THE LEGAL SYSTEM OF

BANGLADESH

A Comparative Study of Problems and

Procedure in Legal Institutions.

MD. ABDUL HALIM

Barrisler-at-Law (Lincoln's Inn)
LLM. (Newcastle-uoon-Tyne)
1X.B. (UniversityofTondon)
L.L.B.. U..M. (Dhaka University)
Advocate, Supreme Court of Bangladesh
 CONTENTS

Chapter-I
LAW AND LEGAL SYSTEM 31-36
What is Law? 31
Law and Politics 31
Law and Rights 32
Principal Categories of Law 33
Legal System , 33
Public Law and Private Law . 34
Substantive and Procedural Law 35
Laws in Bangladesh " 36

Chapter-II '
HISTORICAL DEVELOPMENT OF COURTS 37 - 76
Hindu Period: Ancient Indian Judicial System 37
Organisation of Court Structure
Judicial Procedure
Trial by Ordeal
Trial by Jury
Crime and Punishment

Muslim Period: Judicial System in Medieval India 41

Legal System under the Sultanate 42
Courts at the Centre
Provincial Courts
District Courts
Parganah's Courts
Village Courts

Legal System under the Mughal Administration 45

Court at the Centre
Provincial Courts
District Courts
Parganah's Courts
Village Courts
Crime and Punishment in the Mughal Administration
Defects of Muslim Administration of Justice
 IX

British Period: Modernisation of Ancient Indian Law 52

First Period: Early Administration of Justice 52

Second Period: The Era of Mayor's Court 53

Charter 1726 and its Judicial Organs . .
Charter 1726 and its Defects
Charter 1753 and its Judicial Organs
Charter 1753 and its Defect

Third Period: The Era of the Supreme Court (From the

Regulating Act of 1773 till the Unification in 1861) 58
Structure of Judicial Organs
Defects with the Supreme Court

Fourth Period: Era. of Unification (From 1861 till the

Independence in 1947) 61
Unification
Judicial System after Unification
Regular Hierarchy of Civil and Criminal Courts
The Era of the Federal Court and the High Court
Structure of the Legal System after the Government of India
Act. 1935
Independence and the Aftermath

Development of Judicial System in Mufassil Areas 68

Warren Hasting's Judicial Plan of 1772
Reform by Lord Corwallis (1787-1793)
Reform by Lord Hastings (1814)
Reform by Lord Bentick (1828-1835)

Pakistan Period 76

Chapter-Ill
STRUCTURE AND FUNCTIONING OF COURTS IN
BANGALDESH: THE SUPREME COURT 77-95
Introduction 77
The High Court Division: Powers and Functions 79
Ordinary Jurisdiction
Original Jurisdiction
 Appellate Jurisdiction
Reference Jurisdiction

Constitutional Jurisdiction of the High Court Division 80

Writ Jurisdiction 80
Habeas Corpus
Mandamus
Prohibition
Certiorari
Distinction between Certiorari and Prohibition
Quo Warranto
Various Writs in Article 102 of the Constitution

Supervisory Jurisdiction 88
Nature of the Power
Difference between Writ Power and Supervisory Power

Jurisdiction as to Transfer of Cases 90

Nature of the Power

The Appellate Division: Powers and Functions 91

Appellate Jurisdiction
Jurisdiction as to Issue and Execution of Process
Jurisdiction as to Review
Advisory Jurisdiction

Chapter-IV
STRUCTURE AND FUNCTIONING OF COURTS IN
BANGALDESH: SUBORDINATE COURTS UNDER GENERAL
HIERARCHY 96-119
Constitutionalisation of Subordinate Courts and
the Controversy over their Independence 96
Drafting the Constitution and the Question
of Separation of the Judiciary 98
Law Commission's Recent Report on Separation of Judiciary 100
Five Point Directions in the Masder Hossain Case 103
Subordinate Civil Court under General Hierarchy 105
5 Types of Civil Courts
Pecuniary Jurisdiction
 X)

Appeals- Wherefrom and to which Court

Administrative/ Transferred Jurisdiction
The Court of the District Judge ' i
The Court of the Additional District Judge
The Court of the Joint District Judge
The Court of the Senior Assistant Judge
The Court of the Assistant Judge
Exclusivencss of Civil and Criminal Matters

Subordinate Criminal Courts in General Hierarchy 111

5 Types of Criminal Courts
The Court of Sessions Judges and their Jurisdiction
The Court of Assistant Sessions Judges and their Jurisdiction
The Magistrates Courts 114
Metropolitan Magistracy
Regular Magistracy
District Magistrates
Additional District Magistrates
Sub-Divisional Magistrates
Thana Magistrates
Special Magistrates
Justices of the Peace

Jurisdiction of the Magistrates Courts _ 117

General Power of Trial and Awarding Sentence 117
Special Power of Trial and Awarding Sentence 118
Appeals from the Magistrates Courts 119

Chapter-V
STRUCTURE AND FUNCTIONING OF COURTS IN
BANGALDESH: TRIBUNALS AND SPECIAL COURTS120-143
Tribunals • 120
Difference between Court and a Tribunal .121
Different Types of Trihunals 123
Control by the Court of Tribunals 123
Special Constitutional Administrative Tribunals 124
• Constitutionalisation of Administrative Tribunals
Drawbacks in Constitutionalisation
Establishment of Administrative Tribunals
XI1

Subsequent Developments
Constitution of Administrative Tribunals
Jurisdiction of Administrative Tribunals
Constitution and Jurisdiction of Administrative Appellate
Tribunal

Other Regular Tribunals 130

Tribunals under the Customs Act, 1969
Tribunals under the Income Tax Ordinance, 1984
Tribunals" under the Industrial Relations Ordinance

Special Tribunal under the Special Powers Act, 1974 137

Appeals from the Special Tribunal
Subordination of the High Court Division

Special Courts 140

Small Causes Court
Family Courts
Village Courts

Chapter-VI
CRIMINAL PROCEEDINGS 144-161
Nature of a Criminal Proceedings 144
Stages of a Criminal Proceedings 145
Pre-Proceeding Stage 145
FIR or Complaint
Reporting to the Magistrate
Investigation and Case Diary
Final Report or Charge Sheet
Naraji Petition

Proceeding Stage 151

Taking Cognizance
How Cognizance is taken
Start of a Criminal Proceeding
Transfer if required by law

Trial Stage 153'

Trial in the Magistrates Courts 153
 XIII

Pre-trial Hearing and Discharge

Framing of Charges
Plea and Conviction
Hearing or taking Evidence
Acquittal
Sentence and Transfer for Sentence

Trial in the Sessions Court 156

Opening of the Case
Pre-trial Hearing and Discharge
Framing of Charges
Plea and Conviction
Prosecution Evidence
Acquittal
Defence Evidence
Closing Speech or Argument
Judgment

Post-Trial Stage 159

How is Sentence imposed? 160

Chapter-VII
CIVIL PROCEEDINGS 162-173
Nature of a Civil Proceeding 162
Stages in a Civil Proceeding 163
Pre-Proceeding Stage 163
Proceeding Stage 164
Issue of Plaint
Issue of Process
Service of Summons
Return of Summons and Filing of Written Statement
. Alternative Dispute Resolution (ADR)
First Hearing
Framing of Issues
Settling of date for Hearing (SD)

Trial Stage 168

Opening of UK case
Peremptory Hearing and Examination in Chief
XIV

Cross Examination and Re-examination

Argument

Judgment 171
Pronouncement of Judgment
Decree or Order .

Enforcement and Execution 171

Application
Hearing
Show Cause Notice for Execution
Procedure after Notice
Mode of Execution

• Distinctions between Civil and Criminal Cases 173

Chapter-VIII
BAIL AND POLICE POWER OF ARREST AND REMAND 174-186
Bail 174
What is Bail?
Bail under the provisions of the CrPC
Stages of a Bail Petition
Cancellation of Bail •
Bail Bond and Surety , ,
Who can be Sureties?
Discharge of Sureties
Bail without executing Bond
Bail Bond and Cash Security
Bailable and Non-Bailable Offence •
Right of Bail in Bailable Offence
Right of Bail in Non-Bailable Offence
Bail by the Police
Interim or Ad-interim Bail
Anticipatory Bail (Bail before Arrest)
Bail to an under-trial Prisoner

Police Power of Arrest and Remand 179

Abuse of Police Power of Arrest
Police Remand. Use of Force and Extortion of Information
 XV

Application for Remand and Abuse of Power

High Court Division's Decision on Police Remand etc 183

Chapter-IX
APPEAL, REVIEW AND REVISION 187-194
Appeal 187
General Rules as to Appeal 187
Civil Appeal 188
Criminal Appeal 188
Revision 189
Criminal Revision 189
Conditions of Criminal Revision 190
Nature of Civil Revision 191
Conditions of Civil Revision . . . . . . . . 191
Distinction between Appeal and Revision 191
Inherent Power of the HCD/561A and Revision 192
Reference , 193
Criminal Reference 193
Civil Reference 193
Review 194
Chapter-X
LEGISLATION 195-212
What is Legislation 195
Legislation Classified 195
Supreme or Ordinary Legislation 196
Subordinate Legislation 197
Special Executive Legislation 197
Masder Hossain Case and the President's Rule making power 199
Status of Order, Rule and Regulations 200
Distinction between Delegated Legislation and Special
Executive Legislation 202
Subordinate Legislation is details 202
Subordinate Legislation in the USA 203
Delegated Legislation in the UK 207
Conditions of Delegated Legislation 207
Subordinate Legislation in Bangladesh 208
Sources of Delegating Power under the Constitution
XVI

of Bangladesh 209
Need for Control of Delegated Law 210
Control over Delegated Law 210
Control over Delegated Law in Bangladesh 211
Chapter-XI
JUDICIAL PRECEDENT OR REASONING 213-250
Elements of Judicial Precedent 213
Ratio Decidendi and Obiter Dicta 215
Discovering Ratio and Obiter 216
More than one Reasons 217
Single Judgment and Multiple Judgment Approach 217
Reserved Judgment 217
Hierarchy of Courts 218
Judicial Precedents in Individual Courts in the UK 219
The Court of Justice of the European Communities
The House of Lords
The Court of Appeal
Divisional Courts
The High Courts
The Crown Courts
County Courts and Magistrates Courts
The Privy Council

Judicial Precedents in Individual Courts in Bangladesh 221

The Appellate Division
The High Court Division ' '
The District Judge, Additional District Judge
The Session Judge
The Magistrates Court
The Administrative Appellate Tribunal

Exceptions to Precedents 222

Distinguishing
Reversing
Overruling
Overruling by Implication
Retrospective Overruling
Bad effect of Retrospective Overruling
 XVII

Prospective Overruling
Decision on Compromise or Concession
Decision per incuriam
Decision sub silento
Decision of the Privy Council
Precedent and Code: Common Law and Civil Law

Law Reporting 228

All England Law Reports
Tabular Form of Law Reports in the UK
Example from the All England Law Reports
Example from the All India Law Reports
Example from the Dhaka Law Reports
Law Reports in Bangladesh
The way a case is reported in the UK
The way a case is reported in Bangladesh
Tracing of Unreported Cases

Precedent and Article 111 of the Constitution 243

The Law Declared

The Opinion of the Supreme Court under Article 106

Obiter Dicta of the Supreme Court

Controversy over Declaratory the Realistic Theory

of the Doctrine of Precedent 246
Position of the Supreme Court of Bangladesh and India

Authoritative and Persuasive Precedent 248

Merits and Demerits of the Doctrine of Precedent:
Stepping-stone or Halting Place? 248

Chapter-XII
STATUTORY INTERPRETATION 251-268
Rules of Statutory Interpretation 252
,; The Literal Rule
The Golden Rule
The Mischief Rule
The Order of the three Rule's "
xvm

Gap Filling Role of the Judges " 255

Purposive Approach and Continental Legislation 257
Beneficial Construction 257
Construction to prevent evasion or abuse 258
Retrospective and Prospective Interpretation 259
Gap Filling Role of the Supreme Court of Bangladesh 259
Instances from Law Reports in Bangladesh 260
Knowing Statutes .261
Consolidating Statute
Codifying Statutes
Different parts of a Statute
Examples from Statutes • • • :
An Act of the British Parliament "
'An Act of the Bangladesh Parliament

Chapter-XIII
LEGAL AID IN BANGLADESH
Legal Aid and its International aspect
Legal Aid in Bangladesh
Legal Aid through NGOs
^Legal Aid in the CPC
The Performance of the National Legal Aid
'The Provisions of the Legal Aid Act, 2000
National Legal Aid Organisation
National Legal Aid Management Board
District Legal Aid Committee
Upzilla and Union Legal Aid Committee
The Fund of the Board ' •
Panel Lawyers '
Who are eligible for Legal Aid?
Application for Legal Aid
Areas covering Legal Aid -

Defects in the Legal Aid Act and Challenges before

the Legal Aid Scheme • 278
Lack of Awareness
Lack of Monitoring
Absence of Legal Aid Support Cell
 XIX

Absence of Legal Aid Committees in Thana and Upzilla

Ceiling of the means of the Litigants
Incidental Costs
•Advance Payment
Embargo of five years experience
Complicated Procedure
Lack of cooperation among three Legal Aid Agencies
Choice of Lawyer by the Client

Chapter-XIV
THE LEGAL PROFESSION 284-298
Legal Profession 284
History of Legal Profession in the Sub-Continent 284
Unified Bar in the Independent Bangladesh 286
Division within the Unification 287
The Bar Council , 287
Constitution of the Bar Council .
Status of the Bar Council
Power and Functions of the Bar Council
Committees of the Bar Council
The Bar Association 290
Conditions of Enrolment 291
Enrolment of Advocates in General
Primary Conditions . ' . . ' . .
Secondary Conditions
Enrolment of Advocates to Practise in the HCD
Primary Conditions
Secondary Conditions ^. ;
The Tribunal and Disciplinary Proceedings 295
List of Advocates and Bar Associations in Bangladesh 296

Appendix: Civil Courts Act 1887 299