Legal scholars should take up the issue of the due process of law
under the criminal justice system of a Republic so that future members
of the bar and the bench would have authority to rely on to oversee ajustice system which would be singled out for its independence and
impartiality How is Bail and presumption of innocence related to the
right to liberty in a Republic?
Under a Republic, the people are sovereign. This is why the right to
liberty is enshrined by the Republican constitution. To jealously
guard such liberty, Section 19 of the constitution states that a
person who is arrested based on reasonable suspicion must be brought
before a court without undue delay and , in any event , within 72
hours or be released unconditionally or on bail.
Why the speedy transfer of an accused person to the courts?
The answer is simple. Section 17 states that the enshrined
fundamental rights and freedom shall be respected and upheld by the
executive and the legislature and shall be enforceable by the courts.
The Courts are protectors of rights.
To protect the accused, section 24 calls for the independence and
impartiality of the courts and imposes on it the burden of affording
the concerned person a fair hearing within reasonable time.
Section 24 adds that everybody charged with a criminal
offence shall be presumed innocent until he or she is proved or has
pleaded guilty.
In fact, if the offence carries a death penalty or life imprisonment
the accused is entitled to legal aid.
All these safeguards are put in place and judges paid to ensure fair
hearing to give due regard to the fact that the liberty of the
sovereign person is at stake. It is under mob justice where the
accused is presumed guilty until he or she is proved innocent.
A judge cultured in Republican values would hold it as a golden rule
that bail should not be excessive or unreasonably denied. Those
schooled in the values of mob justice would pass judgment before
presiding over a hearing and see accused persons as convicts waiting
for sentence.
What is important to bear in mind is that criminal justice systems are
designed to control and manage criminal behaviour. Those who are
finally caught and tried are a small percentage of those who are
shielded by lack of information or capacity to manipulate the system
because of power or patronage. Granting bail is not freeing a person
from responsibility to stand trial. It is a means of demonstrating the
independence and impartiality of a tribunal and building confidence in
the accused person that one would be afforded fair hearing. Needless
to say, bail that goes with surety prevents an accused person from
absconding without cost. There could always be something to lose which
is equivalent to the crime alleged.
