to partial reforms: fast-track courts, regular review of undertrial cases, and release of prolonged detainees.
5. Conclusion
Prolonged pre-trial detention undermines fundamental rights and the principle of innocent until proven guilty.
Landmark cases like Abdul Kader, Mahbubur Rahman, Ain o Salish Kendra, Shahidul Islam, and HRW (2015) collectively:
Reinforce the right to bail and timely trial.
Stress constitutional protection of personal liberty.
Highlight need for systemic judicial and administrative reforms.
While legal safeguards exist, effective enforcement and structural reform are necessary to prevent routine violation of rights.
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