What rights and remedies do you have under Article-35 (protection in respect of trial and punishment) ?
Do you know what fundamental rights and remedies under Article 35 (Protection in respect of trial and punishment) you have in the High Court Division? Do you know High Court is there for you to protect your rights to the protection in respect of trial and punishment? Do you know what you can do when any authority, court, tribunal, or government body violates these protections? What the recourse or redress can you to take when you have been subjected to any unfair criminal prosecution, illegal punishment, retrospective criminal liability, double jeopardy, and compelled self-incrimination? If not, let’s go to know your rights under article 35. A Writ Petition can be filed before the High Court Division any authority, court, tribunal, or government body violates the protection in respect of trial and punishment.
Article 35 of the Constitution of Bangladesh guarantees “Protection in respect of trial and punishment.” If any authority, court, tribunal, or government body violates these protections, an aggrieved person may file a Writ Petition under Article 102 before the High Court Division of the Supreme Court of Bangladesh.
Article 35 protects individuals from unfair criminal prosecution, illegal punishment, retrospective criminal liability, double jeopardy, and compelled self-incrimination. Below are the main issues, matters, and grounds for filing a writ petition under Article 35, with examples and judicial precedents.
INDEPENDENT, IMPARTIAL AND FAIR TRIAL OR DUE PROCESS:
The court emphasized that the Right to a Fair Trial is an absolute right. Even in cases of international crimes or high treason, the accused must be given a "reasonable opportunity" to defend themselves, as per the standards of Article 35.
A "Fair Trial" under Article 35 consists of several non-negotiable elements. If any are missing, the trial is considered "coram non-judice" (not before a judge) or unconstitutional. A trial cannot be fair if the judge has a conflict of interest or if the executive branch interferes with the judiciary.
Writ Ground: Challenging the composition of a Special Tribunal or seeking the transfer of a case if there is a reasonable apprehension of bias.
Writ Ground: A writ petition may be filed when trial is conducted without giving the accused opportunity to defend himself, evidence is accepted in violation of legal procedure, the court acts with bias or prejudice, and a tribunal convicts a person without allowing cross-examination of witnesses.
THE RIGHT TO BE HEARD (AUDI ALTERAM PARTEM):
No person should be condemned unheard. This includes the right to cross-examine witnesses and present a defense.
Writ Ground: If a court closes a defense's evidence prematurely or refuses to allow a material witness to testify without valid reason.
DUE PROCESS:
If a law allows the police to arrest someone without telling them why, that law itself is a violation of Due Process. This judgment established that the procedural fairness is a part of the Right to fair trial, and the state must provide "safeguards" to prevent the abuse of power.
DENIAL OF SPEEDY TRIAL (ARTICLE 35(3)):
Every accused person has the right to a speedy and public trial by an independent and impartial court or tribunal established by law.
Grounds for Writ: A writ may be filed if criminal proceedings are unreasonably delayed for years, authorities intentionally delay investigation or trial, trial is conducted by a biased or dependent tribunal, and Undue delay in trial violates the constitutional right to speedy justice.
For example: A criminal case remains pending for 15 years or for long period of time without progress, causing injustice to the accused.
RIGHT TO SPEEDY AND PUBLIC TRIAL [ARTICLE 35(3)]:
This right guarantees that every accused person receives a trial within a reasonable time, conducted openly by an independent and impartial court or tribunal established by law.
Grounds for Writ: Seeking directions from the High Court for the expeditious conclusion of a pending trial that has suffered inordinate and unjustified delay.
For example: An accused has been in jail for 8 years as an undertrial prisoner, and the recording of evidence has not yet commenced due to repeated adjournments sought by the state. A writ petition can be filed asking the High Court to intervene and direct the trial court to conclude the proceedings within a fixed timeframe, or to grant bail due to the protracted delay violating the right to a speedy trial.
Judicial Precedent: The Supreme Court of Bangladesh has acknowledged that an unreasonable delay in trial is a violation of fundamental rights. In various PIL cases, the courts have issued guidelines to the lower judiciary to prioritize old cases and ensure trials are not delayed unnecessarily, noting that "justice delayed is justice denied."
TRIAL BY A COURT OR TRIBUNAL NOT ESTABLISHED BY LAW (ARTICLE 35(3)):
Constitutional Principle: Trial must be conducted only by a court or tribunal established by law and that is independent and impartial.
Grounds for Writ: A writ may be filed where a tribunal lacks legal jurisdiction, a body that is not legally constituted conducts criminal trials, and executive authorities interfere with judicial independence.
For example: If a special tribunal created by executive order tries criminal cases without statutory authority. The Constitution ensures independence of the judiciary, which is essential for fair trial.
TRIAL BY A TRIBUNAL WITHOUT LEGAL JURISDICTION:
A writ petition can be filed if a person is tried by a tribunal or authority that has no legal jurisdiction, and if the tribunal violates constitutional or procedural safeguards. Judicial process must comply with constitutional safeguards and due process.
PROTECTION AGAINST DOUBLE JEOPARDY (ARTICLE 35.2):
Constitutional Principle: Article 35(2) states: "No person shall be prosecuted and punished for the same offence more than once."
Conditions of double jeopardy:
1) Previous Prosecution: The person must have been previously prosecuted before a court of law.
2) Punishment: The person must have been punished (or finally acquitted, though the wording of 35(2) emphasizes "prosecuted and punished").
3) Same Offense: The second proceeding must be for the exact same offense under the same set of facts.
Grounds for Writ: A writ petition can be filed when authorities file multiple prosecutions based on the same offence, and a person already convicted or acquitted is prosecuted again for the same facts. A Writ of Certiorari or Mandamus can be filed to challenge subsequent criminal proceedings (investigation, trial, or punishment) initiated for an offense for which the accused has already been tried and either convicted or acquitted by a competent court.
For example: A person is acquitted in a criminal case of fraud, but the authorities file another case with identical facts and allegations. A person is prosecuted and punished for "causing hurt" under the Penal Code. Later, the prosecution tries to prosecute him for "attempt to murder" based on the same incident and same evidence.
Judicial precedent: in the case of Abdul Hakim, the Court held that a second prosecution for the same offence is unconstitutional.
Legal Standing: If the first "prosecution" was a nullity, the accused was never technically "in jeopardy." A second trial in a competent court would be legal. The protection of Article 35(2) is available only when the accused has been both prosecuted and punished. If the first trial ended in a discharge (not a final acquittal or conviction), a second trial might still be initiated.
CONVICTION OR PUNISHMENT UNDER A RETROSPECTIVE (EX POST FACTO) LAW:
This clause prohibits the retrospective application of criminal laws. A person cannot be convicted for an act that was not an offense at the time of its commission, nor subjected to a greater penalty than what was applicable then. A writ may be filed when a criminal law is applied retrospectively, and a person is punished with a heavier penalty than existed at the time the offense occurred.
Constitutional protection: Article 35(1) provides that no person shall be convicted of any offence except for violation of a law in force at the time of the act, and no penalty greater than the one prescribed at the time of the offence may be imposed.
Grounds for Writ: Challenging the validity of a newly enacted or amended criminal law that makes past actions punishable, or challenging a sentence that is harsher than what the law prescribed when the crime was committed. A writ may be filed when a person is punished under a law enacted after the alleged act, and the law is applied retrospectively to impose criminal liability.
For example: A law enacted in 2026 criminalizes a particular act, but a person is prosecuted for doing that act in 2023.
For example: A person commits an act in 2023 when the punishment is 5 years imprisonment. In 2024, the law is amended to increase the punishment to 10 years for the same act. If the person is sentenced to 10 years in 2025 based on the new law, a writ can be filed under Article 35(1) to quash the sentence beyond 5 years.
Judicial precedent: in the case of Kazi M Rahman, the High Court held that criminal liability cannot be imposed retrospectively, punishment cannot be imposed by the said retrospective law, and retrospective punishment violates Article 35(1).
Judicial Precedent: In the case of BLAST, the High Court Division dealt with the issue of retrospective application of a new law regarding death penalty. The court held that applying a stricter punishment enacted after the date of commission of the offense violates Article 35(1).
PUNISHMENT WITHOUT DUE PROCESS OF LAW:
Although Article 35 primarily deals with criminal procedure, punishment must also follow proper legal process.
Grounds for Writ: A writ petition may be filed if a person is punished without lawful trial, and authorities impose penalties without jurisdiction.
For example: An administrative authority punishes someone without any legal procedure or court order.
Conclusion:
A Writ Petition can be filed where any conviction is awarded in violation of a law in force at the time of the commission of the act charged as an offence, any is penalty greater than or different from, criminal law is applied retrospectively, a person faces double jeopardy, speedy trial is denied, trial is conducted by a tribunal not established by law, authorities use torture or degrading punishment, and a punishment is imposed without lawful trial or jurisdiction. Protection in respect of trial and punishment can be ensured when no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. Protection in respect of trial and punishment can be ensured when no person shall be prosecuted and punished for the same offence more than once. Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial Court or tribunal established by law. Protection in respect of trial and punishment can be ensured when no person accused of any offence shall be compelled to be a witness against himself. Protection in respect of trial and punishment can be ensured when no person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist
+8801971993639
lawyer.kamruzzaman@gmail.com