The Constitutional Law of Bangladesh

Online class
Lecture-03

CHAPTER 27
THE SUPREME COURT AND SUBORDINATE
COURTS
27.1. Introduction
The Constitution of Bangladesh is primarily based on the theory of
separation of Power. Part IV of the Constitution has laid down the
provisions regarding the executive branch of the Government headed
by the Prime Minister. Part V has laid down the provisions regarding
the legislature. It is followed by Part VI laying down provisions
regarding the judiciary headed by the Supreme Court.
Executive power is vested in the Prime Minister and his Cabinet
and Legislative Power in the Parliament. Though there is no express
mention of it in the Constitution, the Appellate Division held in
Mujibur Rahman v. Bangladesh 44 DLR (AD) 111 that the judicial
power vests in the Judiciary. Referring to Paragraph 6 in Fourth
Schedule of the Constitution Mustafa Kamal J. held:
Although the Constitution itself omitted to confer judicial power
on the Supreme Court and the subordinate courts by any express
provision, there can be no doubt whatsoever that the Supreme
Court and the Subordinate Courts are the repository of judicial
power of the State.
27.2. Evolution of the Judiciary
The present legal and judicial system of Bangladesh owes its origin
mainly to the two hundred years' British rule in the Indian Sub-
Continent although some elements of it are remnants of Pre-British
Hindu and Muslim administration. It passed through various stages and has been
gradually developed in a continuOus historical procese
The Charter of 1727. issued by King George-1, granting Letters
Patent to the Company, was the first gateway to introduce Enplich
legal and judicial system in India. Later on, Charter of 1753 was
issued by King Gcorge-II with a view to remove the defects of the
Charter of 1726. To further improve the system the Regulation Act
1773 was passed under which the King 15sucd a separate Charter in
Calcutta.
1774 establishing the Supreme Court ol judicature at Calcutta
Subsequently, Supreme Courts were established in Madras in 1801
and in Bombay in 1824.
The British Parliament in 1861 enacted Indian High Courts Act
which provided for the establishment of High Courts in three
Presidency Towns (Calcutta, Bombay &Madras) replacing the
Supreme Court.
After the establishment of High Courtsa regular hierarchy of
Civil and Criminal Courts were established by Civil Courts Act,
1887 and Criminal Procedure Code, 1898 respectively. The present
system, the Civil and Criminal Courts in Bangladesh have their legal
basis in the Civil Courts Act, 1887 and Criminal Procedure Code,
1898 as amended up-to-date.
The British Parliament declared India and Pakistan as
independent dominions on 15 August, 1947 by the Indian
Independence Act, 1947. This Act also provided that until the new
Constitutions were framed for independent India and Pakistan, the
Government of these two countries were to run by the Government
of India Act, 1935. 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 Hign
Courts in the provinces and the Supreme Court of Pakistan in the
centre were established under the new Constitution.
The Constitution of 1956 was abrogated in 1958 and another one
was introduced in 1962, but the whole iudicial structure remained al
the same. After liberation in 1971, Bangladesh adopted the structurc
and functioning of the Supreme Court comprising the High Court
Division and the Appellate Division. The sub-ordinate judiciary both
in Civil and Criminal side originated from Civil Court Act, 1887 and
Criminal Procedure Code, 1898. The Civil Courts Act 1887 has
undergone changes in 2007 in fulfillment of the Masder Hossain
verdict. Apart from this, there are some other special laws providing
for the basis of some special courts, such as Labour Court, Juvenile
Court, Administrative Tribunal etc.
27.3. The Supreme Court of Bangladesh
Part VI of the Constitution of the People's Republic of Bangladesh
contains three Chapters. Chapter I deals with the Supreme Court
comprising the High Court Division and Appellate Division. Chapter
II deals with the Subordinate Courts. Chapter III provides for the
establishment of one or more Administrative Tribunals.
Composition of the Supreme Court The Supreme Court of
Bangladesh comprises the High Court Division and the Appellate
Division. The number of the Judges in both the Division is not
fixed. But the Supreme Court must always have a Chief Justice The
number of the Judges is fixed by the President upon 'advice of the
Prime Minster.
As per Article 107 of the Constitution, the Supreme Court is
empowered to regulate its Constitution and procedure. The Supreme
Court make rules for regulating the practice and procedure of each
division of it and of any other court subordinate to it." Constitution of
Benches of the Supreme Court is absolutely within the domain of the
Chief Justice." No authority in the State has a say in the constitution
or reconstitution of Benches which absolutely depends on the
personal judgment of the Chief Justice.
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27.3.1. The Supreme Court means Full Court
Article 1 16 of the Constitution provides that the control (including
tne power of posting, promotion and grant of leave) and discipline of
persons employed in the judicial service and magistrates exercising
judicial functions shall vest in the President and those shall be
exercised by him in consultation with the Supreme Court.
 The Honorable Chief Justice of Bangladesh is a person designate
and the term Supreme Court of Bangladesh shall always include the
Honorable Chief Justice of Bangladesh and all other Judges to
constitute the Full Court. As per Article 94(1) of the Constitution, the
Supreme Court consists of the Appellate Division and High Court
Division and therefore the opinion of the SCmeans the opinion of
the Judges of the High Court Division and Appellate Division.
Sontosh Kumar Shaha v. Bangladesh 14 MLR (HCD) 373
With a purported consent from the Chiet Justice, disciplinary
proceeding against the petitioner, a Judge, on the charge of
corruption was initiated under the Government Servants (Discipline
and Appeal) Rules 1985. Neither the General Administration
Committee (GA Committee) nor the Full Court of the Supreme
Court was consulted before initiating the proceeding. It only got a
nod from the Chief Justice. Barrister Moinul Hossain appearing on
behalf of the petitioner argued that approval of the Chief Justice was
not sufficient as the Supreme Court under Article l16 means the Full
Court as per Rule 3 of the High Court Division Rules." The Court
accepted the argument to hold:
The Supreme Court of Bangladesh means the combination of
Judges of the institution with the honorable Chief Justice of
Bangladesh as enunciated in Article 94(2) of the Constitution
and therefore the exercise of power under Article T16 of the
constitution requires the approval of the all the judges of the
Supreme Court in its meeting, known as Full Court meeting
However, since the supervisory authority upon the subordinate
judiciary is vested in the High Court Division, in this case the
Full Court means all the Judges of the High Court Division
along with the Chief Justice.
27.3.2. Unitary Character of the Supreme Court
Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1
Sontosh Kumar Shaha v. Government of Bangladesh 14 MLR 373, Para 37
The GA Committee is composed of the Chief Justice and three other Judges as
the Chief Justice may appoint. It recommends the appointments. promotion
degradation or suspensaion of Joint District Judges. Senior Asistant Judges anu
Asistant Judges and all such recommendations are to be palced before the u
Court comprising all the Judges of the Supreme court (Rules I and 3 of the High
Court Division Rules)
The Original Article 100 of the Constitution was as followS:
The permanent seat of the Supreme Court shall be in the capital,
but sessions of the High Court Division may be held at such other
place or places as the Chief Justice may, with the approval of the
President, from time to time appoint.
This Article 100 of the Constitution was amended by the
Constitution (8 Amendment) Act to the following effect:
100. Seat of Supreme Court
(1) Subject to this article, the permanent seat of the Supreme Court
shall be in the capital.
(2) The High Court Division and the Judges thereof shall sit at the
permanent seat of the Supreme Court and at the seats of its
permanent benches.
(3) The High Court Division shall have a permanent bench n
Barishal, Chittagong, Comilla, Jessore, Rangpur and Sylhet,
and each permanent bench shall have such Benches as the
Chief Justice may from time to time determine.
(4) A permanent bench shall consist of such number of judges of
the High Court Division as the Chief Justice may deem it
necessary to nominate to that Bench from time to time and on
Such nomination the Judges shall be deemed to have been
transferred to that Bench.
(5) The President shall, in consultation with the Chief Justice,
assign the area in relation to which each permanent bench shall
have jurisdictions, powers and functions conferred or that may
be conferred on the High Court Division by this constitution or
any other law; and the area not so assigned shall be the area in
relation to which the High Court Division sitting at the
permanent seat of the Supreme court shall have such
jurisdictions, powers and functions.
(6) The Chief Justice shall make rules to provide for all incidental.
supplemental or consequential matters relating to the permanent
Benches.
In Anwar Hossain Chowdhury v. Bangladesh 19 BLD (Spl) 1 this
amendment in Article 100 was challenged. On the question whether
the amendment of Article 100 affected the basic structure of the
Constitution, three learmed judges found that the High Court Division
with plenary judicial power over the entire Republic was a basic
structure of the Constitution and the amendment having destroyed
the plenary judicial power of the HCD altered the basic structure of
the Constitution and was, therefore, void. In words of BH
Chowdhury J. such permanent Benches of the High Court Division with
mutually exclusive jurisdiction is entirely outside the
the contemplation of the Constitution:
The Amended sub Article (5) has disrupted structural balance that
was carefully erected in Part VI of the constitution..
Sub-article (5) has clearly destroyed the structural pillar of the
Constitution as given in Article 94 and thus has violated the
mandate of the constitution and further brought itself within the
mischief of the provisions of Article 7(2)."
Shahbuddin Ahmed J. remarked that due to the amendment the
original High Court Division lost its existence and a complete new
version of it arose:
The High court Division as an integral part of the Supreme Court
has lost its original character as well as most of its territorial
jurisdiction. Seven judicial bodies, by whatever name they are
called, Benches or courts, are, to all intents and purposes,
independent courts having no relation with each other except a link
through the Chief Justice... The High Court Division, as
contemplated in the unamended Article is no longer in existence
and as such the Supreme Court, one of the basic structures of the
constitution, has been badly damaged, if not destroyed altogether.
It is submitted that the decision of the majority in Anwar Hossain
Chowdhury was based on an erroneous illusion of basic structure.
The main impetus of the majority opinion was on the integrity and
singleness of the High Court Division with its plenary jurisdiction
over the entire Republic. To the Honorable Judges, it was a basic
structure of the Constitution that the High Court Division should
remain in the capital with no territorial jurisdictional limit. In fact,
such an argument is hard to consume.
If the overall objective of the Constitution is ensuring justice for
the people, then decentralization of the Higher Judiciary was
definitely a positive step towards that direction. By the impugned
amendment the Judges lost none of their status, security of tenure,
institutional and functional independence etc. In no sense the
independence of Judiciary, the ultimate basic structure, was
hampered. The Judges lost nothing except their stay in Dhaka." The transfer of
Judges was still the sole privilege of the Chief Justice
without any scope of interference from the Executive. This was the
same power which the Chief Justice now exercises in relation to the
constitution, reconstitution and determination of jurisdiction of
different Benches of the High Court Division
When the original Article 100 accepts the scope of holding
sessions of the High Court Division at other place or places, t
cannot be claimed that the framers of the Constitution did not think
of the necessity of decentralization. The 8 Amend ment was a mere
institutionalization of that aim.
However, ATM Afzal J. stood in marked contrast with the other
judges. In his dissenting opinion, coming to the conclusion that the
amendment did not impair the integrity of the High Court Division.
ATM Afzal J. commented:
The entire argument on behalf of the appellants rests on
assumption....... that by assigning the areas to the permanent
benches and leaving the residue to the High Court Division sitting
at the permanent seat, the jurisdiction of the Judges on those
Benches have been limited to the areas thus assigned (territorially
limited) and as such they have ceased to be Judges of the High
Court Division exercising plenary power through out the Republic
as envisaged under the Constitution. If this asumption is correct. I
shall havee no hesitation to accept the argument elaborated for days
together that High Court Division, a structural pillar of the
Constitution, has ceased to exist.
It is clear that in matters of exercise of judicial power, the High
Court Division has been treated separately in the Constitution and
the impugned amendment is but only an extension of such
treatment. What is important to remember is that no other Article
of Chapter I has been amended (except 107(3) which is
consequential). Hence it must be presumed that the integrity of the
Supreme Court/High Court Division with its unlimited territorial
jurisdiction has not been impaired and the High Court Division has
remained one as before and therefore the impugned amendment
has to be construed in harmony with all other provisions of
Chapter I.20
It is usually said that a dissenting opinion is a forecast of the laws of
future and definitely on that day Justice ATM Afzal was on the right
point of view.
27.4. Jurisdiction of the Appellate Division
The Appellate Division has jurisdiction to hear and determine
appeais from judgments, decrees, orders or sentences of the Hiph
Court Division. But the scope of appeal from a judgment, decree
order or sentence of the High Court Division is not a matter of right
Usually an appeal lies only if the Appellate Division grants a leave to
appeal. However, appeal may be preferred as of right where -
and determine
a) the High Court Division certifies that the case involves a
substantial question of law as to the interpretation of the
constitution; or
b) the High Court Division has confirmed a sentence of death
(added by the 15" Amendment) or sentenced a person to
death or to imprisonment for life; or
Division
Parliament.
c) a person is punished for contempt of the High Court
d) such a right to appeal is provided for by any Act of
27.4.1. Article 104: Power to do complete Justice
Power of doing complete justice includes power to pass any directive
to any authority as per Article 104 of the Constitution. Article 104
provides The Appellate Division shall have power to issue such
directions, orders, decrees or writs as may be necessary for doing
complete justice in any cause or matter pending before it, including
orders for the purpose of securing the attendance of any person or the
discovery or production of any document.
ETV Lid v. Dr. Chowdhury Mahmud Hasan 55 DLR (AD) 26
This was a petition for reviewing the decision of Appellate Division
canceling the license of ETV. Dr. Kamal Hossain, appearing on
behalf of ETV, argued that a growing jurisprudence regarding the
remedial role of the court, required careful balancing of the
respective interestS a court decision will involve. The foreign
investors and the employees of ETV (whose right to livelihood was
at stake) had no connection with the so called corruption in granting
license to ETV. Dr. Kamal urged the Court to play a balancing role in this
regard." Syed Ishtiaq Ahmed argued that ETV became an
institution of such values that it should not be killed but be protected
keeping in mind the right to freedom of speech and expression." He
also sought a remedial role on the part of the Appellate Division to
do complete justice in this regard.
The Court comprising Mainur Rezà Chowdhury CJ, Md Ruhul
Amin J, Md Fazlul Karim J, KM Hasan J, SJR Mudassir Hossain J,
Abu Sayeed Ahmed J and Md Fazlul Haque J. rejected the petition
holding:
The remedial role of the Court is not to perpetuate the wrong but to
remove the wrong, if any, even though in the process some may
suffer damages. What is required to protect is the interest of the
general public from abuse by the executive, the most eloquent
aspect of this case....In such a case the benefit will be derived by
a large number of people in contrast to a few.
27.4.2. Review jurisdiction of the AD
The Appellate Division (AD) has the power, subject to the provisions
of any Act of Parliament and of any rules made by it to review any
judgment pronounced or order made by it.
27.4.3. Advisory jurisdiction of the Appellate Division
If it appears to the President that a question of law has arisen or is
likely to arise and it 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. The Appellate Division may, after such hearing as it
thinks fit, report its opinion thereon to' the President. The guiding
principles regulating the exercise of Advisory Jurisdiction has been
summed up by the Appellate Division in Special Reference No 1 of
1995:
(1) the expediency, bona fides, and motive for making a Reference
IS not justiciable.
2i18T32
(2) The Court is bound by the recitals in the order of Reference and
must accept the statement of facts in the Reference as they are. The
truth or otherwise of the facts cannot be gone into. The Court or
the parties appearing in the Reference cannot go behind the Reference.
(3) The President is not bound by the opinion on the Reference but
the advisory opinion s entitled to due weight and the opinion may
have great persuasive force.
(4) The opinion is not binding on the Court rendering the opinion
in the Reference.
(5) The advisory opinion is not "law declared" and is therefore not
binding on the High Court Division or Subordinate Court, but
nevertheless it is entitled to due weight and respect and normally to
be followed.
The unfortunate reality is that despite this strong constitutional
exposure in favor of an advisory role of the Supreme Court, such
jurisdiction has not been invoked by the Presidents of Bangladesh
except in two Reference made in 1995 (regarding en masse
resignation of MPs) and 2009 (regarding the trial of BDR mutineers).
But this Article might have gone a long way to unfold the
interpretative horizon for strengthening the trends of rule of law and
constitutionalism in Bangladesh.2
27.4.3.1. Is the Advisory Opinion binding?
In en masse Resignation of MPs Reference ATM Afzal J. held
that advisory opinion is not a law declared' and therefore is not
binding on the High Court Division or subordinate courts:
The sequence in which Articles 106 and 111 appear in the
Constitution can not be regarded a crucial consideration in favor of
holding that an opinion given by the Supreme Court has the status
of a law declared.
However, His Lordship opined that advisory opinions were entitled
to due weight and respect and normally be followed. Though the
 Court remained silent in explaining why such opinion rendered under
Article 106 would not be a 'law declared' by the Supreme Court,
there are weighty reasons why the observation of the apex Court
should at times be a 'declared law' under the constitutional scheme
of a country. In the words of Professor Flex Frankfurter, It must be
remembered that advisory opinions are not merely advisory
opinions. They are ghosts that slay.' Our constitutional dispensation

can not be an exception. The views of Md Joynul Abedin J. in

30
Special
Special Reference No 1 of 2009 (With Shah Abu Nayeem
Muhammad Mominur Rahman J. concurring) confirms the idea:
This Court with reference to some judicial pronouncements
within and outside the Sub-continent, as stated above, has accepted
as a principle that the advisory opinion under Article 106 of the
Constitution is not a "declared law" and is therefore not binding on
the High Court Division and the subordinate courts but is entitled
to due weight and respect and normally to be followed. I however
respectfully defer from this view for the compelling reason of
propriety, because if the opinion expressed by this court in the
present or in any future Reference is not binding on the
subordinate courts and the High Court Division that would lead to
judicial indiscipline and anarchy.
In the present case the reference was heard by giving notice to
all interested parties and 10 legal luminaries of the country
participated in the proceeding and expressed their valuable and
considered views on the question of law that is involved. It is truly
strange that a decision given by this court on a question of law in a
dispute between two private parties should be taken to be binding
on all courts in the country but the advisory opinion should not be
so regarded. This is exceedingly frustrating as it is demonstrati ve
of the fact that the learned Judges comprising the Special Bench
for deciding the reference are either not just capable enough to
exercise their wisdom by employing their legal and judicial
acumen to decide the question of law referTed to them or they are
otherwise handicapped to decide such matter. I am inclined to the
view that the opinion rendered by the Appellate Division under
Article 106 of the Constitution is the law declared by it within the
meaning of Article 111 of the Constitution and as such binding on
the High Court Division as well as on all courts subordinate toit
nay of the consultee i.e. the President and to take the other view as
has been taken would not only lead to judicial indiscipline and
anarchy but would also impair and negate the constitutional
jurisdiction of this court to authoritatively pronounce on all legal
31
and constitutional matters.
27.4.3.2. Refusal to render Advisory Opinion
Is the Appellate Division bound to render its opinion once such
opinion is sought? A direct answer in the atfirmative or negative can
not satisfy the demand of the question. Afzal J. has responded to the
question by saying:

The giving of opinion is not obligatory as it is under Judicial

Committee Act, 1833 or under the Canadian Supreme Court Act.
1906 or as under Pakistan Constítution, 1962. But though it is not
obligatory upon the Court to give an opinion, the Court will be
unwilling to declinea Reference except for good reasons.
It is however accepted that refusal should be only for such weighty
reasons that the court has no option but to return the Reference.33
Afzal J., after considering series of decisions, in En masse
Resignation Reference has summed up the principles that govern the
discretion of the Court in declining the answer to a Reference made
by the President:
a.the question is framed on broad. general and vague terms
b. speculative opinion on hypothetical question or abstract
questions
c.opinion is sought on validity of an entire Act and
d. nature of the question considering the facts and
circumstances suggest that the question should not be
answered provided true reasons are recorded.
27.5. Jurisdiction of the High Court Division
The jurisdictions of the High Court Division emanate from two
sources the Constitution and the Laws enacted by the Parliament.
Under the Constitution, the High Court Division has the following
jurisdictions:
1) Writ Jurisdiction under Article 102 of the Constitution
2) Jurisdiction as to Superintendence & Control over Courts
under Article 109 of the constitution; and
3) Jurisdiction as to transfer of cases from Subordinate
Courts to High Court Division under Article 110 of the
Constitution.
Under various laws, the High Court Division has various Original.
The writ
jurisdiction alternatively known as special original jurisdiction 1
discussed separately in Chapter 29. Other jurisdictions of the High
Appellate, Revisional and Reference Jurisdiction.
Court Division are discussed briefly below:
27.5.1. Supervisory Jurisdiction of the SC
As per Article 109 of the Constitution, the High Court Division has
superintendence and control over all courts and tribunals subordinate
to it. It is not possible to oust the supervisory jurisdiction of the
Court through any sub-ordinate law making.
AT Mrida v. The State 25 DLR 335
It was a revision petition against the rejection of the petitioners bail
petition in the Special Court formed under the Presidents Order 50 of
1972 (Bangladesh Scheduled Offences (Special Tribunal) Order),
1972. The accused was under trial in the Special Tribunal on the
charge of setting fire in the go-down of jute.
Article 15 of the Order provided that notwithstanding the
provisions of the Code or of any other law for the time being in
force, no action or proceeding taken or purporting to be taken under
the Order could be called in question by any court and there could be
no appeal from any order or sentence of Special tribunal or special
Magistrate Save as provided in Article 12. Article 12 of the Order
provided for only one appeal to the Supreme Court, and no other
remedies.
Now to seek bail from the High Court Division, Abdur Rahman
Chowdhury and Mainul Hossain appearing on behalf of the
petitioner invoked Article 109 of the Constitution dealing with the
supervisory jurisdiction of the High Court Division.
on
Fakir Shahabuddin Ahmed, the then Attorney General, appearing
on behalf of the government argued firstly that Article 15 of the
Order ousted the jurisdiction of the High Court Division.
Seconldy, Bangladesh Scheduled Offences (Special Tribunal)
Order 1972 being included in the First Schedule of the Constitution,
it had full force and effect and no provision of it be deemed void or
unlawful on the ground of inconsistency with or repugnance to any
provision of the Constitution. And hence the superintending power
under Article 109 of the Constitution was not available there." Only
that remedy can be pursued which was provided by the Order in its Article 12.
Badrul Haider Chowdhury J. rejected the contention holding that
the constitutional power of superintendence could not be altered by
ordinary laws:
After all the freedom, liberty, etc are cherished desires of the
individuals. If in the process of a given proceeding the liberty is
strangulated illegally the superior courts must interfere for the
protection of the individuals and that interference can be done by
among others the superintending power of the High Court and
more so since Courts are created with exclusive jurisdiction by
special enactment containing an ouster clause of jurisdiction. If the
converse proposition is accepted, namely, that the power of
superintendence is intended for administrati ve purpose only then
the liberty of the subject will be sacrificed at the altar of exclusive
jurisdiction a proposition which is dangerous to conceive of in
any society which is governed by rule of law.
Regarding the argument on Article 47(2), the Court replied:
Article 47(2) does not mean that such provision of such law can
knockout the jurisdiction created by the Constitution, e.g., Article
109 of the Constitution. Only those laws by constitutional device
are saved from challenge but that do not amount to authorize
strangulation of the Constitutional jurisdiction."
27.5.2. Power to transfer cases
If the High Court Division is satisfied that a case pending in a Court
subordinate to it involves a substantial question of law as to the
interpretation of the Constitution, or on a point of general public
importance, the determination of which in necessary for the disposal
of the case, it may withdraw the case from that court and may-
(a) either dispose of the case itself; or
(6) determine the question of law and return the case to the court
from which it has been so withdrawn (or transfer it to
another subordinate court) together with a copy of the
Judgment of the division on such question, and the court to
which the case is so returned or transferred shall, on receipt
thereof, proceed to dispose of the case in conformity witn
such judgment.
Whether a particular point is of general importance or not is a
question to be decided by the Court itself and there are no fixed rules
or guidelines in this regard. The determination depends on the facts
and circumstances of each and every case.
Supreme Court Bar Assn v. Khondker Abu Bakr 1985 BLD 1
The Minister of Local Government and Rural Development and the
Attorney General of Bangladesh were excluded from the list of the
members of the Supreme Court Bar Association by a resolution
adopted in the Association's Special General meeting on 14-11-
1983. Against that a suit was brought in the Munsif Court by the
Minister and Attorney General. During the pendency of the suit the
Supreme Court Bar Association moved to the HCD with a petition to
withdraw the case from the Munsif Court to be disposed of by the
HCD itself. The argument of the Association was that the
Association being a leading organization, the plaintiffs being the
Minister and the Attorney General and the Munsif Court being a part
of the lower tier of judiciary, there was reasonable apprehension that
free and fair trial would not be held due to the influence of the
Executive. Moreover with the leading Association of the country
facing influential governmental figures, the suit involved a point of
general public importance.
The Court however did not agree that there was general public
importance involved as the suit only concerned the association and
two of its members. It is only when the result of the suit concerns
the general public or the point invol ved in the suit concerns the
general public that it can be said that there is point of general public
importance.
The Court refused to transfer the case merely on the ground of
the status and personalities of the litigating parties which could not
be regarded as any criterion for fixing the forum of a suit.*
27.6. Binding force of the Court's Order
Article 11l of the Constitution establishes precedent value for the Judgment of the
High Court Division. The law declared by the
Appellate Division shall be binding on the High Court Division and
the law declared by either Division of the Supreme Court shall be
binding on all courts subordinate to it. As per Article 112, all
authorities, executive and judicial, in the Republic shall act in aid of
the Supreme Court.
Tahera Nargis Syed v. DIG Prison 41 DLR 508
In this case, to defy an order of the HCD declaring a preventive
detention illegal, a fresh order of detention was served and thereby
the petitioner's husband was deprived of his liberty. Even before the
release order was served, the detenue was served with fresh order of
detention. The DIG Prison was accused of delaying the release and
in the meantime informing the government about the release Order
so that government can issue fresh order of detention. DIG Prison
however denied any effort of flouting the judicial order and tendered
unconditional apology for even unconscious contempt. Sentencing
the DIG Prison with fine of Tk 500/, the Court observed:
..if any order is issued by the Supreme Court directing an
immediate release of any detenue then that order is to be treated as
an order from the highest authority of the country. If the order is
passed by the High Court Division then that order can be set aside
or stayed only by the Appellate Division. This is final. No other
authority can delay, stay or set it aside. No instruction, circular,
direction, notification, advice or other instrument of any kind
iss ued by any Ministry or any department of the government which
has the effect of staying, postponing, delaying, thwarting or
superseding an order of the Supreme Court is binding on any
functionary in the country. Unless this observation of ours is
followed strictly in letter and spirit it will be the end of Rule of
Law in this country.
Farzana Huq v. Assistant Secretary, Home Affaires 11 BLD 533
The detenue was in continuous detention for more than 2/2 years in
pursuance of successive orders which were found illegal in various
writ petitions before the High Court Division and the Cout directed
the respondents to set free the detenue forthwith and to report
compliance of the order. But instead the detenue was served with
fresh order of detention which was declared illegal. Even then the
armed police caught him as soon as he crossed the jail gate, kept him
in the police ban and fresh order was issued and he was sent back to
the jail. In the meantime the detenue was shown arrested in several
criminal cases in one of which he was granted bail by the High Court
Division while rest of the cases ended either. The Court held:
It is unfortunate that the authority which is obligated under Article
32 of the Constitution to protect the liberty of citizens and further
required under Article 112 thereof to act in aid of this court should
flout the laws by resorting to authoritarian acts.
46
27.7. Are the Judges bound by the Court's order?
Bangladesh & Justice Syed Dastagir Hossin v. Idrisur Rahman 15
BLC (AD) 49
In Idrisur Rahman v. Secretary, Ministry of Law 6l DLR 531 the
High Court Division ordered re-appointment of 10 dropped
Additional Judges. They were arbitrarily dropped by the 4-Party
Alliance government. Justice Syed Dastagir Hossain and 28 other
sitting Judges of the High Court Division filed a Civil Leave to
Appeal Petition against the judgement. They were concerned with
their seniority over the 10 droped Judges in case they are allowed to
re-enter the Supreme Court without any fresh oath. The question
arose whether 29 sitting permanent Judges of the High Court
Division could file a leave to appeal against the findings of the High
Court Division itself.
Tafazzal Islam J., Joynal Abedin J. and Md Fazlul Karim J.,
confirmed that the Judges had locus standi while Abdul Matin J,
MM Ruhul Amin CJ., opined that they had no locus standi.
Relying on Article 111 of the Constitution and Rule 7 of the High
Court Division Rules Barrister Amirul Islam argued that the
impugned judgment of the Special Bench was binding on the High
Court Division and its Judges. Barrister Amir argued:
The High Court Division is one and single unit of the Supreme
Court and even a judgment by a Single Judge is deemed to be a
judgment of the High Court Division as a whole.and therefore, the
respondents cannot file a leave petition against their own
judgment.
Appearing for the petitioner Judges, Barrister Rafique-ul Hug
submited that since the sitting judges were affected by the judgment
Huq
they are entitled to file the leave petitions."
Md. Abdul Matin, J endorsed argument of Br. Amir in the following
terms:
This follows that the\High Court Division is an unit of this Court
with a co-ordinate jurišdiction and one Judge or a group of Judges
can not challenge the judgment passed by another Judge or a bench
of Judges since that will amount to challenging their own judgment
which is not permissible in law."
Moreover if this is permitted the practice will destroy the tradition
of high decree of comity among the Judges of the Superior Courts
which is essential for the smooth and harmonious working of the
Supreme Court.
Three other Judges upholding the locus standi of the sitting judges
emphasized on the fact that the sitting Judges were neither made
parties nor any allegation was levelled against them in the writ
petition. Yet the impugned judgment of the High Court Division
abruptly affected their respective status and seniority while
appointing the writ petitioners as permanent Judges placing them
Over the said 29 permanent Judges.
A Judge becomes synonymous with the court only when he acts in
exercise of the jurisdiction of the court. The synonimity does not
go beyond that. It would be unreasonable to extend it to the person
of a Judge completely and for all purposes. It is true that there can
not exist a court without a Judge and indeed Judges are structural
components of courts. They are often used interchangeably as
synonymous. But this is not to say that the distinction between a
Judge as an individual and the court as seat of Justice as an
institution is completely obliterated. The two remain distinct
entities. A Judge is properly identified with the court in relation to
something done in exercise of the jurisdiction of the court. His
personality remains distinct and separate from the court. As
As individual, he can maintain action if he suffers legal wrong or legal
injury.
27.8. Supreme Court's power to punish Contempt"
The Supreme Court is a court of record with the powers of making
an order for the investigation of or punishment for any contempt of
itself. Contempt of Court has nowhere been defined in statutes.
Contempt may be constituted by any conduct that brings authority
of the Court into disrespect or disregard or undermines its dignity
and prestige.
Scandalizing the court is a worst kind of contempt. A willful
disregard or disobedience or an intentional as well as motivated
attempt or effort to lower or to undermine the position, prestige and
dignity of the court can be treated and considered as the contempt of
Making imputations touching the impartiality and integrity of a
Judge or making sarcastic remarks about his judicial competence is
also contempt. Conduct or action causing obstruction or interfering
with the course of justice is contempt.
While emphasizing the necessity of the Court possessing power
to punish for contempt, there is a note of caution that this power
must be exercised very sparingly and only in the case of extreme
necessity. 57 The judges must guard their position jealously, but
should not be touchy about it.
The Contempt of Courts Act - The Contempt of Court Act 1926
(Act No XII of 1926) now regulates the law in this regard. The Act
comprises three sections only. Under Section 2 of the Act, the power
of the HCD is limited to the extent of any contempt committed either
in respect of itself or of a court subordinate to it. Under Section 3,a
contempt of court is punishable for a maximum term which may
extend to six months, or with fine, which may extend to two
thousands taka, or with both. But what is contempt and what is the
procedure to be followed have not been defined and provided in the
Act.
The HCD has not yet adopted any rules to deal with contempt
proceedings. It is following the same path charted by the Appellate
Division. The Appellate Division framed the Appellate Division
Rules, 1988 detailing the procedure for dealing with contempt of that
Division. Order XXVII Rule 1 of the Appellate Division Rules reads
that the Court may take cognizance of its contempt suo moto or on a
petition by any person.
However, there is a feeling that what could readily be read as
contemptuous in 1900 or l1912 or 1936 is not so easily read now in
the context of expanding rights guaranteed as fundamental to human
existence under the Constitution.
Government of Bangladesh v. Shuhudul Haque (Criminal
Miscellaneous Suo Moto_Rule No 7742 & 12166 of 2003)
Three incidents of not saluting the Supreme Court flag and
misbehaving with a Honorable Judge of the Supreme Court were
tried on spot and the Judge passed sentences on 6 police officer in
three separate incidents. On the basis of such an incident occurring
near Farmgate on 23.6.2003 a contempt of court proceeding was
initiated. Rule was issued seeking clarification against the IGP to
explain:
Are the police officials of all rank trained to understand that every
person in uniform is under indispensable legal obligation to show
utmost respect to the Supreme Court by saluting the August body's
flag?
In response Shahudul Haque, Inspector General of Police,
Police,
Bangladesh claimed that the incidents were incredibly planned by
agents hostile to Bangladesh or Government of Bangladesh with the
object of harassing and humiliating the police and to destabilize the
law and order situation in the country. By making this statement,
perhaps the IG of Police was indicating the Judge who took
cognizance of the offence, in 'his opinion, 'acted as an agent hostile
to Bangladesh.' Later the contemnor tendered apology and admittea
his guilt. Amicus curie Malmudul Islam and Additional Attorney
General Abdur Razzaque accepted that there was contempt yet the
apology might be accepted.The Court refused to accept the
apology tendered by the petitioner.
We are sorry to say we cannot subscribe to the slap-say-sorry-and
forget school of thought in administration of contempt
jurisprudence. This was a paper of apology and the expression of
sorrow came from the pen not from the heart for it is one thing to
of
say sorry and it is another thing to feel sorry..........
When a Judge moves anywhere in Bangladesh the Supreme
Court moves with him, the Supreme Court does not mean a
building made of bricks, stones and glasses. It means its authority
and function, judges and staffs, symbol and insignia, trivia and
traditions.
The IGP was fined with 1000 or 2 months imprisonment while the
others were with 500 and one month.
Dr. Ahmed Hussain v. Shamsul Hug Chowdhury 48 DLR 155
Md. Shamsul Huq Chowdhury, the Chairman of the Sommilito
Ainjibi Somonnoy Parishad was accused of contempt of court. He
allegedly made a statement in the newspaper condemning the
appointment of Justice Abdur Rouf as the Judge of the Appellate
Division:
Presence of Mr. Justice Abdur Rouf, a disputed person as the CEC
in the holy premises of the Supreme Court has tarnished the image
of highest court in the eye of the public. His role as Chief Election
Commissioner is one of ignominy and unbecoming of what he was
just before his appointment as the CEC.
In that statement he proposed to form a six member judicial body to
appoint judges in the Supreme Court. Dr. Ahmed Hossain came to
the Court with clear argument that the statement was made to lower
down the image of the High Court Division and many of the sitting
judges and specially one of the sitting judges.
The Court held that the statement did not contain any scandalous
statement against the Judge or Judiciary or Superior Courts of the
country to lower down its image in the estimation of the public in
general. Rather, it was a constructive criticism relating to
appointment of the Judges and not an attack on the Judge exercising
his function as a judge. The statement or any part of it got no
reference to the judgment of any of the judges of either Division. The
solitary statement was directed to Mr. Justice Abdur Rouf at the time
when he was working as the Chief Election Commissioner and not as
a judge. " Accordingly the petition was rejected.
27.9. The Subordinate Courts
As per Article 114 of the Constitution, in addition to the Supreme
Court, there may be such other subordinate courts as may be
established by law. The law establishing the subordinate Civil Courts
is the Civil Courts Act 1887, while the Code of Criminal Procedure
establishes the Courts of Judicial Magistrates. Apart from the regular
Civil and Criminal Courts there are a number of special courts and
tribunals established under various other special laws. The
Subordinate Courts and some of the various Tribunals now
established in Bangladesh are as follows:
Civil Courts established under the Civil Courts Act, 1887
The Court of District Judge
The Court of Additional District Judge
The Court of Joint District Judge
The Court of Senior Assistant Judge
The Court of Assistant Judge
Criminal Courts established under the CrPC
Courts of Session (Sessions, Additional Sessions, Joint Sessions)
Courts of Magistrates
In Metropolitan Areas
Chief Metropolitan Magistrate
Additional Chief Metropolitan Magistrate
Metropolitan Magistrate (First Class)
Outside the Metropolitan Areas
Chief Judicial Magistrate
Additional Chief Judicial Magistrate
Magistrates of the First Class
Magistrates of the Second class
Magistrates of the Third class

Some of the Special Courts established under different laws are

as follows:
Family Court (The Family Court Ordinance, 1985)
Village Court (The Village Court Ordinance, )
Small Causes Court (The Small Causes Court Act)
Labor Court (The Labor Act 2006)
Mobile Court (The Mobile Court Act 2009)
Environment Court (The Environment Court Act 2000)
Juvenile Court
Money Loans Court (The Artha Rin Adalat Ain, 2003)
Court of Settlement, etc
Some of the Tribunals established under different laws are as
follows:
Tax Appellate Tribunal (The Income Tax Ordinance, 1984)
Labour Appellate tribunal (The Labour Act, 2006)
Special Tribunal (The Special Powers Act, 1974)
Special Tribunal on Violence against Women and Children
and
(Special Tribunal under the Speedy Trial Tribunal Act 2002)
EPZ Labour Tribunal and EPZ Labour Appellate Tribunal (EPZ
Workers' Association & Industrial Relations Act. 2004)
Election Tribunal (The Representation of Peoples Order, 1972)
Customs, Excise and Value Added Tax Appellate Tribunal (The
Customs Act, 1969 & The Mulya Songjojon Kar Ain, 1991)
Land Survey Tribunal and Land Survey Appellate Tribunal (The
State Acquisition and Tenancy (Amendment) Act, 2004)
Vested Property Return Tribunal and Appellate Tribunal (The
Arpita Sampatti Pratyarpan Ain, 2001)
Arbitration Appellate Tribunal etc

27.10. Courts 'not subordinate' to the Supreme Court

Parliament may by law establish additional courts, but Article 114
operates as a limitation on the plenary legislative power of the
Parliament. Because of Article 114 the Parliament cannot create
court which is not subordinate to the High court Division, or amend a
law to make an existing court independent of the Supreme Court 65
Assuming that all Courts established by law remain subordinate to
the Supreme Court, the necessary consequence is that the Supreme
Court in its turn shall have superintendence and control over all such
courts subordinate thereto. This is exactly what Article 109
provides, The High Court Division shall have superintendence and
control over all courts and tribunals subordinate to it.'
Even the Administrative Tribunal established under Article 117
and the Court Martial established under the law relating to the
Defence Services does not escape the writ jurisdiction of the
Supreme Court if it is found to be a corum non judice, its
proceedings is mnala fide or if it reaches a decision without any
evidence or if it does not have jurisdiction to try issue. This shows
nothing but the inescapable supremacy and superintendence of the
Supreme Court over all courts or tribunals of Bangladesh, though the
degree of interference may vary."
Shahar Ali v. A R Chowdhury 32 DLR (1980) 147
Special Tribunals are established under the Special Powers Act, 1974
to deal with cases brought under the Act. Originally Section 3 of the
Special Powers Act, 1974 provided that an appeal from the judgment
of a Special Tribunal established under the Act would lie to the High
Court Division. Subsequently it was amended to provide that appeal
against any order, judgment or sentence of the Special Tribunal shall
lie to an Appellate Tribunal established by the government. As per
the amended Section 30(3) of the Special Powers Act, the decision of
the Appellate Tribunal shall be final being immune from any appeal
even to the Appellate Division of the Supreme Court. The Appellate
Tribunal would comprise of Judge who was or was qualified to be a
judge of the Supreme Court.
The petitioner challenged the vires of Section 30 of the Special
Powers Act making the decision of the Appellate Tribunal final. The
petitioner argued that this was evidently an attempt to create a court
parallel to the High Court Division of the Supreme Court outside the
pale and purview of the Supreme Court. Now, the Appellate Division
had no jurisdiction over any judgment or order of the Appellate
Tribunal, even under Article 103 of the Constitution. Declaring the
amendment was ultra vires the Constitution, the HCD held:
The original, appellate and any other jurisdictions, powers and
functions of the High Court Division which are conferred on it by
laws of the Parliament, may be taken away by subsequent laws.
But the power of superintendence and control being conferred by
Article 109 of the Constitution cannot be taken away by ordinary
legislation.
Bangladesh v. Shahjahan Siraj @ Sirajul Islam 32 DLR (AD) 1
This question was argued before the Appellate Division in
Bangladesh v. Shahjahan Siraj. Here an argument was forwarded
claiming that a Special Tribunal established under the Special
Powers Act 1974 was not a Tribunal subordinate to the Supremne
Court as the High Court Division was barred from hearing appeal
from or revising any order, judgment or sentence of the Special
Tribunal.
But the Appellate Division rejected the argument declaring that
High
mere absence of provision for appeal to or revision by the
Court Division does not take a Tribunal out of the subordination of
the Supreme Court. Rather combined reading of Articles 114 109
and 102 of the Constitution makes it clear that such Tribunal is
72
inferior to the Supreme Court.

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