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Criminal courts

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 Assignment
On
Hierarchy of criminal courts in Bangladesh

Prepared for:
NUSHERA TAZRIN DARIN
Lecturer
Department of Law
Green University of Bangladesh

created by :
Md Firoj Ahmed
Id: 211911001
Student of GUB
Department of Law
Introduction :
Bangladesh is a twice-born nation. It achieved independence in 1947 from British
domination as a part of Pakistan named as East Pakistan. Over a period of two decades,
it suffered from what has been described as internal colonialism. It finally emerged as a
sovereign nation in 1971 through protracted mass agitation and a war of liberation,
which claimed millions of lives (Khan et al., 1996, p. 1). The Judiciary of Bangladesh
consists of a Supreme Court, subordinate courts and tribunals. The Supreme Court of
Bangladesh comprises of the Appellate Division (AD) and the High Court Division (HCD).
It is the apex court of the country and other courts and tribunals are subordinate to it. In
this assignment I have briefly discussed the Hierarchy of criminal procedure in
Bangladesh.

After the emergence of Bangladesh in 1971, initially, there was no change of laws and
the judicial system. As an independent nation of the world, Bangladesh adopted its
constitution in 1972, which provides the structure and functions of the Supreme Court,
which comprises the HCD and the AD. The HCD has empowered to hear appeals and
revisions from subordinate courts, and also to issue orders and directives in the nature of
writs to enforce fundamental rights and to grant other relieves available under the writ
jurisdiction. The AD is vested with power to hear appeals from the decisions of the HCD
or from any other body under any statute. The HCD has also powers of supervision and
control of the subordinate courts and tribunals and also has jurisdictions to declare any
law inconsistent with the fundamental rights as null and void.

It is pointless to say that in Bangladesh the subordinate judiciary both in civil and criminal
side originated from Civil Court Act 1887 and Criminal Procedure Code 1898 as
amended up to 2007 (Halim, 2008, p. 75). Beside this, in Bangladesh, there are some
other special laws, which provide the basis of some special courts, like as Labour Court,
Juvenile Court, Administrative Tribunal, etc. The basic source of law in Bangladesh is
the Constitution of the People’s Republic of Bangladesh 1972 as amended from time to
time. Though the legal system of Bangladesh is founded on the English common law,
most of the laws of Bangladesh are statutory laws enacted by the parliament and
interpreted by the Supreme Court. Rule of Law is one of the basic features of
Bangladesh legal system. Every one is equal before the law and entitled to equal
protection of law, and there cannot be any discrimination on the ground of religion, race,
sex, etc. and no one can be detrimentally affected in life, liberty, body, reputation or
property except in accordance with law in Bangladesh. The the present judicial system of
Bangladesh is discussed below. 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

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1971 and the Provisional Constitution of Bangladesh Order 1972 (Akkas, 2004, p. 87).
The High Court consisted of a chief justice and so many other judges as may be
appointed from time to time. They would be appointed by the President and held office
“on such terms and conditions as the President may determine”[11]. Later, by the High
Court of Bangladesh (Amendment) Order 1972 an AD of the High Court of Bangladesh
was established and it consisted of the chief justice and two other judges of the High
Court appointed by the President after consultation with the Chief Justice[12].

The High Court of Bangladesh existed until the Supreme Court established under the
Constitution of Bangladesh[13] (Cited in Akkas, 2004, p. 87). The hierarchical structure
of the present judiciary of Bangladesh is shown in Figure 2. The diagram of present
judiciary’s hierarchical structure indicates that at the top of the hierarchy is the Supreme
Court of Bangladesh. Supreme Court has two divisions –
HCD and AD. And there is a network of subordinate courts and tribunals under the HCD.
Besides, the above-mentioned courts there are some tribunals and special courts like
Juvenile Court, Labour Court, Family Court, Administrative Tribunal, etc. The the
following section deals with the details of the judiciary in Bangladesh.

The Supreme Court of Bangladesh

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 (to be known as the
Supreme Court of Bangladesh) comprising two divisions – the AD and the HCD. The
Supreme Court shall consists of the Chief Justice, to be known as the Chief Justice of
Bangladesh and such number of other Judges as the President may deem to necessary
to appoint to each division (Article 94(2) of COB). 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 (Akkas, 2004, p. 89). According to the provision of
Article 94(4) of the Constitution, the Chief Justice and the other Judges shall be
independent in the exercise of their judicial functions. The AD has jurisdiction to “hear
and determine appeals” against “judgments” decrees, orders or sentences’ passed by
the HCD (Article 103(1)). It has also an advisory jurisdiction. As to the advisory
jurisdiction,
Article 106 of the Constitution lay down:
If at any time it appears to the President that a 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 HCD has “original, appellate and other
jurisdictions and powers as are conferred on it” by the constitution or any other law
(Article 101 of COB). It has also a special original jurisdiction. Under this jurisdiction, it is
authorized to enforce fundamental rights of the citizens and to issue certain orders and

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directions in the nature of writs of prohibition, mandamus, certiorari, habeas corpus and
quo warranto (Article 102 of COB). In addition, the HCD exercises special and statutory
original, appellate, revisional, admiralty and miscellaneous jurisdictions under numerous
laws (Akkas, 2004).

Jurisdictions and power of the Supreme

Court:
The Supreme Court of Bangladesh is divided into two divisions namely the AD and HCD.
Jurisdiction of HCD and AD is as follows.

Jurisdiction of HCD:
According to Article 101, there are two sources of power and jurisdiction of HCD – the
constitution and ordinary law. The main sources of ordinary law jurisdiction of the HCD
are the Codes of Civil and Criminal Procedure, which provide appellate and revisional
jurisdictions. There are a number of other laws which confer on the HCD jurisdiction to
adjudicate disputes (Islam, 2003). Hence, the jurisdiction of the HCD may be divided into
two types (Halim, 2008, p. 77):

(A) Ordinary or general jurisdiction.

(B) Constitutional jurisdiction.

A. Ordinary jurisdiction. Ordinary jurisdictions of

HCD’s are:
● original jurisdiction;
● appellate jurisdiction;
● revisional jurisdiction; and
● reference jurisdiction.

Original jurisdiction means that jurisdiction whereby HCD can take a case or suit as a
court of first instance. It is for the ordinary laws (laws passed by the parliament) to
prescribe what particular subject matter will come under the ordinary jurisdiction of the
HCD. For example, the Company Act 1913, the Admiralty Act 1861 and the Banking
Companies Ordinance 1962, etc., have conferred on the HCD the ordinary jurisdiction
(Halim, 1998; Islam, 2003). Any law may confer on the HCD appellate jurisdiction on any
matter. For example, the Cr. PC and the CPC have conferred on the HCD appellate
jurisdiction. Revisional jurisdiction of HCD means the power whereby it check the
decisions of its inferior courts; for example, Section 115 of the CPC has given the HCD
the revision power. Reference jurisdiction means the power whereby the HCD can give
opinion and order on a case referred to it by any subordinate court. For example, Section
113 of the CPC gives the HCD reference jurisdiction (Halim, 1998; Islam, 2003).

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B. 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; and
(3) jurisdiction as to transfer of cases.

The constitution has enumerated original jurisdiction of the HCD only in the field of writ
matters. The basis of writ jurisdiction is Article 102 of the constitution. 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 Part III of the constitution
and can also exercise its power of judicial review (Halim, 2008, p. 78). Article 109 of the
constitution conferred that the HCD shall have superintendence and control over all
courts and tribunals subordinate to it[14]. This power is also called the supervisory power
of the HCD. Therefore, the position for supervisory power is that the court or tribunal
must be subordinate to the HCD. The supervisory power of the HCD as conferred by
Article 109 is a constitutional power. The power of superintendence is in addition to the
power conferred upon the HCD under Section 115 of the CPC and Cr. PC is only
statutory supervisory powers whereas power under Article 109 of the constitution is a
constitutional supervisory power (Halim, 2008, p. 78). Statutory supervisory power
extends to judicial but not to administrative matters, while the constitutional supervisory
power extends to both judicial and administrative matters[15]. The statutory supervisory
power covers only courts but Article 109 covers court as well as tribunals subordinate to
the HCD. Under this supervisory power, HCD can interfere in the functioning of
subordinate courts or tribunal in the following circumstances (Halim, 1998, p. 325):

● want or excess of jurisdiction;

● failure to exercise jurisdiction;
● violation of procedure or disregard of principles of natural justice; and
● findings based or no materials, or order resulting in manifest injustice.

Under Article 110 of the constitution the HCD may transfer a case form subordinate court
to itself (Halim, 1998, p. 328). But condition is that the HCD is to be satisfied that:

● A substantial question of law as to interpretation of the constitution is involved in

the case. Or
● A point of general public importance is involved in the case.
If the HCD, on being so satisfied, with draws a case from a subordinate court, it will take
following three alternatives; it may dispose of the case itself; or it may determine the
question of law and return the case to the court from which it has been withdraw together
with a copy of the judgment of the division on such question, and the court to which the
case is so returned, on receipt thereof proceed to dispose of the case in conformity with
such judgments. Or It may determine the question of law and transfer it to another

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subordinate court together with a copy of the judgment of the division on such question
and thebcourt to which the case is so transferred shall, on receipt thereof, proceed to
dispose of the case in conformity with such judgment. The power of transfer under
Article 110 is a discretionary power and so no litigant can invoke this power as of right.
This power can be exercised Suo Motu by the HCD or it may be exercised on an
application by party (Halim, 2008, p. 88).

Jurisdiction of the AD
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; and

(2) ordinary law.

But an ordinary law can give the AD only appellate jurisdiction as stated in Article 103(4)
of the constitution[16]. There are four types of jurisdiction have conferred by the
constitution itself on the AD as follows:

A. appellate jurisdiction;
B. jurisdiction as to issue and execution of process;
C. jurisdiction as to review; and
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; and

(2) cases where appeal can be made if the AD grants leave to appeal.

According to Article 103(2) one can appeal to the AD from the judgment, decree, order
or sentence of the HCD lies as of right in the following three cases[17]:

(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; and
(3) where the HCD punishes a person for its contempt.

It has also enumerated in Article 103(2) that parliament may by law add to this list other
cases in which appeal as of right may be filed[17]. Beside these, all other cases except
the above-mentioned three cases appeal shall be laid from the judgment, decree, order

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or sentence of the HCD only if the AD Grants leave to appeal[18] (also cited in Halim,
2008, p. 89).

Jurisdiction as to issue and execution of process:

The issue and execution of process of the AD is also called power to do complete
justice. Article 104 of the constitution provides that the AD shall have power to issue
such orders or directions as may be necessary for doing complete justice in any case or
matter pending before it[19]. This power is a discretionary and extraordinary one of the
AD. The AD may use this power suo motu or on the application of any party (Halim,
2008, p. 89).
Jurisdiction as to review:
The AD shall have power, subject to the provisions of any Act of Parliament and of any
rules made by that division to review any judgment pronounced or order made by it[20].
Accordingly, the Supreme Court of Bangladesh (AD) Rules were framed by the AD in
1988 (Halim, 2008, p. 90). According to these Rules: The Appellate Division may either
of its own motion or on the application of a party to a preceding, review its, own
judgment or order in a civil proceeding on grounds similar to those mentioned in Order
XLVII Rule 1 of the Code Of Civil Procedure and in a criminal proceeding on the ground
of error apparent on the face of the record (Rule 1 of Order XXVI) (Halim, 1998, p. 342).

Advisory jurisdiction:
In Bangladesh, Article 106 of the constitution provides that the President may seek the
opinion of the AD of the Supreme Court on a question of law which has arisen or is likely
to arise and which is of such nature and of such public importance it is expedient to
obtain the opinions. The AD may, after such hearing as it thinks fit, report its opinion
thereon to the President[21]. In this context, it is to be noted that in the constitutional
history of Bangladesh, one reference has been made to the AD seeking its advisory
opinion in 1995 regarding boycotting of parliament by opposition MPS for consecutive
sitting days of more than 90 days (Akkas, 2004). Recently (in 2009), the president has
been made another reference to the AD for seeking its advisory opinion regarding the
adjudication process of Pill Khana Killing case under which law army law or common law
the would be decided? After hearings of ten eminent law experts as Amicus Curiae of
Bangladesh the AD gave its opinion that this case would be appropriate to adjudicate
under common law not army law. Although this is not obligatory upon the court to give an
opinion, however, it will be unwilling to decline a reference except for good reasons. By
giving this advisory opinion the Supreme Court significantly contributes to the
Democratic Governance of Bangladesh. Therefore, the judiciary may play a crucial role
in good governance by exercise its advisory jurisdiction.

Subordinate court:
Under the HCD of the Supreme Court, there is a set of subordinate courts and tribunals

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having civil, criminal or special jurisdiction. The huge portion of the population is directly
linked with the litigation in the courts of the subordinate judiciary. This lower judiciary is
the base and foundation of the judiciary and also the creatures of statutes. The
respective statutes also determine their powers, functions and jurisdictions. The major
bulk of the cases, both civil and criminal, are tried and heard in such courts and
tribunals. Some tribunals are termed as administrative tribunals. The subordinate courts
in Bangladesh can be divided in two broad categories namely, civil and 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[22]. After November 1, 2007
with the enactment and enforcement of Code of Criminal Procedure 1898 (Amendment)
Ordinance 2007 and other four rules[23] (Halim, 2008, p. 93) relating with separation of
judiciary the nature and structure of the subordinate court system in Bangladesh are
discussed below.

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[28].
In broadly, it can be divided into two categories of courts like as – Courts of Session
and Courts of Magistrate.

Courts of Session:
For the purpose of administration of criminal justice in the territory of Bangladesh has
been divided into some sessions divisions each containing a Court of Sessions (Halim,
2008, p. 102). In the structure of Courts of Session, there are three tiers of judges,
namely, Sessions Judge, Additional Sessions Judge and Joint Sessions Judge. Judges
of Sessions Courts try grave criminal offences[24]. As per rules of Section 9 of the CrPC,
the Government is bound to appoint a judge in each Session Court. Under Section 9(3)
Session Judge, Additional Sessions Judge and Joint Sessions Judge Shall be appointed
from among the members of the Bangladesh Judicial Service (Halim, 2008, p. 103).
Sessions Judge and Additional Sessions Judge hold same powers, while Joint Sessions
Judge enjoy lesser powers. A Sessions Judge and an Additional Sessions Judge may
impose any penalty including the death penalty prescribed by law, however, any
sentence of death passed by any such Judge shall be subject to confirmation by the

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HCD (Akkas, 2004, p. 93; Halim, 2008, p. 106). A Joint Sessions Judge may pass any
sentence authorized by law, except a sentence of death or of transportation for a term
exceeding ten years or of imprisonment for a term exceeding ten years (Halim, 2008, p.
106). The Court of Session for a metropolitan area is known as the Metropolitan Court of
Session and in practice, judges from the civil jurisdiction, District Judges, Additional
District Judges and Joint District Judges are appointed to these positions (Akkas, 2004,
p. 92). Judges appointed to such courts do not hear or try any civil matter, unlike judges
of session courts in districts. These are a kind of relatively fast track criminal courts. All
Joint Session Judge shall be subordinate to the Sessions Judge in whose Court they
exercise jurisdiction (Section 17A) and all Judicial Magistrates including to the Chief
Judicial Magistrates shall be subordinate to the Metropolitan Session Judge under
Section 17A(92) (Halim, 2008, p. 103).

Court of Magistrates:
Under Subsection 6(2) of the CrPC provides that there will be two types of magistrate
court: Judicial and Executive Magistrates (Halim, 2008, p. 106). There are four types of
Magistrates, namely, Chief Metropolitan or Chief Judicial Magistrate, Magistrates of the
first class, Magistrates of the second class and Magistrates of the third class. Such
classification of magistrates is made on the basis of powers and functions assigned to
each class[24]. Apart from these types of magistracy, two other forms of Special
Magistracy and Justice of Peace have been existed in Bangladesh[29].

Judicial Magistrates:
Subsection 6(3) provides that there shall be four types of Judicial Magistrate like as
follows:
(1) CMM in metropolitan areas and Chief Judicial Magistrate in other areas.
(2) First-Class Magistrate, who is known as metropolitan areas and Chief Judicial
Magistrate in other areas.
(3) Second-Class Magistrate.
(4) Third-Class Magistrate (Halim, 2008, p. 106).

However, Section 6 of CrPC specifies that the word “CMM” and “Chief Judicial
Magistrate” shall include “Additional CMM” and Additional Chief Judicial Magistrate”,
respectively[30]. Therefore, these Additional CMM or Additional Chief Judicial Magistrate
are not any separate courts; they are part of the CMM and Chief Judicial Magistrate.
However, the Additional CMM or Additional Chief Judicial Magistrate may exercise the
same power of sentence as that of the CMM and Chief Judicial Magistrate (Halim, 2008,
p. 107).

Moreover, under Section 12(1) of the Code of Criminal Procedure 1898 the government
“may appoint as many persons as it thinks fit” as a Magistrate of the first, second or third
class in any district: all of them subordinate to the District Magistrates[31]. Section 29C
of the Code of Criminal Procedure 1898 empowers the government to invest a District

9 | Page
Magistrate or any Additional Magistrate “with power to try as a Magistrate all offences
not punishable with death” (Akkas, 2004, p. 96). In addition, the government may invest
any magistrate of the first class with power to try as a magistrate all offences not
punishable with death or with imprisonment for a term exceeding ten years’[32].

A magistrate of the first class may impose the sentences of imprisonment for a term not
exceeding five years, fine not exceeding TK 10,000 and whipping[33]. A magistrate of
the second class may impose imprisonment for a term not exceeding three years and
fine not exceeding TK 5,000[34]. A magistrate of the third class may impose
imprisonment for a term not exceeding two years and fine not exceeding TK 2,000[35].

Executive Magistrate:
Under Section 10 of the Code of Criminal Procedure 1898 in every district and in every
metropolitan area, the government shall appoint as many persons as it thinks fit to be
Executive Magistrates and shall appoint one of them to be the District Magistrate (Halim,
2008, p. 107). The government may also appoint any Executive Magistrate to be an
Additional District Magistrate, and such Additional District Magistrate shall have all or
any of the powers of a District Magistrate[36]. The government may, or the District
Magistrate may from time to time, by order define local area within which the Executive
Magistrate may exercise all or any of the powers of a District Magistrate (Halim, 2008, p.
107). All persons appointed as Assistant Commissioners, Additional Deputy
Commissioners or Upazila Nirbahi Officer in any district or Upazila shall be Executive
Magistrate within their existing respective local areas[36]. The Executive Magistrates
shall not exercise any judicial function. He or she will do the work, which are
administrative or executive in nature, such as the granting of a licence, sanctioning a
prosecution or withdrawing from a prosecution, etc.[37] (Halim, 2008, p. 108).

Courts and tribunals of special jurisdiction:

Beside the aforesaid mainstream ordinary civil and criminal courts within the structure of
the subordinate judiciary, there are a good number of special courts and tribunals, both
civil and criminal, established by different laws and constitutional provisions to deal with
specific matters or offences (Akkas, 2004, p. 97; Halim, 2008, p. 111)[38]. For instances,
in the civil area there are Labour Courts to deal with disputes under different
labour-related laws, Family Courts to deal with matrimonial matters, Money Loan Courts,
Bankruptcy Courts, Income Tax Tribunals, Administrative Tribunals, Election Tribunals,
etc. to deal with relevant matters[38]. Similarly in the criminal area, there are Special
Tribunals, Public Safety Tribunals, Courts Against Repression of Women and Children,
etc. to deal with certain specified offences[38]. All such courts and tribunals are also
under the general superintendence and control of the Supreme Court[39]. The
discussion of some of the special courts or tribunals is follows.

(A) Family Court. Family Courts were established under Section 4 of the Family Courts
Ordinance 1985 where all courts of Assistant Judge are invested with the power of the

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Family Courts and all Assistant Judges act as judges of theses courts (Akkas, 2004, p.
97). The jurisdiction of Family Court is to “entertain, try, and dispose of any suit relating
to, or arising out of” dissolution of marriage, restitution of conjugal rights, dower,
maintenance and guardianship and custody of children[40].

(B) Village Courts. The Village Court has been established under the Village Courts Act
2006 (Gram Adalat Ain, 2006) with a view to adjudicating petty civil and criminal matters
in rural areas (Halim, 2008, p. 135). There is a list of criminal cases and civil matters
have been outlined in the schedule of the act, which provides the court’s jurisdiction.
Under Section 5 of the Act a Village Court consists of a Chairman and two members
nominated by each party to the dispute totaling five members including its Chairman[41].

(C) Financial Loan Court. In Bangladesh, the Financial Loan Courts were established in
accordance with Section 4 of the Financial Loan Court Act 1990, which was enacted to
make special provisions for recovery of loans given by financial institutions[42]. Judges
of the Financial Loan Courts are appointed from among the Joint District Judges (Akkas,
2004, p. 97).

(D) Special Tribunal. Special Tribunals were established under Section 26 of the Special
Powers Act 1974. These tribunals are authorized exclusively to try the offences under
different statutes including the arms Act 1878 and the Explosive Substances Act 1908
(Akkas, 2004, p. 99). This court is applicable for the offences of unlicensed manufacture,
conversion, sale, importation, exportation, and possession of any arms, ammunition or
military stores, and causing explosion by explosive substances likely to endanger life,
person or private property or with intent to commit offence[43]. All Session Judges,
Additional Session Judges or Assistant Session Judges act as judges of the Special
Tribunals for the areas with their session’s division. The judges may impose “any
sentence authorized by law for the punishment of the offence of which a person is
convicted”[44]. The government is empowered to constitute additional Special Tribunals
consisting of Metropolitan Magistrates or Magistrates of the first class under Section
26(2) of the Special Power Act 1974.The Magistrates may impose “any sentence
authorized by law except death, imprisonment for life or imprisonment for a term
exceeding seven years and fine exceeding ten thousand taka”[45].

(E) Court of Special Judge. In accordance with the Criminal Law Amendment Act 1958,
the Courts of Special Judge were established to try and punish special kind of offences
including corruption (Akkas, 2004, p. 98). The Special Judges may be appointed from
among Sessions Judges, Metropolitan Magistrates or Magistrates of the first class[46].

(F) Administrative Tribunal/Administrative Appellate Tribunal. Administrative Tribunals in

Bangladesh were established by the Administrative Tribunals Act 1980. This Tribunal
consists of one member appointed from “among persons who are or have been District
Judges”[47]. It has exclusively empowered to hear and determine disputes relating to the
service matters of person employed in the service of the republic or any statutory public

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authority[48]. In order to hear and determine appeals from any order or decision of an
Administrative Tribunal, Administrative Appellate Tribunals are established comprising
one chairman and two other members (Akkas, 2004, p. 99). The chairman shall be a
person who is, or has been, or is qualified to be a Judge of the Supreme Court, and of
the two other members, one shall be a person who is or has been an officer in the
service of the republic not below the rank of joint to the government and the other a
person who is or has been a District Judge (Akkas, 2004, p. 99)[49]. Beside the judicial
structure of Bangladesh, some other important issues are very closely related to the
legal system of Bangladesh, which I have given follows.

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. They are entrusted with a large number of functions including those of
implementing the policies of the government (Akkas, 2004, p. 101). 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
(Ashrafuzzaman, 2006). In discharging their duties as public servants, magistrates are
always in close contact with the political executive who are responsible for their posting,
promotion and prospects. Therefore, it is likely that in deciding criminal cases they are
dictated and influenced by the political executive (Halim, 1998; Akkas, 2004, p. 102).
Control over the magistracy is seen vital for harassing political opponents by the criminal
justice system and conversely, absolving members of the ruling party and bureaucrats
from alleged criminal wrongdoings (Ashrafuzzaman, 2006).

Delay in the disposal of cases:

Delay in the disposal of cases is another important issue of the judiciary in Bangladesh.
According to the report of the Ministry of the Law, Justice and Parliamentary Affairs,
there are more than 968,000 pending cases in Bangladesh (Akkas, 2004). Among these
cases 5,000 (approximately) are pending in the AD; 127,244 are in the HCD; 344,518
are in the subordinate civil judiciary; 95,689 are in the Courts of Session, and 296,862
are in the Magistrate Courts (The Daily Janakantha, 3 February 2002). This figure
indicates the scale of power of the courts rather than a measure of delay. In fact, when a
case is filed with a court, nobody knows when it will end. Even a small case, which
should be disposed of within one year, may take ten to 15 years to dispose of through all
stages (Akkas, 2004).

Corruption:
Corruption is a great problem in Bangladesh and the judiciary is not free from it. It is
generally believed that the judiciary is extensively involved in corruption (Akkas, 2004, p.
105). Transparency International in its Global Corruption Report 2007 disclosed that
Bangladesh failed to ensure full independence of the judiciary and the politicization of

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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). In fact, corrupt practices of the people involved in the justice system seriously
undermine the image of the judiciary.

The politics of prosecutors:

In Bangladesh, prosecutors are also thrown out during a government’s tenure if they
displease the whims of a local member of parliament, a minister or some other political
extreme. Their appointment and job security are not determined by their ability or
professionalism but by the extent to which they have served the pecuniary and political
benefit of the appointing party, its leaders and workers (Ashrafuzzaman, 2006). In
addition, prosecutors simply make the most of the time that they have in their positions
to benefit themselves and their patrons. The prosecutor feels answerable only to his
party bosses (Ashrafuzzaman, 2006).

Concluding remarks
The foregoing discussion reveals that there is a well-organized court system in
Bangladesh and it is in fact the culmination of a long historical tradition. In the historical
period, the courts were mostly presided over by more than one individual, but under the
current system the bench of judges exist only in the Supreme Court. Subordinate courts
in Bangladesh are presided over by a single judge (Akkas, 2004, p. 99). Under
Subsections 15 and 19 of the Code of Criminal Procedure 1898, benches of two or more
magistrates may be constituted to try criminal cases, but in practice no such bench is
constituted[50]. The ancient judicial system was not based on rule of law rather on
caprice and caste consideration. Justice was administered in accordance with the
religious law. Therefore, in Hindu period, learned Brahmins assisted the King in the
administration of justice by expounding the Hindu law. Though judges took oath for fair
and impartial judgment, however, the King himself lead the judiciary and he was free to
make any changes in the structure of the court, so the independence of judiciary was not
ensured.
Similarly, in the Muslim period, the Sultan or Emperor was the supreme authority of
administration of justice as state head and a learned law officer Mufti was assigned to
explain the Islamic legal provision to assist the Qazis. Although, equality before law was
a common feature and qazis were fulltime judges at every level of administration,
however, the executive authority was empowered to exercise judicial functions.
Therefore, the judiciary was not independent. The law of evidence under Muslim law was
also very defective, unsatisfactory and of primitive in nature. For instance, to convict a
man for rape, it was necessary to have four witnesses who had actually seen the
accused in the very act of committing the offence (Halim, 2008, p. 51). The nature of
punishment of stoning was so cruel and inhuman that no human being could even think

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of it in a civilized society. Bangladesh as an independent state continued with inherited
institutions and legacies. The judicial system as outlined above is a replica of the system
introduced by British rulers, which were widely accepted in the original Constitution of
Bangladesh. Though, the higher judiciary is separated and independent from the
executive, however, lower judiciary is under the abdomen of Executive Branch. Similar to
the rulers of the early historical periods the government always attempts to control the
judiciary through different mechanisms, which include the appointment, tenure and
discipline of judges. Though, from the independence of Bangladesh Government under
various regimes committed to separate the judiciary from the executive but never be
implemented. In 1995, Masder Hossain along with 441 judicial officers who were judges
in different civil courts filed a writ (Writ Petition No. 2424) to the HCD regarding
separation of judiciary from the executive. However, lack of enthusiasm of political
government separation of judiciary from the executive and judicial independence was
hampered in Bangladesh. So the issue of separation of judiciary was the most
demanded and burning issue of Bangladesh. Finally, the historic journey of the judiciary
separated from the executive started functioning from 1 November 2007 through
implementing the Masdar Hossain case by the interim caretaker government headed by
Fakaruddin Ahmed. Now, the country is governed by the democratic multiparty
parliamentary system of government headed by Sheikh Hasina as a Prime Minister
(Chief Executive) of Bangladesh. Now, we the people of Bangladesh are expecting to
the latest elected government that they would be so cordial to implement the every rules
and regulations regarding separation of judiciary to play its role independently for
ensuring rule of law and fair justice in Bangladesh.

Conclusion :
Bangladesh has faced a judiciary with multiple powers and the independence of the
Judiciary in the country has tried to resolve such issues by ensuring not only in theory
but also in practice. The judgment of the Appellate Division of the Supreme Court of
Bangladesh in Masdar Hossain's case has made an important contribution to ensuring
the independence of judges of subordinate courts. More recently, significant
contributions have again been made by the Appellate Division through the Sixteenth
Amendment case affirming that Supreme Court justices are independent.

References:
Akkas, S.A. (2004), Independence and Accountability of Judiciary – A Critical Review,
Center for
Rights and Governance (CriG), Dhaka.
Ashrafuzzaman, Md. (2006), Laws Without Order & Courts of No Relief in Bangladesh,
Asian
Human Rights Commission, Hong Kong, available at: www.article2.org/mainfile.php/
0504/243/

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(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
Halim, M.A. (1998), Constitution, Constitutional Law and Politics: Bangladesh
Perspective, Rico
Printers, Dhaka.
Halim, M.A. (2008), Legal System in Bangladesh, CCB Foundation, Dhaka.
Huda, A.K.M.S. (1997), The Constitution of Bangladesh, 1st ed., Vol. II, Rita Court,
Chittagong.
Hussain, W. (1934), Administration of Justice During the Muslim Rule in India, 1st ed.,
Idarah-I
Adbiyat-I, New Delhi, Reprint in 1997.
Islam, M. (2003), Constitutional Law of Bangladesh, 2nd ed., Mullik Brothers, Dhaka.
Khan, I.S., Islam, S.A. and Haque, M.I. (1996),
Political Culture, Political Parties and the Democratic Transaction in Bangladesh,
Academic, Dhaka. Mootham, O. (1983),
The East India Company’s Sadar Courts: 1801-1834,
The Indian Law Institute, New Delhi.

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