Judicial Development in Bangladesh
Mr. Chairman of the Session,
Distinguished Delegates, Ladies & Gentlemen
It is a matter of great pleasure for me to be amidst this seminar and session of legal
professionals, academicians and Judges. My roots and, therefore, my heart lie in the legal
profession. On this occasion, I take the privilege to give you a comprehensive picture about
Judicial Development in Bangladesh.
The judiciary of Bangladesh has been facing lot of hurdles to achieve its
independence, to maintain the rule of law and to ensure its Supremacy. It has crossed the
'Delinquency period' of four Martial Laws and other related rules. The glimpses of the
judicial development in Bangladesh are depicted as under.
Colonial Period
Sources of English Legal History
Anglo-Saxon Law
There are three groups which fall under this system
(I) The Dooms-They were largely written in Anglo-Saxon, Probably of the
Norman period those are Code of Alfred who declared that he has not made
many new laws of his own, but chosen those of his predecessors that seemed
to him wisest-these dooms seem largely concerned with public law and give us
minute tariffs of oaths regulating the methods of proof and the administration
of justice.
(II) the Diplomata-Law book with a fex Saxon "wills".
(III) the Ecclesiastical Documents-The Church and state were divided and the
cleric was from his learning and clerkly ability naturally the lawyer, and, so
far as such existed, the historians of the time. From these monasteries have
come documents which must be carefully weighed if the history of Anglo
Saxon law is to be written-they saw the nature of property owned and the
manner of life in those days.
(IV)
Common Law
Principal Source are at present time statute and case laws-the most important are
certain official records, such as the plea Rolls, and Professional literature, which includes text
books and collection of precedents either of pleadings of non-litigious instruments.
The Common Law Courts
Courts of Assize
The system of sending out justices from the kings council may have been instituted
even before the conquest, and William-I exercised this prerogative right as least 1072-They
sent out as occasion demanded and their duties were administrative rather than judicial-Henry
2
11 reorganized the system and divided England into circuits, which were regularly ridden for
the purpose.
Commission of Assize
Henry 11 appointed the justices to take the assizes, and also introduced the earliest
forms of commission Ad Omnia Placita.
Hierarch-A ruler in holy thing-a chief priest.
Hierarcy-The collective body of angels.
Mayor's Courts-They derived their power direct from the crown, were established in
the presidency towns of Calcutta, Madras and Bombay in 1728 under charter of September
24, 1726 by king Gorge-I to the United Company of merchants of England trading to the East
Indies. Their jurisdiction was confined to the Presidency towns or English factories
Subordinate to them from the administration of justice among the English men. Those natives
who submitted to their jurisdiction the law administered by them was English Common law
together with statutory law then in force in England.
Supreme Court
The charter establishing in Supreme Court of Judicature at Fort William was issued
on 26th March, 1774 in pursuance of Regulating Act 1773. The Mayor's court transferred all
proceedings before it for the more speedy and effectual administration of justice in Civil
cases, and for criminal offences-it was a court of record.
The Sadar Diwani Adalat and Nizamat Adalat
The battle of plassy gave the deathblow to Moslem rule-the overlodship of Bengal,
Bihar, Orissa was taken over by the English. The grant of Diwani to the East India Company
in 1765 was a cession to the East India Company of the military Government of the
provinces, of the right of administration of civil justice, and of the complete control of the
finances and to providing for the expenses of administering criminal justice, and the
maintenance of police. The Nizammat, or administrator of criminal justice and police was at
the same time, conferred upon the Nawab Nazm-ud-Daula.
Calcutta High Court
The Mutiny in 1857 necessitated rethinking on the administration of India and
reorganization of the law Courts. The Supreme Court of Calcutta and the Sadar Courts ceased
to exist on 30th June, 1862. Indian High Court Act, 1861 was passed and the charter of the
Calcutta High Court was issued on 14th May 1862.
The consolidation of Supreme Court and the Sadar Court into one was made for the
purpose of securing better administration of justice-the Supreme Court being represented by
what is called the original side, and the Sadar Court by its Appellate side.
Codification of laws and Reforms
a) In 1861 the third Law commission was appointed. The Commission submitted the
following draft laws.
(i) Law of succession applicable to all except Hindus and Muslims.
(ii) Contract Act.
(iii) Law of Negotiable Instruments.
3
(iv) Law of Evidence.
(v) Transfer of Property Act.
(vi) Code of Criminal Procedure.
b) In 1879 the Fourth Law Commission was appointed and this commission
recommended the amendment of some laws and enactment of some new laws. The
following substantive laws were enacted after amendment.
(i) The Contract Act, 1872.
(ii) The Transfer of Property Act, 1882.
(iii) Negotiable Instrument, Act, 1881.
(iv) Evidence Act, 1872.
(v) Code of Criminal Procedure, 1898.
(vi) Code of Civil Procedure, 1908.
(vii) Limitation Act, 1908.
(viii) The Civil Court Act, 1887 was enacted after repealing Act, 1871.
(ix)
Sub-Divisional Courts
(i) During the British rule, each district was divided into several sub-divisions. In
the Sub-Divisional head quarters Courts of Munsifs deciding Civil Suits up to
valuation of Tk.1000.00. Junior Munsifs had jurisdiction up to Rs.500.00 such
Munsifs were also vested with Magisterial Powers.
(ii) There were Magistrates in the sub-division head quarters.
(iii) Magistrates were divided into three Classes- (a) Magistrates of the 1st Class,
(b) Magistrates of the 2nd Class, (c) Magistrated of the 3rd Class.
A Sub-Divisional Magistrate with power of supervision over other Magistrates
Subordinate to him was appointed.
District Courts
In the District head quarters for disposal of Civil matters the following Judges were
appointed.
(i) District Judges.
(ii) Additional Judges.
(iii) Subordinate Judges.
a) They were performing appellate jurisdiction except the subordinate judge who had
jurisdiction and decided Civil Suits of any valuation.
b) Additional Judges had mainly appellate jurisdiction and limited original jurisdiction.
When the valuation of the suits was up to Rs.5000/- the District Judge who could
hear the same or transfer the same to the Additional Judge
c) Appeals from the decisions of the Munsifs were transferred to Subordinate Judges
by the District Judge.
d) Judicial functions in the Districts of Chittagong Hill Districts were exercised by the
Deputy Commissioner and his subordinate officers of Magistrates.
e) Divisional Commissioner functioned as the Sessions Judge under the Chittagong
Hill Tracts Regulation 1900.
4
f) District Judges, Additional District Judges and Subordinate Judges were empowered
to try Criminal cases committed to them as Sessions Judges, Additional Sessions
Judges, and Assistant Sessions Judges.
g) Judges of the Courts of Session tried cases with the help of the Assessors. Jury-
Verdict of the jury was binding on the courts of Sessions but that of the Assessors
was not.
h) District Magistrates, Joint Magistrates and Additional Magistrates, if empowered,
could try cases punishable with imprisonment up to 7 years. They could hear appeals
from the sentences passed by Magistrates of the 3rd Class.
Federal Court
Under the Provisions of the Government of India Act, 1935 a Federal Court was
established in India in 1937 having power to hear appeals from the decisions of the High
Courts. But the said appellate power was limited to the interpretation of laws vis-a-vis the
Government of India Act and did not affect the jurisdiction of the Privy Council to hear
appeals from the decisions of the High Courts on merit.
Privy Council
In England, the King in Council was regarded as the fountain of justice and this idea
came into vogue after Norman Conquest of 1066. This was a Royal Prerogative which
extended over the Kings dominions. The King in Council could thus hear appeals from the
Courts in the Dominions. And this was "the inherent prerogative right, the duty of the Queen
in Council to exercise an appellate jurisdiction to ensure the due administration of justice in
the individual case and also to preserve the due course of procedure generally". Every subject
had a right to petition the King for Justice if he could not get it from the Courts. And appeals
from overseas dominions could only be to the King in Council. Besides, the Charter of 1726
issued to the East India Company by George I for the first time provided for appeal from
India to the Privy Council in England and introduced English law by the establishment of the
Mayor's Court. After the Judicial Committee Act, 1833, the Privy Council came to be called
the Judicial Committee of the Privy Council.
Dhaka High Court
The High Court of Bengal (Order) 1947 promulgated under the Provisions of section
9 of the Indian Independence Act, 1947 providing for establishing a separate High Court for
East Pakistan as the High Court of Judicature of East Bengal at Dhaka.
Federal Court of Pakistan
Under the provision of the Federal Courts Order 1947, Federal Court of Pakistan was
established in Karachi under the provisions of the Privy Council (Abolition of Jurisdiction)
Act, 1950. The jurisdiction of Privy Council to appeals was taken away and the same power
was vested in the Federal Court of Pakistan.
5
Supreme Court of Pakistan
With the coming into operation of the Constitution of the Islamic Republic of
Pakistan, 1956 the Supreme Court of Pakistan was established in place of Federal Court as
Apex Court of the country. The Supreme Court was also vested with original jurisdiction in
any dispute between the Federal Government and Provincial Governments, and between the
Government of Provinces, and also jurisdiction to issue writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warrant and Certiorari for the enforcement of fundament rights.
Post Independence Period
Laws
a) The Acting President Promulgated the laws continuance Enforcement Order,
1971 providing "all laws that were in force in Bangladesh on 25th March, 1971
shall subject to proclamation aforesaid continue to be so in force with such
consequential changes as may be necessary on account of the creation of the
sovereign independent state of Bangladesh formed by the will of the people of
Bangladesh and that the Government officials-Civil Military-judicial and
diplomatic who take oath of allegiance to Bangladesh shall continue in their
offices on terms and conditions of service so long enjoyed by them".
b) On 11th January, 1972 the Provincial Constitution Order, 1972 was
promulgated by the President providing amongst other.
(i) for a Constituent Assembly consisting of the members of
the National Assembly and Provincial Assembly elected by
the people in December 1970 and January 1971.
(ii) for the High Court of Bangladesh consisting of a Chief
Justice and other Judges.
At present we have about 740 Acts, 507 Ordinances and some Regulations. The Acts and
Ordinances, uniform Rules, which distill in a coherent manner the principles that have been
developed over many years of practical operation of the previous legislation and Court Rules,
identify the objects of case management as follows:
• The just determination of proceedings.
• The efficient disposal of the business of the Court.
• The efficient use of available judicial and administrative resources.
• The timely disposal of the proceedings, and all other proceedings in the Court, at a
cost affordable by the parties.
The Acts also require the practice and procedure of the Courts to be implemented with the
object of eliminating unnecessary delay, as defined. Furthermore, Court practices and
procedures are required by the Acts to be implemented with the object of resolving issues, so
that the cost to the parties is proportionate to the importance and complexity of the subject
matter in dispute.
In order to serve the overriding purpose, and to meet the other objectives specified, the
Courts are given a comprehensive range of powers including:
• Power to direct parties to take specified steps and to comply with timetables and
otherwise to conduct proceedings as directed, with respect to discovery, admissions,
6
inspection of documents or property, pleadings, particulars, cross-claims, affidavits or
statements, time place and mode of hearing.
• Powers with respect to the conduct of the hearing, including limiting the time that
may be taken in cross-examination, limiting the number of witnesses, limiting the
number of documents that may be tendered, limiting the time that may be taken by a
party in presenting its case or in making submissions.
• The exercise of such powers may identify certain matters required to be taken into
account including the subject matter, complexity or simplicity of the case and the
efficient administration of Court lists.
• Powers have also been conferred to direct a lawyer for a party to provide to his or her
client a memorandum stating the estimated length of the trial and estimated costs of
legal representation.
Courts
High Court of Bangladesh
In pursuance of the High Court of Bangladesh Order, 1972 (President's Order 5 of
1972) promulgated on 17th January, 1972, the High Court which existed on 26th March, 1971
started functioning with almost all powers exercised by the then High Court of judicature at
Dacca in East Pakistan.
Subordinate Judiciary
Under the laws continuance Enforcement Order, 1972, the Subordinate Judiciary and
Magistracy continued to function after taking oath of allegiance to Bangladesh.
Constitution of Bangladesh
The Constituent Assembly of Bangladesh framed and passed the Constitution of
Bangladesh within a short span of time after independence on 4th November, 1972 and it
came into force on 16th December, 1972.
Supreme Court of Bangladesh
In exercise of powers conferred under Article 94 the Apex Court of the country was
established which consists of:
(a) The Appellate Division.
(b) The High Court Division.
The powers and jurisdiction of the Appellate Division
(1) The Appellate Division shall have jurisdiction to hear and determine
appeals from judgments, decrees, orders or sentences of the High court
Division.
(2)An appeal to the Appellate Division from a judgment, decree, order
or sentence of the High Court Division shall lie as of right where the
High Court Division-
(a) Certifies that the case involves a substantial question of law as to
the interpretation of the Constitution; or
(b) has sentenced a person to death or to imprisonment for life; or
7
(c) has imposed punishment on a person for contempt of that
division;
and in such other cases as may be provided for by Act of Parliament.
(3) Appeals from the judgments, decrees, orders or sentences of the
High Court Division in a case to which clause (2) does not apply shall lie
only if the Appellate Division grants leave to appeal.
(4) Appeals from the judgments and orders of the Administrative
Appellate Tribunal only if the Appellate Division grants leave.
(5) If at any time it appears to the President that question of law has
arisen, or is likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme
Court upon it, he may refer the question to the Appellate Division for
consideration and the Division may after such hearing as it thinks fit,
report its opinion thereon to the President.
The law declared by the Appellate Division shall be binding on the High Court
Division and all Courts Subordinate to it.
The Jurisdiction of the High Court Division
1. The High Court Division has original, appellate and other jurisdictions, powers and
functions as are conferred by the Constitution and other laws-
(a) Original jurisdictions are writ, company, Admiralty matters
(b) The appellate and revisional powers are from the judgments and orders of
the District Judges, Joint District Judges, Sessions Judges etc, Special
Tribunals, Special Judges, Artha Rin Adalats, Dhruta Bichar Tribunals, and
Bankruptcy Courts etc.
(c) Contempt matters.
The law declared by the High Court Division shall be binding on all Courts
Subordinate to it.
Subordinate Courts
Civil Courts
(i) The District Judges.
(ii) The Additional District Judges.
(iii) The Joint District Judges.
(iv) The Assistant Judges.
Criminal Courts
(i) Courts of Session
(a) Session Judges
(b) Additional Session Judges
(c) Assistant Session Judges
Administration of justice in the Subordinate Courts
A. The Assistant Judge - when the valuation of the civil suit,
valued according to the provisions of Suit valuation Act 1887,
is up to Tk.2,00,000/- the plaint is to be presented in that Court
of the local area.
8
B. Senior Assistant Judge – when the valuation is above that
amount and up to 4,00,000 the plaint is to be presented in the
Court of Senior Assistant Judge of the local area.
C. Joint District Judge – when the valuation is above that
amount, the plaint is to be presented in the Court of Joint
District Judge of the local area.
D. Small cause Courts – A small cause Courts have jurisdiction
to dispose of suits for eviction of tenants and realisation of
arrear rents etc. are to be filed in the local area according to the
valuation of the local area vested with small cause power.
E. Family Courts – A plaint under the Family Court Ordinance,
1985 in a matrimonial dispute is to be presented in the Court of
Assistant Judges of the local area.
F. Pre-emption Cases – In application (Suit) for getting any
immovable property by pre-emption of the sale is to be filed in
the Court of Assistant Judges or Joint District Judges of the
respective local areas according to the value of the sale deed.
G. Rent Control Cases – An application for fixation of standard
rent or other reliefs by a tenant in respect of any house/shop is
to be filed in the Court of Assistant Judge of the local area
appointed as Rent Controller.
H. Probate/succession cases – An application for Probate or
Letters of Administration of a will of a deceased person or an
application for Succession Certificate for collection of debts
and securities due to the deceased is to be filed in the Court of
Joint District Judge of the local area vested with the power of
District Delegate. If such proceeding is contested the case is
sent to the District Judge for disposal.
I. Bank loan suits – A suit for recovery of loan of financial
institutions including banks is to be filed in the Court of Joint
District Judges of the local area vested with the power of Artha
Rin Adalat.
J. Bankruptcy suits – A bankruptcy suit is to be filed in the
Court of the District Judge or Additional District Judge of the
local area vested with the power of Deulia Adalat. (Bankruptcy
Court)
Magistracy
Metropolitan Areas
(a)Chief Metropolitan Magistrates
(b)Metropolitan Magistrates
All over the country other than Metropolitan Areas
(a) District Magistrates (Executive)
(b) Chief Judicial Magistrates
9
(c) Additional Chief Judicial Magistrates
(d) Magistrates of the first Class
(e) Magistrates of the Second Class
(f) Magistrates of the Third Class
Power of Criminal Courts
a) Offences under the Penal Code and some other laws are tried by the Courts of
Session, Metropolitan Magistrates in Metropolitan areas and other Magistrates in
whole of Bangladesh other than Metropolitan areas.
b) The offences under the Anti Corruption Act, 1957 and the Criminal Laws
Amendment Act, 1958 are tried by Special Judges appointed under the Criminal laws
Amendment Act, 1958. The Special Judges are also holding trials in respect of
offences under the Anti-Corruption Commission Act, 2004.
c)
Labour Court
This Court has been established to adjudicate disputes regarding employment of
commercial or Industrial disputes. Each Labour Court consists of a chairman and two
members, one is appointed in consultation with the employers and the other in consultation
with the employees. This Court adjudicates industrial disputes, implementation or violation
of settlements complaints made by employers and employees/workers in respect of
retrenchment, Lay off, termination and dismissal from service, non-payment of wages,
compensation disabled in course of service, offences in respect of unfair labour practices,
breach of or failure to implement settlement, illegal strike or lock out and non-compliance of
Labour Court’s order.
Tribunals
d) The offences under the Nari-O-Shishu Nirjatan Daman Ain-2000 are being tried by
Tribunals constituted under the said Ain (Act).
e) The offences under the Ain Shrinkhola Bignakari Aparad (Dhruta Bichar) Ain, 2002
are tried by Dhruta Bichar Adalats.
f) The offences under the Dhruta Bichar Tribunal Ain, 2002 are tried by Dhruta Bichar
Tribunal. (Speedy Tribunal in respect of specific offences)
g) The offences under the Acid Aparad Daman Ain, 2002 are tried by Acid Aparad
Daman Tribunal. These are relating to acid burn cases.
h) The offences under the Special Powers Act, 1974 are tried by the Special Tribunals
constituted under the Act. Offences relating to smuggling, Black Marketing, Arms and
Ammunition etc.
i) Administrative Tribunal – This Tribunal has exclusive jurisdiction to hear and
determine applications made by any person in the service of Government excluding a
person in the defence service and organisations such as Bangladesh Bank etc. in
respect of terms and conditions of his service.
j) Administrative Appellate Tribunal – An appeal lies from the decision of the
Administrative Tribunal consisting of a chairman and two members.
k) Labour Appellate Tribunal – Any person aggrieved by an award of the Labour
Court may prefer an appeal to the appellate tribunal.
l) Taxes Appellate Tribunal
10
1) Any person aggrieved by an order of the Deputy Commissioner of Taxes may
prefer an appeal to the Appellate Joint Commissioner or an order of the Inspecting
Joint Commissioner to the commissioner (Appeal)
2) If an assessee is aggrieved by an order of the Appellate Joint Commissioner or
Commissioner (Appeal), he may prefer an appeal to the Taxes Appellate Tribunal.
L) Customs, Excise and value Added Tax Appellate Tribunal
Any person aggrieved by a decision or order of any officer of Customs, Excise and
VAT may prefer appeal to the commissioner (Appeal)
(i) Any person aggrieved by an order or decision of the commissioner or
commissioner (Appeal) may prefer an appeal to the Customs, Excise and VAT
Appellate Tribunal.
M) Election Tribunals
(a) Election disputes under the Representation of the Peoples Order, 1972 in
respect of the election of Members of Parliament are being adjudicated by the
High Court Division. The election disputes of the Chairmen, Commissioners,
Members of local bodies such as Union Parishads in the rural areas,
Pourashavas in Urban areas, Mayor and Commissioners of City Corporations
are disposed of Election Tribunals appointed by the Election Commission
which is entrusted with the function of organising, holding and conducting the
elections.
N) The International Crimes Tribunal-
This Tribunal was constituted by the Government in exercise of powers under section
6 of the International Crimes (Tribunal) Act, 1973 consisting of a Chairman and two
members. The chairman and one member are Judges of the High Court Division and
another member is a Senior Judicial officer in the rank of a District and Sessions Judge.
This Tribunal was constituted for the purpose of trial of offences mentioned in Section 3,
such as (a) Crimes against Humanity, (b) Crimes against peace, (c) Genocide, (d) war
crimes, (e) Violation of any humanitarian rules applicable in armed conflicts laid down in
the Geneva conventions, 1949, (f) Any other crimes under the International Law.
Mediation in Bangladesh (ADR)
Key Legislative provisions relating to types of mediation of disputes in Bangladesh are as
under:
Status of
Mediation
Relevant Legislation Relevant Sections Key Actors
The Code of Civil Procedure
(Amendment) Act, 2003
Section 89A2 The court itself or a third party
mediator.
Artha Rin Adalat Ain,2003 Sections 21 & 22 The court itself or a third party
mediator
Judicial
or
Formal
The Family Courts Ordinance, 1985 Sections 10(3), 10(4) & 13 The court itself
Village Court Act, 2006 Sections 4, 5, 6 & 7
Conciliation Of Disputes In Municipal
Area, 2004
Sections 3(1); 4 & 7
Local Government
Representatives (Up &
Pouroshova) and respective
representative of each party.
Informal
or
Non-
Formal
Criminal Procedure Code, 1898
[Withdrawal of Complaints in
Section 345 compounding offences
mentioned in the chart.
11
compoundable offences]
Arbitration Act, 2001 Section 22
Code of Civil Procedure, 1908
Sections 89A and 89B of the Code of Civil Procedure, 1908 deals the provision for
mediation. The application for mediation may be submitted by the both parties at any stage
after filing the written statement that they will mediate the dispute. Then the court would
adjourn the proceeding for mediation. The Judge itself can mediate the dispute under this
section. The fee of the mediator shall be fixed by the parties and if the court mediates the
dispute itself, the judge can not claim any fee or charge for it. Within ten days of order for
mediation the both parties will serve notice in writing to the court about the progress of
initiation for mediation and the mediation procedure will have to be completed with in 60
days. If it is not completed with in 60 days another 30 days can be extended. If the mediation
becomes successful, the mediator will draft an agreement on such terms and conditions as the
parties agreed upon. The parties will sign on it and then the lawyers and representatives will
sign as witnesses. This agreement will be submitted in the court and the court will pass a
decree. If the Judge mediates the dispute he will also follow the same procedure as
enumerated above. If the mediation procedure fails the proceedings of the suit will start from
the stage it has been stopped before mediation. If the mediation fails no statement, evidence
or other statements made at the time of mediation can be used at the time of trial of the suit.
Artha Rin Adalat Ain, 2003
Sections 21 and 22 of the Artha Rin Adalat Ain, 2003 provide for Settlement Conference
after the filing of written statement. The Judge may request the parties and their lawyers to
remain present in Court to resolve the dispute. The Judge will convene the meeting and fix up
the venue, procedure and function. The conference shall be in camera. The Judge will explain
the matter in dispute before the parties or representatives identifying their issues in dispute. If
the parties or their representatives agree to resolve the dispute, the parties or their
representatives will sign the agreement and the lawyers and others will sign as witnesses.
Thereafter that the Judge will pass a decree on the basis of the agreement. No appeal or
revision can be filed from the decree passed on the settlement conference.
The Family Court Ordinance, 1985:
When the written statement is filed, the Family Court Shall fix a date ordinarily not
more than thirty days from the date of filing written statement for a pre-trial hearing of the
suit. On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written
statement and documents filed by the parties and shall ascertain the points in issue between
the parties. If no compromise or reconciliation is possible, the Court shall frame the issues in
the suit and fix a date for recording evidence.
Constitution Fifth Amendment Case
By the Martial Law declared on 15th August, the judicial power of reviewing
Proclamations, Martial Law Regulations and Orders and actions taken by the Martial Law
Authority were restricted. The fundamental rights were curtailed. The Constitution was
12
amended by changing its basic features. The secular status of the country was converted into
a fanatic country. One Pak Italian Marble Works Company owns a cinema hall under the
name ‘Moon Cinema’. The Cinema hall was placed under the disposal of Bangladesh
(Freedom Fighters) Welfare Trust in 1971. The Company moved a writ petition against the
taking over of the Cinema hall. The High Court Division directed the Government to release
the Cinema hall. Despite such direction the Government did not release the cinema hall and
maintained that in view of the Martial Law Regulation No.VII of 1977, the judgment of the
High Court Division was not binding upon them and that they were not legally bound to hand
over the possession. Thereafter the owner of the cinema hall moved a writ petition
challenging the "ratification and confirmation" of the Abandoned Properties (Supplementary
Provision) Regulation, 1977, Martial Law Regulation VII of 1977 and Proclamations
Amendment Order, 1977 with regard to insertion of paragraph 3A in the Fourth Schedule of
the Constitution by paragraph 18 therein. The High Court Division by judgment and order
dated 29th August, 2005 declared “all Proclamations, Martial Law Regulations and Martial
Law Orders made during the period from 15th August, 1975 to 9th April, 1979 were illegal,
void and non-est because those were made by persons without lawful authority and the
Constitution was made subordinate and subservient to the Martial Law Proclamations,
Martial Law Regulations and Martial Law Orders by proclamations”.
Some political activists challenged the said judgment in the Appellate Division of the
Supreme Court of Bangladesh. The Appellate Division by judgment and order dated 19th
November, 2009 maintained the judgment of the High Court Division observing that “since
the Constitution is the Supreme law of the land and the Martial Law Proclamations,
Regulations and Orders promulgated by the usurpers being illegal, void and non-est in the
eye of law, could not be ratified and confirmed by the Second Parliament by the Fifth
Amendment, as it itself had no such power to enact such laws as made by the Proclamations”.
Moreover, it is observed, “the Fifth Amendment ratifying and validating Martial Law
Proclamations, Regulations and Orders not only violated the supremacy of the Constitution
but also rule of law and by preventing judicial review of the legislative and administrative
actions, also violated two other more basic features of the Constitution, namely,
independence of judiciary and its power of judicial review”.
Constitution Eight Amendment Case
Another Landmark case is commonly known as Eight Amendment case. A writ
petition was filed in the High Court Division challenging the Constitution (Eight
Amendment) in which the Government amended Article 100 of the Constitution. By this
amendment, six permanent Benches of the High Court Division were created at head quarters
of different districts. One Anowar Hossain challenged the said amendment on the ground that
the said amendment was in violation of provisions of the Constitution. The Appellate
Division declared that the impugned amendment of Article 100 along with consequential
amendment of Article 107 of the Constitution is ultravires the Constitution. It was observed
that the said amendment is ultravires because it has destroyed the essential limb of the
judiciary namely, the Supreme Court of Bangladesh by setting up rival courts to the High
13
Court Division in the name of permanent Benches. This said amendment was also ultravires
to Articles 44, 94, 101, 102 of the Constitution, because
"(1) All powers in the Republic belong to the people-this a concept of sovereignty
of the people. Sovereignty lies with the people not with executive,
legislature or judiciary-all these three are creations of the Constitution
itself.
3) They are exercised on behalf of the people shall be effected only, under, and by
the authority of the Constitution. This is the concept of limited Government based
on theory of separation of powers and then Article 7(2) says significantly that this
Constitution is, as the solemn expression of the will of the people, the supreme
law of the Republic-This is the supreme law not in theory because it says "if any
other law is inconsistent with this Constitution that other law shall, to the extent of
the inconsistency, be void.”
Environmental Protection Litigation
A public interest writ petition was filed in the High Court Division by a Non-
Government Organisation for protection from pollution and also to preserve the original
territories of the rivers flowing in or around the Dhaka City namely Buriganga, Turag, Balu
and Shitalakya. The High Court Division upon hearing made the rule absolute and issued the
following directions upon the concerned Deputy Commissioners of the four districts and also
the Government.
a) to declare the rivers as ecologically critical area.
b) to make a survey of these four rivers delineating the area of encroachment by
encroachers.
c) the walkway and pavement be constructed on the banks of the rivers besides trees
to be planted thereon.
d) all encroachments inside the rivers must be removed by 30th November, 2010.
e) to establish a National River Protection Commission within three months.
2009(XVII) BLT(HCD)455
These directions have been approved by the Appellate Division.
Independence of Judiciary & Rule of Law
Judicial Activism
Indemnity Ordinance Case
After the brutal murder of the father of the nation Bangabandhu Sheikh Mujibor
Rahman and his family members including his youngest son, a child of ten years by some
aberrated army officers on 15th August, 1975 Khandaker Moshtaque Ahmed, who was set up
by the killers declared Martial Law on 20th August, 1975 with retrospective effect from 15th
August, 1975. In the Proclamation amongst others, it was provided in clause (g) that “no
court, including the Supreme Court, or Tribunal or Authority shall have any power to call in
question in any manner whatsoever or declare illegal or void this Proclamation or any Martial
Law Regulation or Order ---------“. Thereafter on 26th September, 1975 Khandaker
Moshtaque Ahmed promulgated the Indemnity Ordinance, 1975 providing therein as under:
14
"Restrictions on the taking of any legal or other proceedings against
persons in respect of certain acts and things.-(1) Notwithstanding anything
contained in any law, including a law relating to any defence service, for the
time being in force, no suit, prosecution or other proceedings, legal or
disciplinary, shall lie, or be taken in, before or by any court, including the
Supreme Court and Court Martial, or other authority against any person,
including a person who is or has, at any time, been subject to any law relating
to any defence service, for or on account of or in respect of any act, matter or
thing done or step taken by such person in connection with, or in preparation
or execution of any plan for, or as necessary step toward, the change of
Government of the People's Republic of Bangladesh and the Proclamation of
Martial Law on the morning of the 15th August, 1975."
This Ordinance was promulgated with a view to save killers of Bangabandhu Sheikh
Mujibor Rahman from prosecution. After the Awami League came in power in 1996, the
Government repealed the Ordinance. One Mohitul Islam, then worked as Assistant of
Bangabandhu Sheikh Mujibor Rahaman thereafter instituted a criminal case against the
persons involved in the carnage being Dhanmondi P.S. Case No.10(10)96 dated 2nd October,
1996. Shahriar Rashid Khan and Syed Faruque Rahman, two accused persons filed writ
petitions in the High Court Division challenging the institution of the case on the ground that
all acts relating to the occurrence of 15 August, 1975 were indemnified by the Indemnity
Ordinance the entire subject matter which has been ratified and validated by Proclamation
Order No.1 of 1977 and the Constitution Fifth Amendment, and thus their prosecution is
without jurisdiction. The High Court Division discharged the rule.
The accused persons thereupon challenged the judgment of the High Court Division
in the Appellate Division of the Supreme Court of Bangladesh. The Appellate Division
upheld the judgment of the High Court Division observing that the effect of repeal of a law is
that as if it never existed and it is obliterated completely from the records of the Parliament
except for the purpose of those actions which were taken under it. That being the position in
law, the Indemnity Ordinance was not in existence after the passing of the Repeal Act.
The accused persons who were involved in the carnage were tried and convicted by
the learned Sessions Judge by the judgment and order dated 8th November, 1998 under
sections 120B and 302/34 of the Penal Code and sentenced 15 of them to death. The High
Court Division maintained the conviction and sentence in respect of 12 accused persons.
Some of the convicts moved the Appellate Division of the Supreme Court of Bangladesh
against the said conviction and sentence and the conviction was upheld by six member Bench
of the Appellate Division by judgment and order dated 19th November, 2009. (ADC.
Vo.VI(A)). The trial was held after 21 years of the incident. In the context of the matter the
Appellate Division observed “The basic elements of a criminal Justice system are an
impartial fact-finding process and a fair and equitable resolution. The ethical and moral duties
of those who work within the system are typically consistent with the concept of Justice. The
criminal Justice system in a country is designed to protect the citizens of the country from the
15
onslaught of criminal activities of a section of people who indulge in such acts. The state as a
guardian of fundamental rights of its citizens is duty bound to ensure the administration of
Justice and the rule of law. It is in the interest of the people that the guilt of the offender who
has indulged in criminal activity is tried as early as possible”.
Another Landmark judgment in the judicial history is the case of Masdar Hossain. In
that case some judicial officers serving in the subordinate judiciary filed a writ petition in the
High Court Division challenging the Bangladesh Civil Service (Reorganization) Order, 1980
purporting to incorporate “judicial service” within the Bangladesh Civil Services as one of
the cadre services as ultravires the Constitution and violative of Articles 27 and 29 of the
Constitution. The matter ultimately went to the Appellate Division and the Appellate
Division in (20 BLD(AD)104) declared as under:
"1) It is declared that the judicial service is a service of the Republic within
the meaning of Article 152(1) of the Constitution, but it is a
functionally and structurally distinct and separate service from the
civil executive and administrative services of the Republic with
which the judicial service cannot be placed on par on any account
and that it cannot be amalgamated, abolished, replaced, mixed up and
tied together with the civil executive and administrative services.
2) It is declared that the word "appointments" in Article 115 means that it
is the President who under Article 115 can create and establish a
judicial service and also a magistracy exercising judicial functions,
make recruitment rules and all pre-appointment rules in that behalf,
make rules regulating their suspension and dismissal but Article 115
does not contain any rule-making authority with regard to other
terms and conditions of service and that Article 133 and Article 136
of the Constitution and the Services (Reorganization and Conditions)
Act, 1975 have no application to the above matters in respect of the
judicial functions.
3) It is declared that the creation of B.C.S. (Judicial) cadre along with
other B.C.S. executive and administrative cadres by Bangladesh
Civil Services (Reorganisation) Order, 1980 with amendment of
1986 is ultra vires the Constitution. It is also declared that
Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable
to the judicial service.
4) The appellant and the other respondents to the writ petition are
directed that necessary steps be taken forthwith for the President to
make Rules under Article 115 to implement its provisions which is a
constitutional mandate and not a mere enabling power. It is directed
that the nomenclature of the judicial service shall follow the
language of the constitution and shall be designated as the Judicial
Service of Bangladesh or Bangladesh Judicial Service. They are
further directed that either by legislation or by framing Rules under
Article 115 or by executive Order having the force of Rules a
16
Judicial Services Commission be established forthwith with majority
of members from the Senior Judiciary of the Supreme Court and the
Subordinate Courts for recruitment to the judicial services on merit
with the objective of achieving equality between men and women in
the recruitment.
5) It is directed that under Article 133 law or rules or executive orders
having the force of Rules relating to posting, promotion, grant of
leave, discipline (except suspension and removal), pay, allowances,
pension (as a matter of rights, not favour) and other terms and
conditions of service, consistent with Article 116 and 116A, as
interpreted by us, be enacted or framed or made separately for the
judicial service and magistrates exercising judicial functions keeping
in view the constitutional status of the said service.
6) The impugned orders in the writ petition dated 28.2.1994 and
2.11.1995 are declared to be ultra vires the Constitution for the
reasons stated in the judgment. The appellant and the other
respondents to the writ petition are directed to establish a separate
Judicial Pay Commission forthwith as a part of the Rules to be
framed under Article 115 to review the pay, allowances and other
privileges of the judicial service which shall convene at stated
intervals to keep the process of review a continued one. The pay etc,
of the judicial service shall follow the recommendations of the
Commission.
7) It is declared that in exercising control and discipline of persons
employed in the judicial service and magistrates exercising judicial
functions under Article 116 the views and opinion of the Supreme
Court shall have primacy over those of the Executive.
8) The essential conditions of judicial independence in Article 116A,
elaborated in the judgment, namely, (1) Security of tenure, (2)
security of salary and other benefits and pension and (3) institutional
independence from the Parliament and the Executive shall be secured
in the law or rules made under Article 133 or in the executive orders
having the force of Rules.
9) It is declared that the executive Government shall not require the
Supreme Court of Bangladesh to seek their approval to incur any
expenditure on any item from the funds allocated to the Supreme
Court in the annual budgets, provided the expenditure incurred falls
within the limit of the sanctioned budgets, as more fully explained in
the body of the judgment. Necessary administrative instructions and
financial delegations to ensure compliance with this direction shall
be issued by the Government to all concerned including the appellant
and other respondents to the writ petition by 31.5.2000.
17
10) It is declared that the members of the judicial service are within the
jurisdiction of the administrative tribunal. The declaration of the
High Court Division to the opposite effect is set aside.
11) The declaration by the High Court Division that for separation of the
subordinate judiciary from the executive no further constitutional
amendment is necessary is set aside. If the Parliament so wishes it
can amend the Constitution to make the separation more meaningful,
pronounced, effective and complete.
12) It is declared that until the Judicial Pay Commission gives its first
recommendation the salary of Judges in the judicial service will
continue to be governed by status quo ante as on 8.1.94 vide
paragraph 3 the Order of the same date and also by the further
directions of the High Court Division in respect of Assistant Judges
and Senior Assistant Judges. If pay increases are effected in respect
of other services of the Republic before the Judicial Pay Commission
gives its first recommendation the members of the judicial service
will get increases in pay etc. commensurate with their special status
in the Constitution and in conformity with the pay etc. that they are
presently receiving."
Judicial Ethics
1. A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF
THE JUDICIARY.
An independent judiciary is indispensable to the justice system in Bangladesh. A
judge should participate in establishing, maintaining, and enforcing high standards
of conduct, and should personally observe those standards, so that the integrity
and independence of the judiciary may be preserved. The provisions of this Code
should be construed and applied to further that objective.
2. A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL ACTIVITIES
A) A judge should respect and comply with the law and should act at all times in
a manner that promotes public confidence in the integrity and impartiality of
the judiciary.
B) A Judge should not allow family, social, or other relationships to influence
judicial conduct or judgment. A judge should not lend the prestige of the
judicial office to advance the private interest of others; nor convey or permit
others to convey the impression that they are in a special position to
influence the judge.
C) A Judge should not hold membership in any organization that practices
invidious discrimination on the basis of race, sex, cast, religion, or place of
birth.
18
3. A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE
IMPARTIALLY AND DILIGENTLY.
The judicial duties of a judge take precedence over all other activities. In performing the
duties prescribed by law, the judge should adhere to the following standards:
(1) A judge should be faithful to and maintain professional competence in the law,
and should not be swayed by partisan interests, public clamor, or fear of
criticism.
(2) A judge should hear and decide matters assigned, unless disqualified, and should
maintain order and decorum in all judicial proceedings.
(3) A judge should be patient, dignified, respectful, and courteous to litigants,
lawyers, and others with whom the judge deals in an official capacity, and
should require similar conduct of those officers to the judge’s control, including
lawyers to the extent consistent with their role in adverserial system.
(4) A judge should accord to every person who is legally interested in a proceeding,
or the person’s lawyer, full right to be heard according to law, and, except as
authorized by law, neither initiate nor consider ex- parte communications on the
merits, or procedures affecting the merits of a pending or impending proceeding.
(5) A judge should dispose promptly the business of the Court including avoiding
inordinate delay in delivering judgments/orders.
(6) A judge should avoid public comment on the merits of a pending or impending
court case.
GENERAL DISQUALIFICATIONS TO HEAR AND MATTER:
(a) The judge shall disqualify himself or herself in a proceeding in which the
judge’s impartiality might reasonably be questioned.
(b) The judge shall disqualify to hear a matter/cause where he severed as lawyer
in the matter in controversy, or a lawyer with whom the judge previously
practiced law served during such association as a lawyer concerning the
matter, or the judge or such lawyer has been a material witness.
(c) The judge knows that, individually or as a fiduciary, the judge or the judge’s
spouse or minor child residing in the judge’s household, has a financial
interest in the subject matter in controversy or in a party to the proceeding, or
any other interest that could be affected substantially by the outcome of the
proceeding.
(d) The judge or the judge’s spouse, or a person related either to the Judge or the
spouse:
i) is a party to the proceeding, or an officer, director, or trustee of a
party;
ii) is acting as a lawyer in the proceeding;
iii) is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding; or
iv) is to the judge’s knowledge likely to be a material witness in the
proceeding.
19
(e) The Judge has served in governmental employment and in such capacity
participated as counsel, advisor, or material witness concerning the
proceeding or has expressed an opinion concerning the merits of the particular
case in controversy.
4. A judge must not enter into public debate or express his views in public on
political matters or on matters that are pending or are likely to arise for judicial
determination before him.
5. A judge is expected to let his judgments speak for themselves. He will not give
interviews to the media.
6. A judge will not accept gifts or hospitality except from his family, close relatives
and friends.
7. A judge should not engage directly or indirectly in trade or business, either by
himself or in association with any other person. (Publication of legal treatise or
any activity in the nature of a hobby will not be construed as trade or business).
8. A judge should not ask for, accept contributions or otherwise actively associate
himself with the raising of any fund.
9. Every judge must at all times be conscious that he is under the public gaze and
there should be no act or omission by him which is unbecoming of his office.
10. A judge shall disclose his assets and liabilities if, asked for, by the Chief Justice.
Judicial Development Programme
The Judicial Development Programme in Bangladesh is a multi-lateral project to build the
capacity of Judges and Magistrates. This programme has a very significant training focus as
under:
a) It has undertaken training for Judges of the Subordinate Courts and Magistrates.
b) It has supported the development and strengthening of a system of national
coordination for judicial training.
c) It has been conducting training on Court rules, Procedures and a range of technical
specialties, including juvenile Justice and Court practice.
d) It has developed a monitoring and evaluating strategy to evaluate the impact and
effectiveness of project activities and training within the participating judiciaries.
Conclusion
To Summarise, the essential requirements for the efficient and expeditious
administration of justice are now well known:
(1) A Court must monitor and manage both its caseload and individual cases.
(2) Management cannot be successful without judicial leadership and commitment.
(3) Procedures must be clearly established in legislation, Court rules and written
practices.
(4) Cases must be brought under Court management soon after their commencement.
(5) Different kinds of cases require different kinds of management.
(6) The degree and intensity of management must be proportionate to what is in dispute
and to the complexity of the matter.
(7) The number of Court appearances must be minimised.
20
(8) Realistic but expeditious timetables must be set and unless there is good reason, must
be adhered to.
(9) A key objective is to identify the issues really in dispute early in the proceedings.
(10) Trial dates must be established as soon as practicable and must be definite, so as to
ensure compliance with timetables.
(11) Alternative dispute resolution should be encouraged and sometimes mandated.
(12) Monitoring of the caseload must provide timely and comprehensive information to
judges and Court officers involved in management. Time standards may be useful in
focusing the attention of all those involved.
(13) Communication and consultation within the Court and with others involved in the
litigation process is an ongoing process.
Of all the requirements, one is overriding. Unless there is judicial commitment to the
process, it will not work.
Thanking you all and wish you all a happy life and sound health.
Dated
12th September, 2010 (Justice S.K.Sinha)
Appellate Division
Supreme Court of Bangladesh.
Mr. Chairman of the Session,
Distinguished Delegates, Ladies & Gentlemen
It is a matter of great pleasure for me to be amidst this seminar and session of legal
professionals, academicians and Judges. My roots and, therefore, my heart lie in the legal
profession. On this occasion, I take the privilege to give you a comprehensive picture about
Judicial Development in Bangladesh.
The judiciary of Bangladesh has been facing lot of hurdles to achieve its
independence, to maintain the rule of law and to ensure its Supremacy. It has crossed the
'Delinquency period' of four Martial Laws and other related rules. The glimpses of the
judicial development in Bangladesh are depicted as under.
Colonial Period
Sources of English Legal History
Anglo-Saxon Law
There are three groups which fall under this system
(I) The Dooms-They were largely written in Anglo-Saxon, Probably of the
Norman period those are Code of Alfred who declared that he has not made
many new laws of his own, but chosen those of his predecessors that seemed
to him wisest-these dooms seem largely concerned with public law and give us
minute tariffs of oaths regulating the methods of proof and the administration
of justice.
(II) the Diplomata-Law book with a fex Saxon "wills".
(III) the Ecclesiastical Documents-The Church and state were divided and the
cleric was from his learning and clerkly ability naturally the lawyer, and, so
far as such existed, the historians of the time. From these monasteries have
come documents which must be carefully weighed if the history of Anglo
Saxon law is to be written-they saw the nature of property owned and the
manner of life in those days.
(IV)
Common Law
Principal Source are at present time statute and case laws-the most important are
certain official records, such as the plea Rolls, and Professional literature, which includes text
books and collection of precedents either of pleadings of non-litigious instruments.
The Common Law Courts
Courts of Assize
The system of sending out justices from the kings council may have been instituted
even before the conquest, and William-I exercised this prerogative right as least 1072-They
sent out as occasion demanded and their duties were administrative rather than judicial-Henry
2
11 reorganized the system and divided England into circuits, which were regularly ridden for
the purpose.
Commission of Assize
Henry 11 appointed the justices to take the assizes, and also introduced the earliest
forms of commission Ad Omnia Placita.
Hierarch-A ruler in holy thing-a chief priest.
Hierarcy-The collective body of angels.
Mayor's Courts-They derived their power direct from the crown, were established in
the presidency towns of Calcutta, Madras and Bombay in 1728 under charter of September
24, 1726 by king Gorge-I to the United Company of merchants of England trading to the East
Indies. Their jurisdiction was confined to the Presidency towns or English factories
Subordinate to them from the administration of justice among the English men. Those natives
who submitted to their jurisdiction the law administered by them was English Common law
together with statutory law then in force in England.
Supreme Court
The charter establishing in Supreme Court of Judicature at Fort William was issued
on 26th March, 1774 in pursuance of Regulating Act 1773. The Mayor's court transferred all
proceedings before it for the more speedy and effectual administration of justice in Civil
cases, and for criminal offences-it was a court of record.
The Sadar Diwani Adalat and Nizamat Adalat
The battle of plassy gave the deathblow to Moslem rule-the overlodship of Bengal,
Bihar, Orissa was taken over by the English. The grant of Diwani to the East India Company
in 1765 was a cession to the East India Company of the military Government of the
provinces, of the right of administration of civil justice, and of the complete control of the
finances and to providing for the expenses of administering criminal justice, and the
maintenance of police. The Nizammat, or administrator of criminal justice and police was at
the same time, conferred upon the Nawab Nazm-ud-Daula.
Calcutta High Court
The Mutiny in 1857 necessitated rethinking on the administration of India and
reorganization of the law Courts. The Supreme Court of Calcutta and the Sadar Courts ceased
to exist on 30th June, 1862. Indian High Court Act, 1861 was passed and the charter of the
Calcutta High Court was issued on 14th May 1862.
The consolidation of Supreme Court and the Sadar Court into one was made for the
purpose of securing better administration of justice-the Supreme Court being represented by
what is called the original side, and the Sadar Court by its Appellate side.
Codification of laws and Reforms
a) In 1861 the third Law commission was appointed. The Commission submitted the
following draft laws.
(i) Law of succession applicable to all except Hindus and Muslims.
(ii) Contract Act.
(iii) Law of Negotiable Instruments.
3
(iv) Law of Evidence.
(v) Transfer of Property Act.
(vi) Code of Criminal Procedure.
b) In 1879 the Fourth Law Commission was appointed and this commission
recommended the amendment of some laws and enactment of some new laws. The
following substantive laws were enacted after amendment.
(i) The Contract Act, 1872.
(ii) The Transfer of Property Act, 1882.
(iii) Negotiable Instrument, Act, 1881.
(iv) Evidence Act, 1872.
(v) Code of Criminal Procedure, 1898.
(vi) Code of Civil Procedure, 1908.
(vii) Limitation Act, 1908.
(viii) The Civil Court Act, 1887 was enacted after repealing Act, 1871.
(ix)
Sub-Divisional Courts
(i) During the British rule, each district was divided into several sub-divisions. In
the Sub-Divisional head quarters Courts of Munsifs deciding Civil Suits up to
valuation of Tk.1000.00. Junior Munsifs had jurisdiction up to Rs.500.00 such
Munsifs were also vested with Magisterial Powers.
(ii) There were Magistrates in the sub-division head quarters.
(iii) Magistrates were divided into three Classes- (a) Magistrates of the 1st Class,
(b) Magistrates of the 2nd Class, (c) Magistrated of the 3rd Class.
A Sub-Divisional Magistrate with power of supervision over other Magistrates
Subordinate to him was appointed.
District Courts
In the District head quarters for disposal of Civil matters the following Judges were
appointed.
(i) District Judges.
(ii) Additional Judges.
(iii) Subordinate Judges.
a) They were performing appellate jurisdiction except the subordinate judge who had
jurisdiction and decided Civil Suits of any valuation.
b) Additional Judges had mainly appellate jurisdiction and limited original jurisdiction.
When the valuation of the suits was up to Rs.5000/- the District Judge who could
hear the same or transfer the same to the Additional Judge
c) Appeals from the decisions of the Munsifs were transferred to Subordinate Judges
by the District Judge.
d) Judicial functions in the Districts of Chittagong Hill Districts were exercised by the
Deputy Commissioner and his subordinate officers of Magistrates.
e) Divisional Commissioner functioned as the Sessions Judge under the Chittagong
Hill Tracts Regulation 1900.
4
f) District Judges, Additional District Judges and Subordinate Judges were empowered
to try Criminal cases committed to them as Sessions Judges, Additional Sessions
Judges, and Assistant Sessions Judges.
g) Judges of the Courts of Session tried cases with the help of the Assessors. Jury-
Verdict of the jury was binding on the courts of Sessions but that of the Assessors
was not.
h) District Magistrates, Joint Magistrates and Additional Magistrates, if empowered,
could try cases punishable with imprisonment up to 7 years. They could hear appeals
from the sentences passed by Magistrates of the 3rd Class.
Federal Court
Under the Provisions of the Government of India Act, 1935 a Federal Court was
established in India in 1937 having power to hear appeals from the decisions of the High
Courts. But the said appellate power was limited to the interpretation of laws vis-a-vis the
Government of India Act and did not affect the jurisdiction of the Privy Council to hear
appeals from the decisions of the High Courts on merit.
Privy Council
In England, the King in Council was regarded as the fountain of justice and this idea
came into vogue after Norman Conquest of 1066. This was a Royal Prerogative which
extended over the Kings dominions. The King in Council could thus hear appeals from the
Courts in the Dominions. And this was "the inherent prerogative right, the duty of the Queen
in Council to exercise an appellate jurisdiction to ensure the due administration of justice in
the individual case and also to preserve the due course of procedure generally". Every subject
had a right to petition the King for Justice if he could not get it from the Courts. And appeals
from overseas dominions could only be to the King in Council. Besides, the Charter of 1726
issued to the East India Company by George I for the first time provided for appeal from
India to the Privy Council in England and introduced English law by the establishment of the
Mayor's Court. After the Judicial Committee Act, 1833, the Privy Council came to be called
the Judicial Committee of the Privy Council.
Dhaka High Court
The High Court of Bengal (Order) 1947 promulgated under the Provisions of section
9 of the Indian Independence Act, 1947 providing for establishing a separate High Court for
East Pakistan as the High Court of Judicature of East Bengal at Dhaka.
Federal Court of Pakistan
Under the provision of the Federal Courts Order 1947, Federal Court of Pakistan was
established in Karachi under the provisions of the Privy Council (Abolition of Jurisdiction)
Act, 1950. The jurisdiction of Privy Council to appeals was taken away and the same power
was vested in the Federal Court of Pakistan.
5
Supreme Court of Pakistan
With the coming into operation of the Constitution of the Islamic Republic of
Pakistan, 1956 the Supreme Court of Pakistan was established in place of Federal Court as
Apex Court of the country. The Supreme Court was also vested with original jurisdiction in
any dispute between the Federal Government and Provincial Governments, and between the
Government of Provinces, and also jurisdiction to issue writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warrant and Certiorari for the enforcement of fundament rights.
Post Independence Period
Laws
a) The Acting President Promulgated the laws continuance Enforcement Order,
1971 providing "all laws that were in force in Bangladesh on 25th March, 1971
shall subject to proclamation aforesaid continue to be so in force with such
consequential changes as may be necessary on account of the creation of the
sovereign independent state of Bangladesh formed by the will of the people of
Bangladesh and that the Government officials-Civil Military-judicial and
diplomatic who take oath of allegiance to Bangladesh shall continue in their
offices on terms and conditions of service so long enjoyed by them".
b) On 11th January, 1972 the Provincial Constitution Order, 1972 was
promulgated by the President providing amongst other.
(i) for a Constituent Assembly consisting of the members of
the National Assembly and Provincial Assembly elected by
the people in December 1970 and January 1971.
(ii) for the High Court of Bangladesh consisting of a Chief
Justice and other Judges.
At present we have about 740 Acts, 507 Ordinances and some Regulations. The Acts and
Ordinances, uniform Rules, which distill in a coherent manner the principles that have been
developed over many years of practical operation of the previous legislation and Court Rules,
identify the objects of case management as follows:
• The just determination of proceedings.
• The efficient disposal of the business of the Court.
• The efficient use of available judicial and administrative resources.
• The timely disposal of the proceedings, and all other proceedings in the Court, at a
cost affordable by the parties.
The Acts also require the practice and procedure of the Courts to be implemented with the
object of eliminating unnecessary delay, as defined. Furthermore, Court practices and
procedures are required by the Acts to be implemented with the object of resolving issues, so
that the cost to the parties is proportionate to the importance and complexity of the subject
matter in dispute.
In order to serve the overriding purpose, and to meet the other objectives specified, the
Courts are given a comprehensive range of powers including:
• Power to direct parties to take specified steps and to comply with timetables and
otherwise to conduct proceedings as directed, with respect to discovery, admissions,
6
inspection of documents or property, pleadings, particulars, cross-claims, affidavits or
statements, time place and mode of hearing.
• Powers with respect to the conduct of the hearing, including limiting the time that
may be taken in cross-examination, limiting the number of witnesses, limiting the
number of documents that may be tendered, limiting the time that may be taken by a
party in presenting its case or in making submissions.
• The exercise of such powers may identify certain matters required to be taken into
account including the subject matter, complexity or simplicity of the case and the
efficient administration of Court lists.
• Powers have also been conferred to direct a lawyer for a party to provide to his or her
client a memorandum stating the estimated length of the trial and estimated costs of
legal representation.
Courts
High Court of Bangladesh
In pursuance of the High Court of Bangladesh Order, 1972 (President's Order 5 of
1972) promulgated on 17th January, 1972, the High Court which existed on 26th March, 1971
started functioning with almost all powers exercised by the then High Court of judicature at
Dacca in East Pakistan.
Subordinate Judiciary
Under the laws continuance Enforcement Order, 1972, the Subordinate Judiciary and
Magistracy continued to function after taking oath of allegiance to Bangladesh.
Constitution of Bangladesh
The Constituent Assembly of Bangladesh framed and passed the Constitution of
Bangladesh within a short span of time after independence on 4th November, 1972 and it
came into force on 16th December, 1972.
Supreme Court of Bangladesh
In exercise of powers conferred under Article 94 the Apex Court of the country was
established which consists of:
(a) The Appellate Division.
(b) The High Court Division.
The powers and jurisdiction of the Appellate Division
(1) The Appellate Division shall have jurisdiction to hear and determine
appeals from judgments, decrees, orders or sentences of the High court
Division.
(2)An appeal to the Appellate Division from a judgment, decree, order
or sentence of the High Court Division shall lie as of right where the
High Court Division-
(a) Certifies that the case involves a substantial question of law as to
the interpretation of the Constitution; or
(b) has sentenced a person to death or to imprisonment for life; or
7
(c) has imposed punishment on a person for contempt of that
division;
and in such other cases as may be provided for by Act of Parliament.
(3) Appeals from the judgments, decrees, orders or sentences of the
High Court Division in a case to which clause (2) does not apply shall lie
only if the Appellate Division grants leave to appeal.
(4) Appeals from the judgments and orders of the Administrative
Appellate Tribunal only if the Appellate Division grants leave.
(5) If at any time it appears to the President that question of law has
arisen, or is likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme
Court upon it, he may refer the question to the Appellate Division for
consideration and the Division may after such hearing as it thinks fit,
report its opinion thereon to the President.
The law declared by the Appellate Division shall be binding on the High Court
Division and all Courts Subordinate to it.
The Jurisdiction of the High Court Division
1. The High Court Division has original, appellate and other jurisdictions, powers and
functions as are conferred by the Constitution and other laws-
(a) Original jurisdictions are writ, company, Admiralty matters
(b) The appellate and revisional powers are from the judgments and orders of
the District Judges, Joint District Judges, Sessions Judges etc, Special
Tribunals, Special Judges, Artha Rin Adalats, Dhruta Bichar Tribunals, and
Bankruptcy Courts etc.
(c) Contempt matters.
The law declared by the High Court Division shall be binding on all Courts
Subordinate to it.
Subordinate Courts
Civil Courts
(i) The District Judges.
(ii) The Additional District Judges.
(iii) The Joint District Judges.
(iv) The Assistant Judges.
Criminal Courts
(i) Courts of Session
(a) Session Judges
(b) Additional Session Judges
(c) Assistant Session Judges
Administration of justice in the Subordinate Courts
A. The Assistant Judge - when the valuation of the civil suit,
valued according to the provisions of Suit valuation Act 1887,
is up to Tk.2,00,000/- the plaint is to be presented in that Court
of the local area.
8
B. Senior Assistant Judge – when the valuation is above that
amount and up to 4,00,000 the plaint is to be presented in the
Court of Senior Assistant Judge of the local area.
C. Joint District Judge – when the valuation is above that
amount, the plaint is to be presented in the Court of Joint
District Judge of the local area.
D. Small cause Courts – A small cause Courts have jurisdiction
to dispose of suits for eviction of tenants and realisation of
arrear rents etc. are to be filed in the local area according to the
valuation of the local area vested with small cause power.
E. Family Courts – A plaint under the Family Court Ordinance,
1985 in a matrimonial dispute is to be presented in the Court of
Assistant Judges of the local area.
F. Pre-emption Cases – In application (Suit) for getting any
immovable property by pre-emption of the sale is to be filed in
the Court of Assistant Judges or Joint District Judges of the
respective local areas according to the value of the sale deed.
G. Rent Control Cases – An application for fixation of standard
rent or other reliefs by a tenant in respect of any house/shop is
to be filed in the Court of Assistant Judge of the local area
appointed as Rent Controller.
H. Probate/succession cases – An application for Probate or
Letters of Administration of a will of a deceased person or an
application for Succession Certificate for collection of debts
and securities due to the deceased is to be filed in the Court of
Joint District Judge of the local area vested with the power of
District Delegate. If such proceeding is contested the case is
sent to the District Judge for disposal.
I. Bank loan suits – A suit for recovery of loan of financial
institutions including banks is to be filed in the Court of Joint
District Judges of the local area vested with the power of Artha
Rin Adalat.
J. Bankruptcy suits – A bankruptcy suit is to be filed in the
Court of the District Judge or Additional District Judge of the
local area vested with the power of Deulia Adalat. (Bankruptcy
Court)
Magistracy
Metropolitan Areas
(a)Chief Metropolitan Magistrates
(b)Metropolitan Magistrates
All over the country other than Metropolitan Areas
(a) District Magistrates (Executive)
(b) Chief Judicial Magistrates
9
(c) Additional Chief Judicial Magistrates
(d) Magistrates of the first Class
(e) Magistrates of the Second Class
(f) Magistrates of the Third Class
Power of Criminal Courts
a) Offences under the Penal Code and some other laws are tried by the Courts of
Session, Metropolitan Magistrates in Metropolitan areas and other Magistrates in
whole of Bangladesh other than Metropolitan areas.
b) The offences under the Anti Corruption Act, 1957 and the Criminal Laws
Amendment Act, 1958 are tried by Special Judges appointed under the Criminal laws
Amendment Act, 1958. The Special Judges are also holding trials in respect of
offences under the Anti-Corruption Commission Act, 2004.
c)
Labour Court
This Court has been established to adjudicate disputes regarding employment of
commercial or Industrial disputes. Each Labour Court consists of a chairman and two
members, one is appointed in consultation with the employers and the other in consultation
with the employees. This Court adjudicates industrial disputes, implementation or violation
of settlements complaints made by employers and employees/workers in respect of
retrenchment, Lay off, termination and dismissal from service, non-payment of wages,
compensation disabled in course of service, offences in respect of unfair labour practices,
breach of or failure to implement settlement, illegal strike or lock out and non-compliance of
Labour Court’s order.
Tribunals
d) The offences under the Nari-O-Shishu Nirjatan Daman Ain-2000 are being tried by
Tribunals constituted under the said Ain (Act).
e) The offences under the Ain Shrinkhola Bignakari Aparad (Dhruta Bichar) Ain, 2002
are tried by Dhruta Bichar Adalats.
f) The offences under the Dhruta Bichar Tribunal Ain, 2002 are tried by Dhruta Bichar
Tribunal. (Speedy Tribunal in respect of specific offences)
g) The offences under the Acid Aparad Daman Ain, 2002 are tried by Acid Aparad
Daman Tribunal. These are relating to acid burn cases.
h) The offences under the Special Powers Act, 1974 are tried by the Special Tribunals
constituted under the Act. Offences relating to smuggling, Black Marketing, Arms and
Ammunition etc.
i) Administrative Tribunal – This Tribunal has exclusive jurisdiction to hear and
determine applications made by any person in the service of Government excluding a
person in the defence service and organisations such as Bangladesh Bank etc. in
respect of terms and conditions of his service.
j) Administrative Appellate Tribunal – An appeal lies from the decision of the
Administrative Tribunal consisting of a chairman and two members.
k) Labour Appellate Tribunal – Any person aggrieved by an award of the Labour
Court may prefer an appeal to the appellate tribunal.
l) Taxes Appellate Tribunal
10
1) Any person aggrieved by an order of the Deputy Commissioner of Taxes may
prefer an appeal to the Appellate Joint Commissioner or an order of the Inspecting
Joint Commissioner to the commissioner (Appeal)
2) If an assessee is aggrieved by an order of the Appellate Joint Commissioner or
Commissioner (Appeal), he may prefer an appeal to the Taxes Appellate Tribunal.
L) Customs, Excise and value Added Tax Appellate Tribunal
Any person aggrieved by a decision or order of any officer of Customs, Excise and
VAT may prefer appeal to the commissioner (Appeal)
(i) Any person aggrieved by an order or decision of the commissioner or
commissioner (Appeal) may prefer an appeal to the Customs, Excise and VAT
Appellate Tribunal.
M) Election Tribunals
(a) Election disputes under the Representation of the Peoples Order, 1972 in
respect of the election of Members of Parliament are being adjudicated by the
High Court Division. The election disputes of the Chairmen, Commissioners,
Members of local bodies such as Union Parishads in the rural areas,
Pourashavas in Urban areas, Mayor and Commissioners of City Corporations
are disposed of Election Tribunals appointed by the Election Commission
which is entrusted with the function of organising, holding and conducting the
elections.
N) The International Crimes Tribunal-
This Tribunal was constituted by the Government in exercise of powers under section
6 of the International Crimes (Tribunal) Act, 1973 consisting of a Chairman and two
members. The chairman and one member are Judges of the High Court Division and
another member is a Senior Judicial officer in the rank of a District and Sessions Judge.
This Tribunal was constituted for the purpose of trial of offences mentioned in Section 3,
such as (a) Crimes against Humanity, (b) Crimes against peace, (c) Genocide, (d) war
crimes, (e) Violation of any humanitarian rules applicable in armed conflicts laid down in
the Geneva conventions, 1949, (f) Any other crimes under the International Law.
Mediation in Bangladesh (ADR)
Key Legislative provisions relating to types of mediation of disputes in Bangladesh are as
under:
Status of
Mediation
Relevant Legislation Relevant Sections Key Actors
The Code of Civil Procedure
(Amendment) Act, 2003
Section 89A2 The court itself or a third party
mediator.
Artha Rin Adalat Ain,2003 Sections 21 & 22 The court itself or a third party
mediator
Judicial
or
Formal
The Family Courts Ordinance, 1985 Sections 10(3), 10(4) & 13 The court itself
Village Court Act, 2006 Sections 4, 5, 6 & 7
Conciliation Of Disputes In Municipal
Area, 2004
Sections 3(1); 4 & 7
Local Government
Representatives (Up &
Pouroshova) and respective
representative of each party.
Informal
or
Non-
Formal
Criminal Procedure Code, 1898
[Withdrawal of Complaints in
Section 345 compounding offences
mentioned in the chart.
11
compoundable offences]
Arbitration Act, 2001 Section 22
Code of Civil Procedure, 1908
Sections 89A and 89B of the Code of Civil Procedure, 1908 deals the provision for
mediation. The application for mediation may be submitted by the both parties at any stage
after filing the written statement that they will mediate the dispute. Then the court would
adjourn the proceeding for mediation. The Judge itself can mediate the dispute under this
section. The fee of the mediator shall be fixed by the parties and if the court mediates the
dispute itself, the judge can not claim any fee or charge for it. Within ten days of order for
mediation the both parties will serve notice in writing to the court about the progress of
initiation for mediation and the mediation procedure will have to be completed with in 60
days. If it is not completed with in 60 days another 30 days can be extended. If the mediation
becomes successful, the mediator will draft an agreement on such terms and conditions as the
parties agreed upon. The parties will sign on it and then the lawyers and representatives will
sign as witnesses. This agreement will be submitted in the court and the court will pass a
decree. If the Judge mediates the dispute he will also follow the same procedure as
enumerated above. If the mediation procedure fails the proceedings of the suit will start from
the stage it has been stopped before mediation. If the mediation fails no statement, evidence
or other statements made at the time of mediation can be used at the time of trial of the suit.
Artha Rin Adalat Ain, 2003
Sections 21 and 22 of the Artha Rin Adalat Ain, 2003 provide for Settlement Conference
after the filing of written statement. The Judge may request the parties and their lawyers to
remain present in Court to resolve the dispute. The Judge will convene the meeting and fix up
the venue, procedure and function. The conference shall be in camera. The Judge will explain
the matter in dispute before the parties or representatives identifying their issues in dispute. If
the parties or their representatives agree to resolve the dispute, the parties or their
representatives will sign the agreement and the lawyers and others will sign as witnesses.
Thereafter that the Judge will pass a decree on the basis of the agreement. No appeal or
revision can be filed from the decree passed on the settlement conference.
The Family Court Ordinance, 1985:
When the written statement is filed, the Family Court Shall fix a date ordinarily not
more than thirty days from the date of filing written statement for a pre-trial hearing of the
suit. On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written
statement and documents filed by the parties and shall ascertain the points in issue between
the parties. If no compromise or reconciliation is possible, the Court shall frame the issues in
the suit and fix a date for recording evidence.
Constitution Fifth Amendment Case
By the Martial Law declared on 15th August, the judicial power of reviewing
Proclamations, Martial Law Regulations and Orders and actions taken by the Martial Law
Authority were restricted. The fundamental rights were curtailed. The Constitution was
12
amended by changing its basic features. The secular status of the country was converted into
a fanatic country. One Pak Italian Marble Works Company owns a cinema hall under the
name ‘Moon Cinema’. The Cinema hall was placed under the disposal of Bangladesh
(Freedom Fighters) Welfare Trust in 1971. The Company moved a writ petition against the
taking over of the Cinema hall. The High Court Division directed the Government to release
the Cinema hall. Despite such direction the Government did not release the cinema hall and
maintained that in view of the Martial Law Regulation No.VII of 1977, the judgment of the
High Court Division was not binding upon them and that they were not legally bound to hand
over the possession. Thereafter the owner of the cinema hall moved a writ petition
challenging the "ratification and confirmation" of the Abandoned Properties (Supplementary
Provision) Regulation, 1977, Martial Law Regulation VII of 1977 and Proclamations
Amendment Order, 1977 with regard to insertion of paragraph 3A in the Fourth Schedule of
the Constitution by paragraph 18 therein. The High Court Division by judgment and order
dated 29th August, 2005 declared “all Proclamations, Martial Law Regulations and Martial
Law Orders made during the period from 15th August, 1975 to 9th April, 1979 were illegal,
void and non-est because those were made by persons without lawful authority and the
Constitution was made subordinate and subservient to the Martial Law Proclamations,
Martial Law Regulations and Martial Law Orders by proclamations”.
Some political activists challenged the said judgment in the Appellate Division of the
Supreme Court of Bangladesh. The Appellate Division by judgment and order dated 19th
November, 2009 maintained the judgment of the High Court Division observing that “since
the Constitution is the Supreme law of the land and the Martial Law Proclamations,
Regulations and Orders promulgated by the usurpers being illegal, void and non-est in the
eye of law, could not be ratified and confirmed by the Second Parliament by the Fifth
Amendment, as it itself had no such power to enact such laws as made by the Proclamations”.
Moreover, it is observed, “the Fifth Amendment ratifying and validating Martial Law
Proclamations, Regulations and Orders not only violated the supremacy of the Constitution
but also rule of law and by preventing judicial review of the legislative and administrative
actions, also violated two other more basic features of the Constitution, namely,
independence of judiciary and its power of judicial review”.
Constitution Eight Amendment Case
Another Landmark case is commonly known as Eight Amendment case. A writ
petition was filed in the High Court Division challenging the Constitution (Eight
Amendment) in which the Government amended Article 100 of the Constitution. By this
amendment, six permanent Benches of the High Court Division were created at head quarters
of different districts. One Anowar Hossain challenged the said amendment on the ground that
the said amendment was in violation of provisions of the Constitution. The Appellate
Division declared that the impugned amendment of Article 100 along with consequential
amendment of Article 107 of the Constitution is ultravires the Constitution. It was observed
that the said amendment is ultravires because it has destroyed the essential limb of the
judiciary namely, the Supreme Court of Bangladesh by setting up rival courts to the High
13
Court Division in the name of permanent Benches. This said amendment was also ultravires
to Articles 44, 94, 101, 102 of the Constitution, because
"(1) All powers in the Republic belong to the people-this a concept of sovereignty
of the people. Sovereignty lies with the people not with executive,
legislature or judiciary-all these three are creations of the Constitution
itself.
3) They are exercised on behalf of the people shall be effected only, under, and by
the authority of the Constitution. This is the concept of limited Government based
on theory of separation of powers and then Article 7(2) says significantly that this
Constitution is, as the solemn expression of the will of the people, the supreme
law of the Republic-This is the supreme law not in theory because it says "if any
other law is inconsistent with this Constitution that other law shall, to the extent of
the inconsistency, be void.”
Environmental Protection Litigation
A public interest writ petition was filed in the High Court Division by a Non-
Government Organisation for protection from pollution and also to preserve the original
territories of the rivers flowing in or around the Dhaka City namely Buriganga, Turag, Balu
and Shitalakya. The High Court Division upon hearing made the rule absolute and issued the
following directions upon the concerned Deputy Commissioners of the four districts and also
the Government.
a) to declare the rivers as ecologically critical area.
b) to make a survey of these four rivers delineating the area of encroachment by
encroachers.
c) the walkway and pavement be constructed on the banks of the rivers besides trees
to be planted thereon.
d) all encroachments inside the rivers must be removed by 30th November, 2010.
e) to establish a National River Protection Commission within three months.
2009(XVII) BLT(HCD)455
These directions have been approved by the Appellate Division.
Independence of Judiciary & Rule of Law
Judicial Activism
Indemnity Ordinance Case
After the brutal murder of the father of the nation Bangabandhu Sheikh Mujibor
Rahman and his family members including his youngest son, a child of ten years by some
aberrated army officers on 15th August, 1975 Khandaker Moshtaque Ahmed, who was set up
by the killers declared Martial Law on 20th August, 1975 with retrospective effect from 15th
August, 1975. In the Proclamation amongst others, it was provided in clause (g) that “no
court, including the Supreme Court, or Tribunal or Authority shall have any power to call in
question in any manner whatsoever or declare illegal or void this Proclamation or any Martial
Law Regulation or Order ---------“. Thereafter on 26th September, 1975 Khandaker
Moshtaque Ahmed promulgated the Indemnity Ordinance, 1975 providing therein as under:
14
"Restrictions on the taking of any legal or other proceedings against
persons in respect of certain acts and things.-(1) Notwithstanding anything
contained in any law, including a law relating to any defence service, for the
time being in force, no suit, prosecution or other proceedings, legal or
disciplinary, shall lie, or be taken in, before or by any court, including the
Supreme Court and Court Martial, or other authority against any person,
including a person who is or has, at any time, been subject to any law relating
to any defence service, for or on account of or in respect of any act, matter or
thing done or step taken by such person in connection with, or in preparation
or execution of any plan for, or as necessary step toward, the change of
Government of the People's Republic of Bangladesh and the Proclamation of
Martial Law on the morning of the 15th August, 1975."
This Ordinance was promulgated with a view to save killers of Bangabandhu Sheikh
Mujibor Rahman from prosecution. After the Awami League came in power in 1996, the
Government repealed the Ordinance. One Mohitul Islam, then worked as Assistant of
Bangabandhu Sheikh Mujibor Rahaman thereafter instituted a criminal case against the
persons involved in the carnage being Dhanmondi P.S. Case No.10(10)96 dated 2nd October,
1996. Shahriar Rashid Khan and Syed Faruque Rahman, two accused persons filed writ
petitions in the High Court Division challenging the institution of the case on the ground that
all acts relating to the occurrence of 15 August, 1975 were indemnified by the Indemnity
Ordinance the entire subject matter which has been ratified and validated by Proclamation
Order No.1 of 1977 and the Constitution Fifth Amendment, and thus their prosecution is
without jurisdiction. The High Court Division discharged the rule.
The accused persons thereupon challenged the judgment of the High Court Division
in the Appellate Division of the Supreme Court of Bangladesh. The Appellate Division
upheld the judgment of the High Court Division observing that the effect of repeal of a law is
that as if it never existed and it is obliterated completely from the records of the Parliament
except for the purpose of those actions which were taken under it. That being the position in
law, the Indemnity Ordinance was not in existence after the passing of the Repeal Act.
The accused persons who were involved in the carnage were tried and convicted by
the learned Sessions Judge by the judgment and order dated 8th November, 1998 under
sections 120B and 302/34 of the Penal Code and sentenced 15 of them to death. The High
Court Division maintained the conviction and sentence in respect of 12 accused persons.
Some of the convicts moved the Appellate Division of the Supreme Court of Bangladesh
against the said conviction and sentence and the conviction was upheld by six member Bench
of the Appellate Division by judgment and order dated 19th November, 2009. (ADC.
Vo.VI(A)). The trial was held after 21 years of the incident. In the context of the matter the
Appellate Division observed “The basic elements of a criminal Justice system are an
impartial fact-finding process and a fair and equitable resolution. The ethical and moral duties
of those who work within the system are typically consistent with the concept of Justice. The
criminal Justice system in a country is designed to protect the citizens of the country from the
15
onslaught of criminal activities of a section of people who indulge in such acts. The state as a
guardian of fundamental rights of its citizens is duty bound to ensure the administration of
Justice and the rule of law. It is in the interest of the people that the guilt of the offender who
has indulged in criminal activity is tried as early as possible”.
Another Landmark judgment in the judicial history is the case of Masdar Hossain. In
that case some judicial officers serving in the subordinate judiciary filed a writ petition in the
High Court Division challenging the Bangladesh Civil Service (Reorganization) Order, 1980
purporting to incorporate “judicial service” within the Bangladesh Civil Services as one of
the cadre services as ultravires the Constitution and violative of Articles 27 and 29 of the
Constitution. The matter ultimately went to the Appellate Division and the Appellate
Division in (20 BLD(AD)104) declared as under:
"1) It is declared that the judicial service is a service of the Republic within
the meaning of Article 152(1) of the Constitution, but it is a
functionally and structurally distinct and separate service from the
civil executive and administrative services of the Republic with
which the judicial service cannot be placed on par on any account
and that it cannot be amalgamated, abolished, replaced, mixed up and
tied together with the civil executive and administrative services.
2) It is declared that the word "appointments" in Article 115 means that it
is the President who under Article 115 can create and establish a
judicial service and also a magistracy exercising judicial functions,
make recruitment rules and all pre-appointment rules in that behalf,
make rules regulating their suspension and dismissal but Article 115
does not contain any rule-making authority with regard to other
terms and conditions of service and that Article 133 and Article 136
of the Constitution and the Services (Reorganization and Conditions)
Act, 1975 have no application to the above matters in respect of the
judicial functions.
3) It is declared that the creation of B.C.S. (Judicial) cadre along with
other B.C.S. executive and administrative cadres by Bangladesh
Civil Services (Reorganisation) Order, 1980 with amendment of
1986 is ultra vires the Constitution. It is also declared that
Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable
to the judicial service.
4) The appellant and the other respondents to the writ petition are
directed that necessary steps be taken forthwith for the President to
make Rules under Article 115 to implement its provisions which is a
constitutional mandate and not a mere enabling power. It is directed
that the nomenclature of the judicial service shall follow the
language of the constitution and shall be designated as the Judicial
Service of Bangladesh or Bangladesh Judicial Service. They are
further directed that either by legislation or by framing Rules under
Article 115 or by executive Order having the force of Rules a
16
Judicial Services Commission be established forthwith with majority
of members from the Senior Judiciary of the Supreme Court and the
Subordinate Courts for recruitment to the judicial services on merit
with the objective of achieving equality between men and women in
the recruitment.
5) It is directed that under Article 133 law or rules or executive orders
having the force of Rules relating to posting, promotion, grant of
leave, discipline (except suspension and removal), pay, allowances,
pension (as a matter of rights, not favour) and other terms and
conditions of service, consistent with Article 116 and 116A, as
interpreted by us, be enacted or framed or made separately for the
judicial service and magistrates exercising judicial functions keeping
in view the constitutional status of the said service.
6) The impugned orders in the writ petition dated 28.2.1994 and
2.11.1995 are declared to be ultra vires the Constitution for the
reasons stated in the judgment. The appellant and the other
respondents to the writ petition are directed to establish a separate
Judicial Pay Commission forthwith as a part of the Rules to be
framed under Article 115 to review the pay, allowances and other
privileges of the judicial service which shall convene at stated
intervals to keep the process of review a continued one. The pay etc,
of the judicial service shall follow the recommendations of the
Commission.
7) It is declared that in exercising control and discipline of persons
employed in the judicial service and magistrates exercising judicial
functions under Article 116 the views and opinion of the Supreme
Court shall have primacy over those of the Executive.
8) The essential conditions of judicial independence in Article 116A,
elaborated in the judgment, namely, (1) Security of tenure, (2)
security of salary and other benefits and pension and (3) institutional
independence from the Parliament and the Executive shall be secured
in the law or rules made under Article 133 or in the executive orders
having the force of Rules.
9) It is declared that the executive Government shall not require the
Supreme Court of Bangladesh to seek their approval to incur any
expenditure on any item from the funds allocated to the Supreme
Court in the annual budgets, provided the expenditure incurred falls
within the limit of the sanctioned budgets, as more fully explained in
the body of the judgment. Necessary administrative instructions and
financial delegations to ensure compliance with this direction shall
be issued by the Government to all concerned including the appellant
and other respondents to the writ petition by 31.5.2000.
17
10) It is declared that the members of the judicial service are within the
jurisdiction of the administrative tribunal. The declaration of the
High Court Division to the opposite effect is set aside.
11) The declaration by the High Court Division that for separation of the
subordinate judiciary from the executive no further constitutional
amendment is necessary is set aside. If the Parliament so wishes it
can amend the Constitution to make the separation more meaningful,
pronounced, effective and complete.
12) It is declared that until the Judicial Pay Commission gives its first
recommendation the salary of Judges in the judicial service will
continue to be governed by status quo ante as on 8.1.94 vide
paragraph 3 the Order of the same date and also by the further
directions of the High Court Division in respect of Assistant Judges
and Senior Assistant Judges. If pay increases are effected in respect
of other services of the Republic before the Judicial Pay Commission
gives its first recommendation the members of the judicial service
will get increases in pay etc. commensurate with their special status
in the Constitution and in conformity with the pay etc. that they are
presently receiving."
Judicial Ethics
1. A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF
THE JUDICIARY.
An independent judiciary is indispensable to the justice system in Bangladesh. A
judge should participate in establishing, maintaining, and enforcing high standards
of conduct, and should personally observe those standards, so that the integrity
and independence of the judiciary may be preserved. The provisions of this Code
should be construed and applied to further that objective.
2. A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF
IMPROPRIETY IN ALL ACTIVITIES
A) A judge should respect and comply with the law and should act at all times in
a manner that promotes public confidence in the integrity and impartiality of
the judiciary.
B) A Judge should not allow family, social, or other relationships to influence
judicial conduct or judgment. A judge should not lend the prestige of the
judicial office to advance the private interest of others; nor convey or permit
others to convey the impression that they are in a special position to
influence the judge.
C) A Judge should not hold membership in any organization that practices
invidious discrimination on the basis of race, sex, cast, religion, or place of
birth.
18
3. A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE
IMPARTIALLY AND DILIGENTLY.
The judicial duties of a judge take precedence over all other activities. In performing the
duties prescribed by law, the judge should adhere to the following standards:
(1) A judge should be faithful to and maintain professional competence in the law,
and should not be swayed by partisan interests, public clamor, or fear of
criticism.
(2) A judge should hear and decide matters assigned, unless disqualified, and should
maintain order and decorum in all judicial proceedings.
(3) A judge should be patient, dignified, respectful, and courteous to litigants,
lawyers, and others with whom the judge deals in an official capacity, and
should require similar conduct of those officers to the judge’s control, including
lawyers to the extent consistent with their role in adverserial system.
(4) A judge should accord to every person who is legally interested in a proceeding,
or the person’s lawyer, full right to be heard according to law, and, except as
authorized by law, neither initiate nor consider ex- parte communications on the
merits, or procedures affecting the merits of a pending or impending proceeding.
(5) A judge should dispose promptly the business of the Court including avoiding
inordinate delay in delivering judgments/orders.
(6) A judge should avoid public comment on the merits of a pending or impending
court case.
GENERAL DISQUALIFICATIONS TO HEAR AND MATTER:
(a) The judge shall disqualify himself or herself in a proceeding in which the
judge’s impartiality might reasonably be questioned.
(b) The judge shall disqualify to hear a matter/cause where he severed as lawyer
in the matter in controversy, or a lawyer with whom the judge previously
practiced law served during such association as a lawyer concerning the
matter, or the judge or such lawyer has been a material witness.
(c) The judge knows that, individually or as a fiduciary, the judge or the judge’s
spouse or minor child residing in the judge’s household, has a financial
interest in the subject matter in controversy or in a party to the proceeding, or
any other interest that could be affected substantially by the outcome of the
proceeding.
(d) The judge or the judge’s spouse, or a person related either to the Judge or the
spouse:
i) is a party to the proceeding, or an officer, director, or trustee of a
party;
ii) is acting as a lawyer in the proceeding;
iii) is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding; or
iv) is to the judge’s knowledge likely to be a material witness in the
proceeding.
19
(e) The Judge has served in governmental employment and in such capacity
participated as counsel, advisor, or material witness concerning the
proceeding or has expressed an opinion concerning the merits of the particular
case in controversy.
4. A judge must not enter into public debate or express his views in public on
political matters or on matters that are pending or are likely to arise for judicial
determination before him.
5. A judge is expected to let his judgments speak for themselves. He will not give
interviews to the media.
6. A judge will not accept gifts or hospitality except from his family, close relatives
and friends.
7. A judge should not engage directly or indirectly in trade or business, either by
himself or in association with any other person. (Publication of legal treatise or
any activity in the nature of a hobby will not be construed as trade or business).
8. A judge should not ask for, accept contributions or otherwise actively associate
himself with the raising of any fund.
9. Every judge must at all times be conscious that he is under the public gaze and
there should be no act or omission by him which is unbecoming of his office.
10. A judge shall disclose his assets and liabilities if, asked for, by the Chief Justice.
Judicial Development Programme
The Judicial Development Programme in Bangladesh is a multi-lateral project to build the
capacity of Judges and Magistrates. This programme has a very significant training focus as
under:
a) It has undertaken training for Judges of the Subordinate Courts and Magistrates.
b) It has supported the development and strengthening of a system of national
coordination for judicial training.
c) It has been conducting training on Court rules, Procedures and a range of technical
specialties, including juvenile Justice and Court practice.
d) It has developed a monitoring and evaluating strategy to evaluate the impact and
effectiveness of project activities and training within the participating judiciaries.
Conclusion
To Summarise, the essential requirements for the efficient and expeditious
administration of justice are now well known:
(1) A Court must monitor and manage both its caseload and individual cases.
(2) Management cannot be successful without judicial leadership and commitment.
(3) Procedures must be clearly established in legislation, Court rules and written
practices.
(4) Cases must be brought under Court management soon after their commencement.
(5) Different kinds of cases require different kinds of management.
(6) The degree and intensity of management must be proportionate to what is in dispute
and to the complexity of the matter.
(7) The number of Court appearances must be minimised.
20
(8) Realistic but expeditious timetables must be set and unless there is good reason, must
be adhered to.
(9) A key objective is to identify the issues really in dispute early in the proceedings.
(10) Trial dates must be established as soon as practicable and must be definite, so as to
ensure compliance with timetables.
(11) Alternative dispute resolution should be encouraged and sometimes mandated.
(12) Monitoring of the caseload must provide timely and comprehensive information to
judges and Court officers involved in management. Time standards may be useful in
focusing the attention of all those involved.
(13) Communication and consultation within the Court and with others involved in the
litigation process is an ongoing process.
Of all the requirements, one is overriding. Unless there is judicial commitment to the
process, it will not work.
Thanking you all and wish you all a happy life and sound health.
Dated
12th September, 2010 (Justice S.K.Sinha)
Appellate Division
Supreme Court of Bangladesh.
