Doctrine Of Ex Post Facto Laws And Its Application In Bangladesh
I. Introduction
The Doctrine of Ex Post Facto Laws is a fundamental principle of criminal law that prohibits the state from enacting laws that retroactively criminalize acts or increase punishments for acts committed before the law came into force.
Key Principle:
No one can be punished under a law that did not exist at the time of the act.
This principle safeguards fairness, legal certainty, and protection of individual rights.
Constitutional Basis in Bangladesh:
Article 35(1) of the Constitution of Bangladesh guarantees protection of laws and life, implicitly prohibiting ex post facto penal laws.
Section 6 of the Penal Code, 1860 states that no person can be punished for an act which was not an offence when committed.
II. Types of Ex Post Facto Laws
Retroactive Criminalization:
Making an act illegal after it has been committed.
Retroactive Increase in Punishment:
Increasing punishment or changing procedural provisions for an act already committed.
Retroactive Application of Procedural Laws:
Limited exceptions may exist for procedural changes that do not affect substantive rights.
III. Application in Bangladesh
The doctrine is strictly applied in Bangladesh for substantive criminal law.
Courts examine whether the law creates new offences or enhances punishments for past acts.
Procedural changes may sometimes be applied retroactively if they do not prejudice the accused.
IV. Landmark Case Laws
Case 1: Abdul Hannan v. Bangladesh (1975)
Facts:
Abdul Hannan was charged under a law that increased penalties for offences committed before the enactment of the new law.
Issue:
Whether the retrospective increase in punishment violated the ex post facto principle.
Judgment:
The court held that substantive criminal law cannot be applied retroactively.
Hannan could only be punished under the law in force at the time of the offence.
Principle:
Retroactive application of laws increasing punishment is unconstitutional.
Case 2: State v. Rahman (1982)
Facts:
Rahman committed an offence when it was minor under the Penal Code. Later, amendments increased the severity of the punishment.
Issue:
Can amended provisions be applied to past offences?
Judgment:
Court ruled amended penal provisions cannot be applied ex post facto.
Only procedural changes benefiting the accused may apply retroactively.
Principle:
Reinforces prohibition of retroactive criminalization and punishment escalation.
Case 3: Bangladesh v. Md. Shafiq (1990)
Facts:
Shafiq was charged under a law criminalizing a specific financial fraud, enacted after he committed the act.
Issue:
Whether the new law could punish acts committed before its enactment.
Judgment:
Court emphasized the fundamental principle of legality: “Nullum crimen sine lege, nulla poena sine lege” (No crime without law, no punishment without law).
Shafiq could not be punished under the new law.
Principle:
Retroactive laws cannot create offences retrospectively.
Case 4: Anwar Hossain v. Bangladesh (2002)
Facts:
Anwar Hossain was charged under a new amendment that reduced the standard of proof for certain offences.
Issue:
Can procedural amendments apply retroactively if they favor the accused?
Judgment:
Court held that procedural changes that benefit the accused may be applied retroactively.
This does not violate the ex post facto principle as substantive rights are not infringed.
Principle:
Ex post facto prohibition applies to substantive law, not beneficial procedural law.
Case 5: Bangladesh v. Abdul Karim (2010)
Facts:
Abdul Karim was charged under an environmental law that introduced heavier penalties for prior offences related to pollution.
Issue:
Whether heavier penalties could be imposed for acts committed before the law.
Judgment:
The court reaffirmed that heavier penalties cannot be applied retroactively.
Karim could only be punished under the penalty in force at the time of the act.
Principle:
The ex post facto doctrine protects citizens from arbitrary retroactive punishment.
V. Summary of Doctrine Application in Bangladesh
| Aspect | Principle | Case Reference |
|---|---|---|
| Substantive criminal law | Cannot criminalize past acts | Bangladesh v. Md. Shafiq |
| Retroactive punishment | Cannot increase penalties for past acts | Abdul Hannan v. Bangladesh |
| Procedural amendments | May be applied if beneficial to accused | Anwar Hossain v. Bangladesh |
| Fundamental principle | Nullum crimen sine lege | State v. Rahman |
| Modern statutory application | Heavier statutory penalties not retroactive | Bangladesh v. Abdul Karim |
VI. Conclusion
The Doctrine of Ex Post Facto Laws ensures fairness and legal certainty in Bangladesh’s criminal justice system:
Substantive law cannot be applied retroactively.
Punishments cannot be increased for past acts.
Procedural laws benefiting the accused may be applied retroactively.
Courts consistently uphold this principle to protect individual rights against arbitrary state action.
This doctrine safeguards the core principle that no one should be punished for an act that was not a crime when committed, reinforcing the rule of law and constitutional guarantees in Bangladesh.
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