The Legality of Local Bar Resolutions Refusing Representation to Accused Persons in Bangladesh: Constitutional Rights, Professional Ethics and Comparative Perspectives
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Executive Summery This article examines whether local Bar Associations in Bangladesh can collectively restrict advocates from defending persons accused of particular offences, and the implications for the right to legal representation and fair trial. It is of public interest because it helps ordinary citizens, accused persons, lawyers and courts understand the limits of Bar Association resolutions and safeguards against the denial of legal representation, while recognizing the legitimate public objective of combating crime within the framework of the rule of law. |
We often see a local Bar Association passes a resolution urging its members to refrain from defending or representing a particular class of accused individuals. A fundamental question about the link between an accused person's right to legal representation and the collective autonomy of the legal profession is raised by such resolutions. This article contends that while an individual advocate may, under certain conditions, decline a brief, a local Bar Association's general resolution prohibiting or pressuring advocates not to defend or represent a particular class of accused individuals lacks a clear legal basis and is difficult to reconcile with the Constitution of the People’s Republic of Bangladesh, the Code of Criminal Procedure 1898 (“CrPC”), and the professional ethicsrules of the Bangladesh Bar Council.
Before we go into the details of the above-mentioned debate, we need to understand how the criminal justice system primarily works. The idea of 'presumption of innocence' suggests that every accused is presumed innocent until proven guilty. This is why an individual charged with a crime is called an ‘accused’ and after conviction, he becomes a ‘criminal’.The prosecution must prove the charge ‘beyond reasonable doubt’, meaning if the judge has any doubt and isn’t completely convinced of the crime being committed, the accused shall be acquitted. An accused is released when the prosecutor fails to prove or disprove any important fact(s) of the case, whereas the defence lawyer only adduces evidence and raises defence for his client that must be disproved by the prosecutor to the same standard. Thus an advocate’s only job is to represent the clients in the court room.
According to Article 31 of the Constitution, every citizen has a right to the protection of the law. Article 33(1) further says that a person who has been detained cannot be refused "the right to consult and be defended by a legal practitioner of his choice". So the suspect must have a fair opportunity to defend him.
The constitutional position is reinforced by section 340(1) of the CrPC, which provides that“any person accused of an offence before a Criminal Court ... may of right be defended by a pleader.” Chapter II of the Legal Remembrancer's Manual 1960 further provides that “every person charged with committing an offence punishable with death shall have legal assistance at his trial”. Therefore the right to be represented by an advocate is a statutory right which cannot be compromised at any cost, otherwise innocent persons might be denied proper defence. Even a confessional statement by the accused can no way deprive him from getting legal representation.
This right has been regarded by the higher courts as substantive rather than merely ceremonial. The High Court Division in State and others vs. Syed A. Salam and others, 5 SCOB [2015] HCD 49, ordered a new trial after ruling that failing to provide the accused charged with a capital punishment with a suitable defense violated section 340 and the Legal Remembrancer's Manual 1960. Therefore we should ensure that the pursuit of justice does not validate or excuse the violation of other legal rules.
The Canons of Professional Conduct and Etiquette by the Bangladesh Bar Council are quite explicit in this case. According to the Canons, an advocate has the right to represent someone who has been charged with a crime, regardless of the advocate's personal beliefs on the accused's guilt. Moreover, Bangladesh is a signatory to the International Covenant on Civil and Political Rights (‘ICCPR’). Article 14(3)(d) ensures that an accused has the right to ‘defend himself in person or through legal assistance of his own choosing’.
In India, the Supreme Court has repeatedly held that Bar
resolutions cannot be followed by advocates in order to impede the legal
system. The Indian Supreme Court considered a resolution by the Bar Association
refusing to defend individual accused police officers in A S Mohammed Rafi v. State of Tamil Nadu, (2011) 1 SCC 688. The
Court considered this decision to be a violation of professional ethics and
concluded that the accused's right to counsel could not be compromised by the
collective decision of the Bar.
The above laws make it clear that the normative and professional foundation of a general Bar resolution against representing particular class of accused is significantly undermined. The advocate's legal defense of the accused does not imply endorsement of the alleged behavior.
Even as statistically, such a collective resolution can have a severe prejudicial impact on the accused who are actually innocent. A report published in The Daily Star on 26 June 2025 stated that, according to DNC’s latest annual report, among the drug-related cases disposed of between 2020 and 2025, the accused were acquitted in 7,539 cases, representing 56.36 percent of the total. Another study, conducted jointly by the Supreme Court of Bangladesh and BRAC, revealed that the acquittal rate in cases of violence against women and children is 70%.The findings show that a criminal charge does not automatically guarantee conviction in all cases unless the allegations are lawfully proved.It is also undeniable that a significant number of cases turns out to be fakes and are filed particularly to harass the accused individual. In light of the statistics, such resolution of the local Bar could prove to be a seriously misguided and potentially self-defeating measure.
There is no doubt that the local Bar’s underlying intention may be commendable to create a notable precedent for the future offenders, but the means adopted to achieve that objective remain legally questionable. A genuine commitment to combating crime must not come at the expense of the accused’s fundamental right to a fair trial, as an emotional decision cannot override established principles of due process and justice.
In conclusion, it seems that a local Bar Association lacks
the legal power to enforce a complete ban restricting its advocates from
defending a specific group of accused individuals. A collective decision that
hinders legal representation is based on significantly
less robust legal grounds. In this regard, the Bangladesh Bar Council should
establish explicit regulations that control collective boycotts or coercive
actions against advocates representing accused individuals. It should also
create a ‘Complaint and Enforcement System’ that allows an advocate or accused
individual to challenge such decision before the Bar Council.
Written By:
Hasibul Hasan
Barrister-at-Law, Lincoln’s Inn
Advocate, Supreme Court of Bangladesh
Mobile: 01521261105
