History of judiciary

The present legal and judicial system of Bangladesh owes its origin mainly to two hundred years British rule in the Indian Sub-Continent although some elements of it are remnants of Pre-British period tracing back to Hindu and Muslim administration. It passed through various stages and has been gradually developed as a continuous historical process. The process of evolution has been partly indigenous and partly foreign and the legal system of the present day emanates from a mixed system which has structure, legal principles and concepts modeled on both Indo-Munhall and English law. The Indian sub-continent has a known history of over five hundred years with Hindu and Muslim periods which proceeded the British period, and each of these early periods had a distinctive legal system of its own. The Hindu period extends for nearly 1500 years before and after the beginning of the Christian era. The ancient India was divided into several independent states and the king was the Supreme authority of each state. So far as the administration of justice was concerned, the king was considered to be the fountain of justice and was entrusted with the Supreme authority of administration of justice in his kingdom. The Muslim period starts with the invasion of the Muslim rulers in the Indian subcontinent in 1100 A.D. The Hindu Kingdoms began to disintegrate gradually with the invasion of Muslim rulers at the end of eleventh and at the beginning of twelfth century. When the Muslims conquered all the states, they brought with them the theory based o n the Holy Quran, their religious book. According to the Holy Quran, sovereignty lies in the hand of Almighty Allah and the king is His humble servant to carry out His will on the earth. The ruler was Almighty's chosen agent and trustee. The modernization of ancient Indian legal and judicial system took place in the hand of the British people who came here as being trading company under a series of Royal Charters. East India Company gradually established control and possession over Bombay, Madras and Calcutta which were later on known as Presidency Towns. Ultimately the Company participated in administration of justice in cooperation with the local authorities. The Charter of 1726 issued by King George-I, by way of granting Letters Patent to the Company, was the first gateway to introduce English legal and judicial system in India. Later on, Charter of 1753 was issued by King George-II with a view to remove the defects of the Charter of 1726. To improve the system, the secret committee of House of Commons intervened, and passed the Regulation Act, 1773 under which the King issued a separate Charter of 1774 establishing the Supreme Court of judicature at Calcutta. Subsequently, Supreme Courts were established in Madras in 1801 and in Bombay in 1824. In 1853, the first Law Commission was established in India and an all India legislature was created whose laws were to be binding on all Courts. East India Company was dissolved and the Government of India was taken over by the British Crown in 1858, following the event of mutiny in 1857. The Civil Procedure Code, Criminal Procedure Code, Penal Code, Evidence Act, etc. were enacted and with this common legal fabric, the British Parliament in 1861 enacted Indian High Courts Act which provided for the establishment of High Courts in three Presidency Towns
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(Calcutta, Bombay & Madras) replacing the Supreme Court. After the establishment of High Courts a regular hierarchy of Civil and Criminal Courts were established by Civil Courts Act, 1887 and Criminal Procedure Code, 1898 respectively. The present system of Civil and Criminal Court, in Indian sub-Continent has their legal basis by virtue of these Civil Courts Act, 1887 and Criminal Procedure Code, 1898 respectively. The British Parliament declared India & Pakistan as independent dominions on 15 August, 1947 by the Indian Independence Act, 1947. This Act also provide that until the new Constitutions were framed for independent India & Pakistan, the Government of these two countries were to run by the Government of India Act, 1935. Judicial structure mostly remained the same as it was before 1947. The Government of India Act.1935 changed the structure of the Government from unitary to that of federal type. Accordingly, in both India and Pakistan Federal Court was retained to function until new constitutions were framed. Pakistan constituent Assembly passed the privy council (Abolition of Jurisdiction) Act, 1950 which abolished the system of appeal to the Privy Council from the Federal Court of Pakistan. The Federal Court appeared as the highest Court in Pakistan till 1956, when the High courts in the provinces and the Supreme Court of Pakistan in the centre were established under the new Constitution. In Pakistan, the constitution of 1956 was abrogated in 1958 and another one was introduced in 1962, but the whole judicial structure remained all the same. After liberation in 1971, Bangladesh adopted its Constitution in 1972, which provides the structure and functioning of the Supreme Court comprising with the High Court Division and the Appellate Division. Needless to say that in Bangladesh the sub-ordinate judiciary both in Civil and Criminal side originated from Civil Court Act, 1887 and Criminal Procedure Code, 1898. Apart from this, in Bangladesh there are some other special laws providing for the basis of some special courts, such as labor court, Juvenile Court, Administrative tribunal etc.

Bangladesh Table of Contents

The government operates courts in the regions, districts, and sub districts that make up the local administrative system. The judges in these courts are appointed by the president through the Ministry of Law and Justice or the Ministry of Home Affairs. Most cases heard by the court system originate at the district level, although the newer sub district courts experienced an increased caseload in the late 1980s. Upon appeal, cases may go up to the Supreme Court, but litigation may be very slow; in 1987 there were 29 Supreme Court judges dealing with 21,600 pending cases. The Supreme Court, as of June 1988, had permanent benches--called the High Court Division-- in Dhaka, Comilla, Rangpur, Barisal, Sylhet, Chittagong, and Jessore. It hears appeals from district courts and may also judge original cases. The Appellate Division of the Supreme Court in Dhaka reviews appeals of judgment by the High Court Division. The judges of both divisions are appointed by the president.

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At the grass-roots level, the judicial system begins with village courts. An aggrieved party may make an official petition, which requires a fee, to the chairman of the union council (the administrative division above the village), who may call a session of the village court with himself as chairman and two other judges nominated by each of the parties to the dispute. The parties may question the impartiality of the chairman and have him replaced. The majority of cases end at the village court level, which is inexpensive and which hands down judgments that reflect local opinion and power alignments. There are occasions, however, when the union council chairman may reject an official petition to constitute a village court or when one party desires a higher opinion. In these cases, the dispute goes to a government court at the sub district level. Cases may wind their way up from district courts to permanent benches of the High Court Division. Once cases leave the village courts, they become expensive affairs that may last for years, and few citizens have the financial resources to fund a lengthy court battle. Rapid political changes in independent Bangladesh have compromised the court system. The Constitution originally stated that the president could remove members of the Supreme Court only if two-thirds of Parliament approved, but the Proclamation (Amendment) Order of 1977 included a clause that eliminated the need for parliamentary involvement. The clause set up the Supreme Judicial Council, consisting of the chief justice and the next two senior judges. The council may determine that a judge is not "capable of properly performing the functions of his office" or is "guilty of gross misconduct." On their advice, the president may remove any judge. In addition, executive action has completely eliminated judicial authority for long periods. For example, under martial law regulations enacted in 1982, the Supreme Court lost jurisdiction over the protection of fundamental rights, and all courts operated under provisions of law promulgated by the chief martial law administrator; special and summary martial law courts handed down judgments that were not subject to review by the Supreme Court or any other court. Furthermore, the Fifth Amendment and the Seventh Amendment placed martial law proclamations and judgments outside the review of the court system. In these ways, the courts have been forced to serve the interests of the ruling regime, rather than standing as an independent branch of government.

The Judiciary in Bangladesh Supreme Court

According to the Article 94 of the constitution of the Peoples Republic of Bangladesh Supreme Court of Bangladesh is the highest judiciary of Bangladesh which has two divisions; namely- Appellate Division and High Court Division. Subordinate Judiciary: There are two types of subordinate courts in BangladeshCivil and Criminal.

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Civil Courts: The tiers of subordinate civil courts are as follows: Court of District Judge Court of Additional District Judge Court of Joint District Judge Court of Senior Assistant Judge Court of Assistant Judge Criminal Courts: Subordinate criminal courts are as follows: Courts of Session Court of Sessions Judge Court of Additional Sessions Judge Court of Joint Sessions Judge Courts of Magistrate Court of Chief Judicial Magistrate/ Chief Metropolitan Magistrate Court of Additional Chief Judicial Magistrate/ Additional Chief Metropolitan Magistrate Court of Magistrate of the First Class/ Metropolitan Magistrate Court of Magistrate of the Second Class Court of Magistrate of the Third Class

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Besides these courts, there are some other courts created under special laws which are as follows: 1. 2. 3. 4. 5. 6. 7. 8. 9. Nari-O-Shishu Nirjatan Daman Adalat Special Judge Court Druto Bichar Tribunal Special Tribunal Administrative Tribunal Artha Rin Adalat Environment Court Family Court Village Court

The Judiciary of Bangladesh

The Judiciary of Bangladesh consists of a Supreme Court, subordinate courts and tribunals. ===The Supreme Court=== The Supreme Court of Bangladesh comprises the Appellate Division and the High Court Division. It is the apex Court of the country and other Courts and Tribunals are subordinate to it. The Appellate Division The Appellate Division shall have Jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division. It has rule making power for regulating the practice and procedure of each division and of any Court subordinate to it. Chancery Research and Consultants Trust (CRC-Trust) maintains a website Chancery Law Chronicles-First ever Online Database of Bangladesh Laws where it has already included 4500 judgments of the Appellate Division and High Court Division of the Supreme Court of Bangladesh from 1972 to till date. The High Court Division The High Court Division, though a Division of the Supreme Court, is for all practical purposes, an independent court with its powers, functions and jurisdictions well defined and determined under the Constitution and different laws. It has both appellate as well as original jurisdiction. It hears appeals from orders, decrees and judgments of subordinate courts and tribunals. It has original jurisdiction to hear Writ Applications under article 102 of the Constitution, which is known as extra ordinary constitutional jurisdiction. It has further original jurisdiction, inter alia, in respect of company and admiralty matters under statutes. The High Court Division, in special circumstances, has also powers and jurisdiction to hear and dispose of cases as the court of first instance under article 101 of the Constitution. The High Court Division shall have Superintendence and control over all Courts and tribunals subordinate to it.

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The Subordinate Courts and Tribunals There are a wide variety of subordinate courts and tribunals. Such courts and tribunals are created by some relevant statutes. All their powers, functions and jurisdictions are well determined by the respective statutes. These are the basic courts in the system of the judiciary of Bangladesh. The major bulk of the cases, both civil and criminal, are tried and heard in such courts and tribunals. Certain tribunals are termed as administrative tribunals, Nari-o-Shishu Nirjato Daman Tribunals, Special Tribunals etc. Such courts and tribunals spread all over the country at district levels. The subordinate courts in Bangladesh can be divided in two broad classes, namely, civil courts and criminal courts. Civil Courts The civil courts are created under the Civil Courts Act of 1887. The Act provides for five tiers of civil courts in a district, which bottom-up are:

Court of Assistant Judge, Court of Senior Assistant Judge, Court of Joint District Judge, Court of Additional District Judge and Court of District Judge.

The first three are courts of first instances with powers, functions and jurisdictions in respect of subject matter, territory and pecuniary value determined by or under statutes. The rest two are generally courts of appeal in civil matters. Now the civil suits are rapidly disclose in the court: Criminal Courts

Courts of Sessions Courts of Metropolitan Sessions Special courts/tribunals (Criminal) Courts of Metropolitan Magistrate Courts of Magistrate Legal profession

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