The Judiciary: Supreme Court and Subordinate Court under Bangladesh Constitution

The Judiciary
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INTROUCTION

The articles 94 -116A are the 6th part of the constitution of people’s republic of Bangladesh which divided into 3 chapters. The judicial matters of supreme court and Subordinate courts are narrated here. The articles of chapter 1 explains the establishment of the supreme court, appointments of judges,  disabilities of judges after retirement, power and jurisdictions of the high court division and appellate division , rule- making power etc.  The Chapter 2 explains about the establishment of subordinate courts, appointments to subordinate courts, control and discipline and judicial officer’s functions. The articles are briefly highlighted below.

Supreme Court

According to the article 94 Of constitution, there shall be a Supreme Court for Bangladesh (to be known as the Supreme Court of Bangladesh) comprising the Appellate Division and the High Court Division. The Supreme Court shall consist of the Chief Justice, to be known as the Chief Justice of Bangladesh, and such number of other Judges as the President may deem it necessary to appoint to each division. The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division, and the other Judges shall sit only In the High Court Division.  Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.

According to article 94(1) of the constitution of people’s republic of Bangladesh, the supreme court consists of two divisions.

1) Appellate Division

2) High Court Division

Appellate Division

The Appellate Division is the Appellate Court of the Supreme Court, the highest court of Bangladesh.  The Appellate Division is an appellate court, which has jurisdiction to review the final judgment of the High Court Division. The present Chief Justice is Hasan Faiz Siddiqui.

Appellate Division has no original jurisdiction.  No case can be filed in this court as a court of first instance.

 The appellate division five types of jurisdictions. Such as:

1 Appellate jurisdiction:

The Appellate Division has the right to appeal, hear and dispose of the judgment, decree, order or sentence of the High Court Division.  The Appellate Division may issue necessary directions or orders.  Apart from this, the Appellate Division also has the power to review the judgment or order pronounced by the High Court Division.

2.  Advisory jurisdiction:

 According to article 106, appellate Division has advisory jurisdiction.  If the President seeks the opinion of the Supreme Court on an important matter, the Appellate Division sends its own opinion on the matter to the Preside

Opinions of appellate division:

 It may be noted that till 2019, two matters have been sent for the opinion of the Appellate Division under Article 106

For example:

 1.Whether MPs’ absence from Parliament for 90 sitting days will render their membership vacant ( Special Reference No. I of 1995, 47 DLR (AD) (1995) 111).

2. Mandatory trial of BDR insurgency accused persons under common law or military law ( Special Reference No. I of 2009, 15 BLC (AD) (2010) 1).

3. jurisdiction of Issuance of Warrant:

According to article 104, the Appellate Division may order a person to appear before the court and produce any documents if necessary for the administration of justice.

4. Rules making executive power

 The Appellate Division may, subject to laws made by Parliament, with the permission of the President make rules for the High Court Division and the Appellate Division and for regulating the rules and procedures of subordinate courts.

5. Review of judgment

According to article 105, the appellate division shall have power   to review any judgment pronounced or order made by it.    

In case of Mahbubur Rahman Sikder vs. Mujibur Rahman Sikdar, [37 DLR (AD) 145], Appellate division has power to review its own judgment acting on its own.                                               

The High Court Division

In the history of Bangladesh, the highest court of Bangladesh was high court which was first established on January 11, 1972 through the declaration of the Provisional Constitution of Bangladesh Order of 1972.The High Court was the highest court of Bangladesh until the constitution came into force. Later when the Constitution of the People’s Republic of Bangladesh came into force on December 16, 1972, under Article -94(1), The High Court Division is a Division of the Supreme Court.

Powers and Functions of High Court Division:

Under article -101, The High Court Division have both appellate and original jurisdiction and it have some powers, functions and jurisdictions which are well defined and determined under the Constitution and different ordinary laws. Hence, the powers and jurisdictions of the High Court Division can be divided in two categories.

1. Ordinary jurisdiction.

 2. Constitutional Jurisdiction.

1) Ordinary jurisdiction:

Any Jurisdiction conferred on the High Court Division by any laws which passed by the Parliament is its ordinary jurisdiction. Generally, ordinary jurisdiction can be of different types. such as:

a. Original Jurisdiction;

 b. Appellate jurisdiction;

 c. Revisional jurisdiction;

d. Reference Jurisdiction.

a. Original Jurisdiction:

 Original Jurisdiction is the jurisdiction of the HCD which means that it can take a suit as a court of first instance. If the Parliament enacts any law which states that the case of a particular matter shall be filed in the HCD as a court of first instance, then the HCD shall have original jurisdiction in that matter. For example, article 102 of the Constitution confers original jurisdiction on the HCD for the issue of writs. In addition, the Companies Act, 1913, Banking Companies Ordinance, 1962 and Admiralty Act, 1861, the HCD is the only court to enforce the fundamental rights of all the people of Bangladesh in the cases mentioned in these laws.

b. Appellate jurisdiction:

 HCD hears appeals from orders, decrees and judgments of subordinate courts and tribunals. A lower court or tribunal shall be subordinate to the High Court Division when it is subject to high court Divisions appellate or revisional jurisdiction. For example, section -408,410,417,417A of CrPC and section 96 of CPC conferred on the HCD the appellate jurisdiction.

c. Revisional jurisdiction:

High Court Division can examine the decision of its subordinate courts. For example, section -439 of CrPC and section – 115 of CPC has conferred on the HCD the revisional jurisdiction.

d. Reference jurisdiction:

 High Court Division can give opinion and order on any case which referred to it by any subordinate court. For example, section – 113 of CPC has conferred on the HCD the reference jurisdiction.

The above-mentioned jurisdictions have conferred on the HCD by various act of parliament.

2) Constitutional Jurisdiction:

Any Jurisdiction conferred on the High Court Division by the constitution is its ordinary jurisdiction. The Constitution has conferred on the High Court Division the following three types of jurisdictions:

a) Jurisdiction as to Superintendence and Control over Court under article 109 of the constitution;

b) Jurisdiction as to Transfer of Cases under article 110 of the constitution;

c) Writ Jurisdiction under article 102 of the constitution.

a) Jurisdiction as to Superintendence and Control:

Article 109 of the constitution states that the High Court Division may supervise and control all subordinate courts and tribunals. It’s a discretionary power of HCD. By this jurisdiction, the HCD may order to submits the necessary documents to the Subordinate Courts or Tribunals. The HCD can also supervise the Subordinate courts and tribunals whether they are working according to law or not, whether they are violating their limits or not, whether they are working within the authority or not.

b) Jurisdiction as to Transfer of Cases:

According to article 110 of the constitution the HCD may transfer a case from subordinate court to itself. But this case must be involved with a substantial question of law as to interpretation of the constitution and it must be involved with a point of general public importance. When a case is transferred to HCD, it shall withdraw the case from the subordinate court and it may dispose the case on following ways:

1. HCD may dispose the case itself; or

2. HCD may determine the question of law and give a judgment on such question and return the case to the subordinate court from which it has been so withdrawn with a copy of such judgment. The subordinate court shall, on receipt thereof, proceed to dispose of the case in conformity with such judgment.

3. HCD may determine the question of law and give a judgment on such question and transfer the case to another subordinate court with a copy of such judgment he subordinates court shall, on receipt thereof, proceed to dispose of the case in conformity with such judgment.

According to Section 24 of the Code of Civil Procedure and Section 526 of the Code of Criminal Procedure, the High Court Division can transfer a cases one subordinate court to another subordinate court to dispose of the case or can dispose of the case itself. It is a discretionary power of HCD.

c) Writ Jurisdiction:

Article 102 of the Constitution gives writ jurisdiction to the High Court.

According to English Bangla Dictionary (page-909), writ means provisions or orders promulgated by a court or appropriate authority. By such an order the court directs a person to do or refrain from doing something.

Who can file a writ petition?

As per Article 44 of the Constitution, filing a writ petition is also a fundamental right. Under Article 102(a) of the Constitution an aggrieved person can file a writ and under Article 102(b) any person can file a writ.

Types of Writs:

Under article 102 of the constitution, there are five types of writs in our constitution. Such as:

1) Writ of Habeas Corpus:

According to article 102(2)(b)(1) Habeas corpus means ‘you must have the body’. It is an order which issued by HCD to present the detente before the court. The HCD also order to check whether the arrest was lawful or not.

2) Writ of prohibition:

According to article -102(2)(a)(1), Where, in spite of having no jurisdiction, the person exercises or undertakes to act outside the jurisdiction or is going to violate the principles of natural justice in such a situation the High Court, by the jurisdiction of writ of prohibition, directs the said person, authority or the Tribunal to desist from the said act.

3) Writ of Quo Warranto:

According to article 102(2)(b)(2), If a person, without any authority, holds or appears to hold any public office, the High Court Division may issue a writ to show cause, seeking to know by what authority the person claims the said office.

4) Writ of mandamus:

when a person or authority is obliged to perform any legal duty but he refuses or fails to perform the said duty, then the court orders to perform the said duty by issuing a writ of mandamus Under article 102(2)(a)(1) of the constitution.

5) Writ of certiorari:

The term certiorari means to be informed or to be certified. According to article -102(a)(2), it is issued by the HCD to review the actions of the lower court or tribunal or authority. In the case of King vs Electricity Commission (1924), Lord Atkin said that Certiorari and prohibition are granted only where the executive has to perform judicial function.

Subordinate Court:

Judiciary is one of the three important organs of the state.  In the judicial structure of Bangladesh, the subordinate court system is an important stage in providing judicial services to the people. Most of the cases are filed in such courts according to their jurisdictions. Chapter 2 (Article 114-116A) of part 6 of the Bangladesh Constitution describes the mandates of subordinate courts. District and Session Judge Courts, Metropolitan Session Judge Courts, Chief Judicial Magistrate Courts, Metropolitan Magistrate Courts and other Special Courts and Tribunals functioning at local level are included under the subordinate courts.

Article 114 of the Constitution of Bangladesh mentions the establishment of lower courts.

[ According to article 114, Besides the Supreme Court, there shall be such other subordinate courts as may be established by law.]

Case Reference of Art. 115:

The constitutional implication of this Article is that the subordinate judiciary, unlike the Supreme Court of Bangladesh, is not a creature of the Constitution but of law. Secretary, Ministry of Finance Dhaka vs. Md Masdar Hossain and others, 52 DLR (AD) 82.

Article 115 states that the President shall make appointments to judicial posts or judicial as magistrates in accordance with the rules made by the President for that purpose.

[Article 115 was substituted by section 19 the Constitution (Fourth Amendment) Act, 1975 (Act No. II of 1975)]

The 4th Amendment made both the elements executive depended. because, Article 115 was amended to the effect that “appointments of persons to offices in the judicial service or as Magistrates exercising judicial functions shall be made by the President in accordance with the rules made by him in that behalf.”

Article 116 states that the control (including appointment, promotion and grant of leave) and discipline of persons appointed to the judiciary and magistrates shall be vested in the President and shall be exercised by the President in consultation with the Supreme Court.

[Substituted for the former article 116 by the Constitution (Fifteenth Amendment) Act, 2011 (Act XIV of 2011), section 32.]

Case Reference of Art. 116:

Not only when a person employed in the judicial service is promoted and or posted to another post in the judicial service, but also when such person is promoted and or posted to a post outside the judicial service, there is no scope from complying with the requirements of Article 116 of the Constitution. Aftab Uddin (Md) vs. Bangladesh, represented by Sectra Ministry of Establishment, Government of the People’s Republic of Bangladesh and others [48 DLR 1].

The amendment giving the president the power to have control over lower courts violates the basic structure of the constitution as the change impairs the independence of the lower judiciary, observed the Supreme Court in the 16th amendment case verdict.

According to the Supreme Court verdict, the independence of the judiciary is one of the basic structures of the constitution and parliament cannot bring any change that goes against it.

Article 116A states that, subject to the provisions of this Constitution, persons appointed to the judiciary and magistrates shall be independent in the exercise of judicial functions.

[Article 116A was inserted by section 21 of the Constitution (Fourth Amendment) Act, 1975 (Act No. II of 1975)]

By this substitution of the word ‘President’ for the words ‘Supreme Court’ in article 116, the independence of the lower judiciary has been totally impaired, curtailed and whittled down,”

“This amendment [Fourth Amendment], therefore, violates the basic structure of the Constitution and therefore this substitution of the word ‘President’ is in stark contradiction to the Constitution.”

It is clear from the above discussion that the entire judiciary has now come under the absolute grip of the President.  Now, he has power to appoint all person and magistrate who are appointed in the judicial service.

“The entire Judiciary, which has traditionally held a special position as a fundamental organ for the administration of the rule of law in every constitution of the subcontinent, has now been fully subordinated to the Executive.

“In words of Justice Abdur Rahman Chowdhury ‘if the government can select judges suitable to itself then that would be the end of the judicial system which is the last resort of the people against unconstitutional laws and arbitrary executive action. Experience, however, teaches us that while it is desirable to inject justice into politics, it will be disastrous to inject politics into justice. Once Judiciary becomes subservient to the executive and to the ruling party’s philosophy, no amount of enumeration of fundamental rights in the constitution can be of any avail to the citizens because the court of Justice would then be turned into courts of government.”

Appointment of Supreme Court Judges

  The appointment of Supreme Court Judges   in Bangladesh is given to the President under Articles 95 and 98 of the Constitution. But such power of the president ultimately falls in the hands of the Prime Minister during the political government as the President is required, under Article 48(3), to act in accordance with the advice of the Prime Minister in appointing judges, except Chief Justice, under Articles 95 and 98 of the Constitution. Although, conventionally chief Justice is consulted before appointing Supreme Court Judges, such requirement is neither mandatory, nor was often followed in recent decades.

We know that in case of appointment of judges in the higher judiciary, the requirements envisaged in Article 95(2) of our Constitution have to be fulfilled. Article 95(2) of our Constitution stipulates that “A person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and

(a) has, for not less than ten years, been an advocate of the supreme court; or,

(b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or

(c) has such other qualifications as may be prescribed by law for appointment as a judge of the supreme court.”

In accordance with the newly-inserted article 96(2) of the Constitution has restored the power to the parliament to impeach the judges of the Supreme Court followed by an order of the President. Article 96(3) has empowered the parliament to regulate the procedure by law.

According to Article 97 of the Constitution of Bangladesh, there are some reasons for temporary appointment of the Chief Justice.  Viz:

    1. If the post of Chief Justice is vacant.

    2. If the President is satisfied that the Chief Justice is unable to perform the functions of his office due to absence, illness or any other reason.

    These functions shall, until another person enters the said office, or until the Chief Justice resumes his duties, as the case may be, among the other Judges of the Appellate Division who is senior in office shall perform similar functions.

According to Article 98 of the Constitution of Bangladesh,

 if it appears to the President that the number of judges of a division of the Supreme Court should be temporarily increased, he may appoint one or more persons with appropriate qualifications as additional judges for a period not exceeding two years. or “if he thinks fit, may require a Judge of the high court Division to sit in the Appellate Division for any temporary period”. Notwithstanding the provisions of Article 94 (2) of the Constitution.

Provided that nothing in this Article shall prevent any person appointed as an Additional Judge from being appointed as an Additional Judge under Article 95 of this Constitution or from being appointed as an Additional Judge under the present Article for a further term.

According to Article 99 of the Constitution of Bangladesh,

(1) No person, after his retirement or removal from office, shall act as a Judge (except as an Additional Judge under the provisions of Article 98 of this Constitution) shall not act as an advocate before any Court or any Authority and shall not act in any Court and also shall not be eligible for appointment to any office of profit in the Republic except judicial or quasi-judicial posts.

(2) Notwithstanding anything contained in clause (1), any person who continues as a Judge of the High Court Division may, after his retirement or removal therefrom, plead or act before the Appellate Division.

In the case of Abdul Bari Sarkar vs. Bangladesh [46 DLR], – it was held as follows:

“Existing Article 99 is the result of an amendment made in 1976. Original Article 99 totally prohibited the appointment of a retired judge “in any office of profit in the service of Republic”. The purpose behind this prohibition was that the high position and dignity of a judge of the Supreme Court should be preserved and respected even after his retirement and, further that if any provision was made for holding of office, after retirement, then a judge, while in service of the Supreme Court might be tempted to be influenced in his decisions in favor of the Authorities keeping his eye upon a future appointment. This Article, after amendment, lifted the embargo partially making a retired Judge eligible for appointment “in a judicial or quasi-judicial office”. A Judicial or Quasi-Judicial Office pre-supposes independent dispensation of Justice.”

Reference:

[1] ‘Substituted by Section 32 of the Constitution (Fifteenth Amendment) Act, 2011 (Act No. 14 of 2011)

[2] Substituted by Section 33 of the Constitution (Fifteenth Amendment) Act, 2011 (Act No. 14 of 2011)

The seat of supreme court

The seat of supreme court is held on the article 100 part 6 of the Bangladesh constitution.

It states that ” 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. “

Here, we see a difference between supreme court and sessions of the high court Division’s permanent seat. Which are the permanent seats of supreme court and high court division shall always remain in the capital. But in case of sessions of high court division place or places can be held differently from time to time with the president’s approval. But there are no specific places given in article 100, still can be seated if the chief justice feels the necessary of the court.

After 1982, Marshall law declaration the high court division permanent seats were all over the country to give a clear justification of article 100 by the 8th amendment of 1988. There were six permanent seats and the power was given to the president by the official gazette. 

To justify the 8th amendment of article 100 of the Bangladesh constitution there is a known case named “Anwar Hossain Chowdhury Vs Bangladesh”. This amendment was void in appeal division under this case.  Because it was changing the basic structure of the Bangladesh constitution.

According to the article 100 of the Bangladesh constitution ‘ there was no chance for the sessions of high court division outside the capital without the president’s approval. But the 8th amendment has a declaration saying “there will be 6 permanent seats outside the capital”.  This amendment was violation the inseparable nature of the supreme court also changing the basic structure of the constitution. Finally, the amendment was rejected and the old one was in force again.

Other functions of Supreme Court:

1) According to article -107, The Supreme Court may, with the approval of the President, make rules to regulate the practice and procedure of each division and any subordinate court.

2) According to article -107, The Supreme Court may delegate the duties of Articles 113 and 116 to a Division of that Court or to one or more Judges.

3) According to article -108, the Supreme Court shall act as a Court of Record and shall have the power to order inquiry and sentence for contempt.

4) The HCD of Supreme Court can examine the decision of its subordinate court

Can the judiciary of Bangladesh work independently?

Through the Masdar Hossain case in 2007, as per Article 22, the state shall ensure the separation of the Judiciary from the Executive organs of the state. But in fact, the judiciary was not separated from the executive. Because the interference of executive branch in the appointment of Supreme Court judges still exists. Magistrate Courts are attached to the administration. Although various articles of the constitution provide freedom to the judges to give correct judgments but the judges cannot conduct a fair trial due to the interference of the executive branch.

What steps should be taken to ensure the independence of the judiciary?

To ensure the independence of the judiciary-

Executive and Judiciary should be separate and independent. To be independent, the judiciary should be completely free from political bias and competent and honest people should be appointed as judges.

Fairness must be ensured in every case of appointment of judges and removal of officials.

The provision of economic independence of judiciary should be ensured. Judges should be Provided adequate financial facilities. Judges should be barred from seeking employment after retirement.

Conclusion:

To sum up we can say the judiciary is the system of courts which adjudicates legal disputes and legal cases. The Supreme Court works so that the people of our country can get justice and can enjoy their fundamental rights properly. The Judiciary must act independently to establish justice to prevent all forms of injustice with the nation.


Prepared By-

  1. Tasriful Alam
  2. Md Imtiyas
  3. Daud Uj Zaman
  4. Sajjad Uddin Hasan Chowdhury
  5. Bappe Islam Kakon

BDLRP Team of BGC Trust university Bangladesh.

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