After reading this article you will be able to
know,
- History of judiciary,
- Organizational structure of judiciary,
- Court structure,
- Appointment of judges,
- Jurisdiction of court,
- Jurisdiction of SUPREME COURT,
- Jurisdiction of HIGH COURT,
- Jurisdiction of Appellate division, Subordinate courts,
- Executive control over judiciary and Corruption
Before proceed please learn about the Government System in Bangladesh.
The judicial division is one of the three divisions of the government. The importance of a neutral judicial division is immense to ensure basic rights of the citizens, justice, punishment of the criminal and to protect the weak from the torture of the strong. The judicial division confirms the practice of law and protects the constitution of the country.
HISTORY
• Evolved as
a result of gradual process during the different period of Indian history.
• Legal
history of Bangladesh can be divided under four important periods, i.e., Hindu
period, Muslim period, British period and after independence.
• After independence of Bangladesh in 1971 the Acting President promulgated the Laws Continuance Enforcement Order, 1971 by which all laws that were in force in Bangladesh on 25th March, 1971 continued to be so in force. At present we have about 740 Acts, 507 Ordinances and some Regulations in Bangladesh.
Organizational Structure of the Judicial Division
The judicial division of Bangladesh comprises the Supreme court,
Lower court and the Administrative tribunal.
• Part
VI of the Bangladesh Constitution deals with the provisions of Bangladesh
Judiciary. Chapter I under Part VI deals with the detailed provisions of the
Supreme Court (which includes Article 94-113), Chapter II deals the detail
provisions of Subordinate Court (which includes Articles 114-116A) and Chapter
III deals with Administrative Tribunal (Article 117).
• After
independence, the first highest court in Bangladesh was the High Court
established under Section 2 of the High Court of Bangladesh Order 1972
promulgated pursuant to the Proclamation of Independence 1971 and the
Provisional Constitution of Bangladesh Order 1972.
COURT STRUCTURE
APPOINTMENT OF JUDGES
There is total 6 judges at present in appellate division & 97 judges in the high court division. The present chief justice is Syed Mahmud Hossain.
Supreme Court
The highest court of the judicial division is the Supreme Court.
The Supreme Court is the highest court of Bangladesh. Article 94(1) of the constitution provides that there shall be a Supreme Court for Bangladesh comprising two division – Appellate Division and High Court
Division. The Supreme Court is headed by a justice known as the Chief Justice
of the country. President appoints him upon advice of the prime minister.
Supreme Court is formed with the required number of justices for each
department. President appoints the judges of the two divisions consulting the
Chief Justice. The Chief Justice and other Justices are fully independent to
perform their judicial activities. A person must be a citizen of Bangladesh to
become the judge of the Supreme Court; he must have an experience of ten years
of working as an advocate at the Supreme Court or in the judiciary position of
Bangladesh for at least ten years. The judges at the Supreme Court can work up
to the age of 67 years.
• The Chief Justice and the Judges appointed to the AD shall sit only in the division, and the other Judges shall sit only in the HCD (Article 94(3) of COB). The number of judges in the AD was five until early 2002. Later, Government had recruited two more judges in the AD through a gazette notification on 17 January 2002.
Work: Discuss the structure of the Supreme Court
Power and Functions of the Supreme Court
The appellate division and the high court division have their
own work periphery.
Supreme Court is formed with functions of these two courts. These are discussed below:
Power and Functions of the Appellate Division:
• Appellate division can arrange for hearing against the
decision, decree or conviction of the high court.
• Appellate division advises the president if he wants
explanation of any law.
• It can order someone to be present before the court or present
documents to the court to ensure justice.
• Any law declared by the appellate division must be followed by the high court division. In this way the appellate division plays a very important role in explaining the law, preserving justice and advising the president.
Power and Functions of the High Court Division
• Can impose ban to protect the basic rights of the citizens.
• Can restrain a person from doing harmful activities and can
declare this type of work as illegal.
• Can solve a case from the high court division if complexity
arises in the lower court because of the explanation of the constitution.
• Accepts appeal against the judgment of the lower courts.
• Provides the job description of lower courts and operates
them.
Supreme Court with its high court and appellate division works
as the highest court of the country and protects the constitution and basic
rights of the citizens and ensures justice.
Work: Compare the activities of Appellate division and High court division.
Lower Court: There is a lower court of judicial division in every district under the Supreme Court. They operate the Criminal and Civil cases.
District Judge Court: District Judge is the head of the district court. The additional district judges and sub-judges assist him in his activities. This court deals with civil cases (land, loan agreement, etc) and criminal cases (fight, quarrels, etc.) at the district level.
Sub-judge Court and Assistant Judge Court: There is Sub Judge Court and Assistant Judge Court in every district under the District Judge Court. These courts help the Judge Court in operation of the cases. Besides, they also operate cases by themselves.
Village Court: Village court is the lowest
segment of the judicial system of Bangladesh. It is situated at the Union
council level. Five members including the chairman of the Union council and two
members each from the concerned parties of the case form this court. Those
cases which can be solved at local level are resolved in this court. The
criminal cases at a smaller scale are also resolved in this court.
JURISDICTION OF COURT
HIGH COURT
According to Article 101, there are two sources of power and jurisdiction of HCD(B) Constitutional jurisdiction
• original jurisdiction
• appellate jurisdiction
• revisional jurisdiction
• reference jurisdiction.
ORDINARY JURISDICTION OF THE HCD
• Original jurisdiction means that jurisdiction whereby HCD can take a case or suit as a court of first instance.• Any law may confer on the HCD appellate jurisdiction on any matter
• Revisional jurisdiction of HCD means the power whereby it check the decisions of its inferior courts.
• Reference jurisdiction means the power whereby the HCD can give opinion and order on a case referred to it by any subordinate court.
CONSTITUTIONAL JURISDICTION OF THE HCD
The constitution itself has conferred on the HCD the following three types of jurisdictions:(1) writ jurisdiction
(2) jurisdictional as to superintendence and control over courts
(3) jurisdiction as to transfer of cases.
Writ jurisdiction means the power of jurisdiction of the HCD under the provisions of the constitution whereby it can enforce fundamental rights as guaranteed in Judicial system of Bangladesh 17 Part III of the constitution and can also exercise its power of judicial review.
JURISDICTION OF THE APPELLATE DIV
The AD of the Supreme Court has no original jurisdiction. The source of jurisdiction of the AD is also two like as the HCD-(1) the constitution
(2) ordinary law
A. appellate jurisdiction
B. jurisdiction as to issue and execution of process
C. jurisdiction as to review
D. advisory jurisdiction
APPELLATE JURISDICTION
The appellate jurisdiction of the AD applies only against the judgment, decree, order or sentence of the HCD as enumerated in Article 103 of the constitution. This constitutional appellate jurisdiction has two magnitudes (Halim, 2008, p. 89):(1) cases where appeal lies as of right
(2) cases where appeal can be made if the AD grants leave to appeal
(1) where the HCD certifies that the cases involves a substantial questions of law as to the interpretation of the constitution
(2) where the HCD sentences a person to death or imprisonment for life
(3) where the HCD punishes a person for its contempt.
SUBORDINATE COURTS
Under the HCD of the Supreme Court, there is a set of subordinate courts and tribunals having civil, criminal or special jurisdiction. This lower judiciary is the base and foundation of the judiciary.The subordinate courts in Bangladesh can be divided in two broad categories namely:
1) civil
2) criminal courts.
• The subordinate judiciary is separated from the executive by the historical and heroic verdict of “Masder Hossain Case” through amending the Criminal Procedure Code 1898 in November 2007. However, it is to be noted that the Mobile Court Ordinance 2007 has given some judicial powers to the executive magistrates.
ORDINARY COURTS OF CIVIL JURISDICTION
The civil court system is more popularly known as the subordinate judiciary. 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 are:(1) Court of District Judge
(2) Court of Additional District Judge
(3) Court of Joint District Judge
(4) Court of Senior Assistant Judge
(5) Court of Assistant Judge.
ORDINARY COURTS OF CRIMINAL JURISDICTION
• The legal basis of the ordinary criminal courts is the Code of Criminal Procedure 1898. The subordinate courts of criminal jurisdiction are classified as:• Courts of Session Judge
• Court of Additional Session Judge
• Court of Joint Session Judge
• Court of Chief Metropolitan Magistrates (CMM)
• Court of Additional CMM
• Court of Magistrates of the First Class
• Court of Magistrates of the Second Class
• Court of Magistrate of the Third Class
EXECUTIVE CONTROL OVER THE JUDICIARY
• The executive branch of the government exercises control over the judiciary especially subordinate criminal judiciary. In order to try criminal cases magistrates exercising judicial functions are appointed from among public servants employed in executive positions. In fact, they are petty administrators-cum-judges. The Deputy Commissioner will also hold the position of District Magistrate, who is in turn the boss of the Additional District Magistrate.• 16th Amendment of constitution to impeach supreme court judges by the parliament is example of executive control.
CORRUPTION
• Transparency International in its “Global Corruption Report 2007” disclosed that Bangladesh failed to ensure full independence of the judiciary and the politicization of the judiciary is one of the major reasons behind judicial corruption. According to this report, “Two thirds of the people who used a court in 2004 paid bribes, with the typical bribe amounting to 25 percent of average annual income.”• Former Chief Justice Mahmudul Amin Chowdhury said corruption has taken a turn into “blood cancer” and it would not be eradicated if nepotism, favouritism are not stopped (The Daily Star, 2007, 25 May).
CONCLUSION
SOURCES
• http://www.judiciary.org.bd/en/judiciary• Percieved tension between judiciary & executive of Bangladesh: the Daily star 09 may,2017:M Rafiqul Islam
• Bdlawdigest.org
• The judicial system of Bangladesh: an overview from historical viewpoint by Pronob pandey & Awal Hossain mollah (International journal of law & management ,February 2011)
• (The) Daily Star (2007), “Politicisation major reason for judicial graft in Bangladesh in TI Global Corruption Report”, The Daily Star, Vol. 05 No. 1059, available at: www.thedailystar.net/2007/05/25/d70525011912.htm