Court
Corridor
Court
System in Bangladesh: An overview
The
Constitution of Bangladesh provides there shall be one
Supreme Court of Bangladesh comprised of two divisions,
the Appellate Division and the High Court Division. The
Constitution further provides that the Supreme Court shall
be composed of the Chief Justice and such number of other
judges, as the President deems necessary to appoint. At
present there are 7 Judges of the Appellate Division and
72 Judges of the High Court Division. The Chief Justice
is, by tradition, the most senior judge who has not yet
attained the age of 67-the mandatory age of retirement
for all judges of the Supreme Court. His term lasts as
many months or years as his life span between the day
of appointment and his 67th birthday.
The
Appellate Division has jurisdiction to hear and determine
appeals from judgements, decrees, orders or sentences
of the High Court Division. An appeal to the Appellate
Division lies as of right where the High Court Division
(a) certifies that the case involves a substantial question
of law as to the interpretation of the Constitution; or
(b) has sentenced a person to death or for imprisonment
for life, or (c) has imposed punishment on a person for
contempt of that division; and (d) in such other cases
as may be provided for by Act of Parliament. In all other
cases appeal lies only if the Appellate Division grants
leave to appeal.
The
High Court Division of the Supreme Court, which sits in
Dhaka, has both original and appellate jurisdiction. It
also has what is known as provisional jurisdiction. Its
original jurisdiction extends to Admiralty and Company
matters and other matters that may be provided by Parliament.
It has special jurisdiction in writ matters for securing
and protecting fundamental rights, and for providing extraordinary
remedies not provide for in the lower courts. Challenges
to the constitutionality of legislation and administrative
orders are filed in the High Court Division. The High
Court Division's revisional jurisdiction can be exercised
in both civil and criminal matters originally heard before
the subordinate courts.
Below
the Supreme Court in the judicial hierarchy are subordinate
courts, which are maintained at the District level-a territorial
administrative unit. The Civil Courts Act established
civil courts comprising of District Judge, Additional
District Judge, Joint District Judge and Assistant District
Judge. The criminal justice system is regulated by Criminal
Procedure Code. The tiers of criminal court are enumerated.
Therein as Sessions Judge, Additional Sessions Judge,
Assistant Sessions Judges Civil Court is referred to as
the District Judge Courts, and criminal courts, are referred
to as the Courts of Sessions. Though the nomenclature
is different the same judge function as District and Sessions
Judge or in other words same judge discharge functions
of civil and criminal courts. Bangladesh is divided into
64 Districts and there are 61 District Courts. The District
and Sessions Judge has both original appellate and revisional
jurisdiction in civil and criminal matters.
Out
of 64 districts, the 3 districts of the former Chittagong
Hill Tracts have a different Court system because those
were administered under CHT Regulation Act 1900. Under
the Regulation the Deputy Commissioner (district administrator)
discharged the function of a civil court of first instance.
Orders passed by the Deputy Commissioner were appeal able
before the Divisional Commissioner sitting at the city
of Chittagong. Against the order of the Divisional Commissioner
the High Court Division had revisional jurisdiction. The
Deputy Commissioner is also the District Magistrate. In
such capacity he exercised jurisdiction in criminal matters.
The Divisional Commissioner was the Ex officio Session
Judge in respect of the criminal matters.
The
Hill District Council Act was enacted in 1989 for the
3 Hill Districts namely Rangamati, Khagrachori and Bandarban.
Under the regulation Act of 1900 as well as under the
new Act on public demand this civil judiciary is being
extended to the hill districts.
The
Additional District Judge hears those cases assigned to
him from the District Judge. It is at the Assistant Judge
level that civil cases will generally enter the system.
In addition, there are specialised courts and tribunals,
ranging from income tax to labour courts. There are approximately
760 members of the subordinate judiciary.
On
the criminal side, most cases are initially tried before
magistrates, although by statute the Sessions Judge has
original jurisdiction to try these criminal matters attracting
higher conviction. There are approximately 1300 magistrates
in Bangladesh; of these approximately 600 perform judicial
work in the criminal courts. Magistrates are not required
to be law graduates and may have received little or no
formal legal training. They are under the supervision
and control of the Ministry of Establishment (civil service),
and the Supreme Court does not have any involvement in
their selection or supervision. The magistrates, while
discharging judicial functions, are now posted and supervised
by the Supreme Court.
The
control of the judges' career path, including the power
of appointment, posting, promotion, grant of leave, and
discipline has been vested in the President. Notwithstanding
that the Supreme Court maintains all records of a judge's
career and activities for supervision and evaluation purposes,
in practice it as been the Ministry of Law that controls
the career of the judges. The issue of separation of the
judiciary from the executive organ of the state has been
the subject of litigation that finally ended in December
1999 with a clear Appellate Division judgement requiring
that the administration of the judiciary be separated
from the executive. To date, the job remains to be accomplished.
One of the thorny issues is how to treat the approximately
600 magistrates who are performing judicial work; and
to whom their control and supervision shall be assigned
and how and at what level would they be absorbed.
For
the High Court Division of the Supreme Court, judges are
appointed by the President for an initial term of two
years and if their performance is satisfactory they may
be confirmed. Judges of the Appellate Division are elevated
from the High Court Division. In all judicial appointments,
there is a requirement of consultation with the Chief
Justice of Bangladesh. As a matter of practice and not
as requirement, approximately 2/3 of the High Court Judges
come from the Bar and 1/3 are appointed from the lower
judiciary.
Courtesy:
Odhikar.
