The Evolution of Bangladesh’s Court Structure: How far have we come?
Mohammad Anisul HaqueEmran
This article seeks to give a brief discussion on the entire judicial system with regards to the court structure of Bangladesh. The purpose of this discussion is to visualize mostly every court of the country. This article has tried to outline the jurisdiction of the proceedings of the courts. The aim is to show the transformation from the very early period – including the British era and the Pakistani era – to the concurrent court system of Bangladesh, with reference to the independence of judiciary. In present days, after two landmark decisions by the Appellate Division of the Supreme Court of Bangladesh in Secretary, Ministry of Finance vs. MdMasdar Hossain &Ors52 DLR (AD) 82 and Government of Bangladesh &Ors vs. Advocate AsaduzzamanSiddique/&Ors2017 CLR (SpL), we have reasons to believe that the judiciary is independent, not only in theory but in practice as well.
This discussion under consideration gives the historical and contemporary perspectives of the judiciary of Bangladesh. It outlines the history of the judicial system of the country, linking it with the independence of judiciary and focuses on the transformation of the judiciary till date. The independence has brought a change in the proceedings of the judicial system of Bangladesh. There have subsequently been other remarkable changes in the judiciary afterwards but to understand the coexistent system, it is important to have a look at the history of our judicial system.
In this article, the discussion in relation to our judiciary in the British era and Pakistani era has been shown. It has also elaborated the initial stage of the judiciary of Bangladesh after independence and eventually talks about the concurrent judicial system of the country.
JUDICIARY IN THE BRITISH PERIOD
The British period began in the year 1757, with consolidation of the British power in Bengal, and continued till the year 1947. To understand the judicial system of that era it is important to understand different Charters, the administration of justice and the development of the authority of the East India Company. In 1757, the British grasped the reign of power by defeating the Nawab of Bengal in the Battle of Plassey. Subsequently, they did not just start administering the revenue and civil justice, but also took over the right to administer criminal justice. The new judicial plan that came under effect from 11th April 1780 separated the revenue from the judicial functions.
It is important to note that during the British rule, there was a demand to have a separate judiciary from the executive. However, the British administration did not do it, thinking that it would go against their colonial interest. The issue of the separation of judiciary was raised before the Parliament in 1919, but it was not discussed by stating that this matter should be dealt and kept within the jurisdiction of the provincial government. Resolution on separation of judiciary was passed in the year 1921 in the Bengal Legislative Assembly and a committee was formed in this regard.
There was effort on making a new pattern on the functioning of the judicial administration. There had been several measures taken to improve the judiciary but they were not free from defects.Although the effort showed that they tried to improve, but at the end of the day, the executive and judicial powers were vested in one hand and the duties and powers of Collector, Deputy Commissioner, Magistrate and Government agent were combined.
JUDICIARY OF THE PAKISTAN PERIOD
In the year 1947, the Pakistan period began in contemporary Bangladesh when the Indian Sub-continent was partitioned into two independent states, India and Pakistan. Bangladesh was part of Pakistan as a separate province. As such, the judicial system consisted of the Supreme Court (which was the federal appellate court), High Courts and two sets of subordinate courts, namely civil and criminal courts.
However, the English legal system was more or less retained in the Pakistan era and the country used to run in accordance to the provisions of the Government of India Act 1935, along with the Indian Independence Act 1947, before Pakistan had its Constitution. It is imperative to note that the Constitution of Pakistan was adopted in 1956 but the Constitution, unlike the Government of India Act (Sections 253-256) and the Constitution of India (Articles 233-237), did not had any provision for ‘subordinate courts’ or ‘magistracy’ which were regulated by the Code of Civil Procedure and the Code of Criminal Procedure.The appellate jurisdiction of the Privy Council was abolished by the Privy Council (Abolition of Jurisdiction) Act, 1950 to enlarge the jurisdiction of the Supreme Court created under the new Constitution.
The East Pakistan Provincial Assembly in 1957 passed the Code of Criminal Procedure (East Pakistan Amendment) Act that dealt with separation, but the Act was never given effect. The Law Commission recommended bringing the judicial magistrates under the control of the High Court in 1958. Again, recommendation was made by the Law Commission to give effect to the Criminal Procedure Code Act 1957, but nothing was done till 1972. An overhauling amendment was made in the Code of Criminal Procedure through the Code of Criminal Procedure (East Pakistan Amendment) Act 1957, with a view of separating the judicial and executive functions of the magistrates.
During the period of Pakistan, the state of judiciary did not change much from that of the British era. Although the apex courts were separate from the executive but the subordinate courts, the criminal courts in particular, were under the control of the executive. The civil servants appointed at executive positions exercised judicial functions in the criminal courts. This sums up the fact that Pakistan period retained the system that was introduced in the late British period.
JUDICIARY OF BANGLADESH
The People’s Republic of Bangladesh is a unitary, independent and a sovereign state. Bangladesh achieved its independence in the year 1971 and subsequently adopted the Constitution in the year 1972. According to Article 22 of the Constitution, the state shall ensure the separation of judiciary from the executive branch of the government.
- Early stage
The highest court of Bangladesh just after independence was the High Court established under the High Court of Bangladesh Order 1972. It consisted of a Chief Justice and as many as other judges that may be required to be appointed. Thereafter, an Appellate Division was established which consisted of the Chief Justice and two other judges appointed by the President after consultation with the Chief Justice. The Supreme Court took over the High Court, which was established under the Constitution of Bangladesh. The Supreme Court is the highest court of the land, below which there are subordinate courts and tribunals sitting throughout the country.
- Current Judicial System
The judiciary of Bangladesh currently consists of the apex court and the subordinate courts. The apex court is known as the Supreme Court of Bangladesh, which comprises of the Appellate Division and the High Court Division. There are two sets of subordinate courts which are the civil courts and the criminal courts. There are however, some special courts created by virtue of various special laws such as the small causes court, family court, financial loan court, special tribunal, court of special judge and administrative/administrative appellate tribunal, etc.
- Supreme Court of Bangladesh
The Supreme Court of Bangladesh is the highest court of the land which comprises of the Appellate Division and High Court Division, respectively. It was established under the Constitution of Bangladesh with Chapter I of Part VI of the Constitution dealing with the Supreme Court. It is important to understand that these two Divisions are ‘distinct and separate’ from each other and separate appointments are made for each Division. The Supreme Court must always have a Chief Justice, who shall be known as the ‘Chief Justice of Bangladesh’ and the President may appoint to each Division as many judges as he sees fit. Upon the advice of the Prime Minister, the President fixes the number of judges of the Supreme Court. The Supreme Court shall have its permanent seat at the capital (i.e. Dhaka); however, sessions of the High Court Division may be held at such other place or places as the Chief Justice may appoint from time to time, subject to the approval of the President. As of December 2019, the Appellate Division has 7 judges including the Chief Justice and the High Court Division consists of 101 judges.
- Appellate Division
The jurisdiction of the Appellate Division of the Supreme Court of Bangladesh is to ‘hear and determine appeals’ against the ‘judgments, decrees, orders or sentences’ passed by the High Court Division. They has the power in any cause or matter pending before it, to issue directions, orders, decrees and writs as may be necessary for doing complete justice. It has been empowered to review any judgment pronounced or order made by them. They also has an advisory jurisdiction, where it appears to the President that a ‘question of law’ has arisen or is likely to arise, the nature of which is of such public importance that it is ‘expedient’ to take the opinion of the Supreme Court, he may refer it to the Appellate Division that ‘after such hearing as it thinks fit, reports its opinion thereon to the President’.
- High Court Division
The jurisdiction of the High Court Division can be divided in four major heads – Civil Jurisdiction, Criminal Jurisdiction, Constitutional or Writ Jurisdiction and Special Statutory Jurisdiction, respectively. By virtue of the special original jurisdiction, the High Court Division has the authority to enforce fundamental rights of the citizens and has been empowered to issue certain orders or directions in the nature of writs of prohibition, mandamus, certiorari, habeas corpus and quo warranto. They exercise special and statutory original jurisdiction, appellate jurisdiction, revisional jurisdiction, admiralty jurisdiction and miscellaneous jurisdiction under several other laws.
- Subordinate Courts
There are various subordinate courts and tribunals which have civil, criminal and special jurisdiction below the High Court Division of the Supreme Court of Bangladesh. It is important to note that after the landmark decision of the Masdar Hossain case and the subsequent amendment of the Code of Criminal Procedure, ‘the lower judiciary was separated from the clutches of the executive’. However, the term ‘executive magistrate’ still appears in the Code of Criminal Procedure; it has been argued that as their function is only administrative in nature, they are no longer given any judicial functions. Another imperative issue in this regard is that the executive magistrates were still vested with some judicial powers by virtue of the Mobile Court Act 2009. The High Court Division has very recently declared it unconstitutional, mentioning that the Act is ‘directly in conflict with the spirit of the judgment’ in the Masdar Hossain case. However, the Appellate Division has stayed the order of the High Court Division and the matter is pending before the Appellate Division.
After 2007, the laws for the lower judiciary in regards to the separation of judiciary and the newly formed Judicial Service Commission are Bangladesh Judicial Service Commission Rules 2007; Bangladesh Judicial Service Commission (Pay-Commission) Rules 2007; Bangladesh Judicial Service (Service, Constitution, Appointment to the Service, Suspension, Dismissal and Removal) Rules 2007; Bangladesh Judicial Service Commission (Posting, Promotion, Grant of Leave, Control, Discipline and other Condition of Service) Rules 2007; Code of Criminal Procedure (Amendment) Act 2009; and the Mobile Court Act 2009.
The current nature of the courts and structure of the subordinate judicial system, with reference to the above mentioned laws that are currently predominant in the country are outlined below.
- Ordinary Courts of Civil Jurisdiction
Suits of civil nature are generally adjudicated in the civil courts. These courts are concerned with deciding rights disputed between a subject and the state or between one individual and the other. The civil courts subordinate to the High Court Division, according to section 3 of the Civil Courts Act 1887, are classified as the Court of the District Judge, the Court of the Additional District Judge, the Court of the Joint District Judge, the Court of the Senior Assistant Judge and the Court of the Assistant Judge.
- Court of District Judge
The Court of District Judge is the principal court that exercises the administrative control over all civil courts at the district level, that is, within the local limit of its jurisdiction. The Court of District Judge has original, appellate and revisional jurisdiction, in respect of all suits within the district.
However, it does not usually try original suits but by virtue of Special Acts, it is the only competent court to try few cases relating to insolvency, guardianship, probation, administration, etc.
In the appellate jurisdiction, a District Judge hears and determines some appeals against the judgments, decrees and orders of the Joint District Judge where the original suit shall not exceed the limit of Five Hundred Thousand Taka. The District Judge, however, is empowered to hear and determine appeals against all judgments and orders of both the Senior Assistant Judges and Assistant Judges within the limit. The limit was increased to Fifty Million Taka in the year 2016, which was stayed by the High Court Division. As a result, the limitation has remained to Five Hundred Thousand Taka till the disposal of this matter before the court.
The District Judge has the revisional jurisdiction to any decision of his subordinate courts where there is no scope of appeal, and that the subordinate courts have committed an error of law. The District Judge has the authority to call for the records and make order as he thinks fit in this regard.
- Court of Additional District Judge
In spite of receiving appeal from the inferior courts, the jurisdiction of the Court of Additional District Judge is similar to that of the Court of District Judge. Generally, Additional District Judge tries cases that are transferred to him from the Court of District Judge. The Additional District Judge exercises the same power as the District Judge in discharging such functions.
- Court of Joint District Judge
The Court of Joint District Judge exercise both original and appellate jurisdiction. Where the limits of the pecuniary jurisdiction of Court of Senior Assistant Judges are crossed, such cases are filed in the Court of Joint District Judge. The Joint District Judge’s jurisdiction extends to all original suits without any pecuniary limit. The Joint District Judge is empowered to hear and determine appeals against judgments, decrees or orders of the Senior Assistant Judges and Assistant Judges when such appeals are transferred to them by the District Judge.
- Court of Senior Assistant Judge
The court of Senior Assistant Judge is a court of original jurisdiction and revisional jurisdiction. The cases are filed in the Court of Senior Assistant Judge when the pecuniary jurisdiction of Assistant Judge exceeds. The maximum limit of pecuniary jurisdiction of Senior Assistant Judge is Four Hundred Thousand Taka. The pecuniary jurisdiction of this court was amended in 2016 to Twenty Five Hundred Thousand, which has been stayed by the High Court Division. This has resulted to keep the limitation to Four Hundred Thousand Taka till the matter is resolved.
- Court of Assistant Judge
The Court of Assistant Judge is the lowest grade of the subordinate civil courts and has the original jurisdiction and revisional jurisdiction. Civil suits are generally field in the in the Court of Assistant Judge unless barred by the pecuniary jurisdiction. The pecuniary jurisdiction extends to the suits of which value does not exceed to Two Hundred Thousand Taka. The amendment in 2016 made the pecuniary limit to Fifteen Hundred Thousand Taka that was stayed by the High Court Division. As such the limitation is Two Hundred Thousand Taka till the matter is resolved. The Court of Assistant Judge has recently been authorized with revisional powers in petty civil matters coming from village courts and dispute resolution boards.
- Ordinary Courts of Criminal Jurisdiction
The criminal cases are tried in the criminal courts and there are two types of criminal courts – the Court of Sessions and the Magistrate’s Court.
- Courts of Sessions
There are 64 session divisions having a Court of Sessions in every district for administering the criminal justice system of Bangladesh. The Court of Sessions is presided by a Sessions Judge, Additional Sessions Judge and Joint Sessions Judge. In the Metropolitan area, the Court of Sessions is called the Metropolitan Court of Sessions. Practically, the appointment of the Sessions Judge, Additional Sessions Judge and Joint Sessions Judge are made to the persons who act as the District Judge, Additional District Judge and Joint District Judge of the civil courts.
- The Sessions Judge
In the Court of Sessions, the Sessions Judge can exercise four types of jurisdiction – original, appellate, revisional and transferred jurisdictions. For criminal cases, the Sessions Judge is the principal Judicial Officer in the district concerned. Generally, the Sessions Judge has the power to impose full range of penalties subject to law, including the death penalty. However, when a penalty of death is passed by a Sessions Judge, it shall be confirmed by the High Court Division.
- The Additional Sessions Judge
The power and role of the Additional Sessions Judge is similar to the power of the Sessions Judge. However, it is important to note that the Assistant Sessions Judges are not empowered by themselves to hear cases or receive or admit appeal or revision from an inferior court. They can only try cases or hear appeal or reviseonly which the government directs them or if the case had been transferred or given over to them by the Court of Sessions.
- The Joint Sessions Judge
The Joint Sessions Judge only has the original jurisdiction. They can exercise their original jurisdiction by passing any sentence authorized by law but not a sentence of death or imprisonment where the term exceeds ten years.
- Court of Magistrates
According to the Code of Criminal Procedure 1898, there are two classes of magistrates – Executive Magistrates and Judicial Magistrates. Executive Magistrates are part of the Executive organ and Judicial Magistrates are part of the Judiciary.
There are four types of Judicial Magistrates, which are Chief Metropolitan Magistrate in Metropolitan area and Chief Judicial Magistrate outside Metropolitan area; Magistrate of the First Class who shall be known as a Metropolitan Magistrate in the Metropolitan Area; Second Class Magistrate; and Third Class Magistrate.
- Courts of Chief Metropolitan Magistrate and Chief Judicial Magistrate
The Chief Judicial Magistrate is the first of the four kinds of Judicial Magistrate specified under section 6 (3) of the Code of Criminal Procedure 1898, and is the equivalent of the Chief Metropolitan Magistrate in the metropolitan area, mentioned in the same provision.
This provision also explains that Chief Judicial Magistrate and Chief Metropolitan Magistrate shall include ‘Additional Chief Judicial Magistrate’ and ‘Additional Chief Metropolitan Magistrate’. It means that the Additional Chief Judicial Magistrate and the Additional Chief Metropolitan Magistrate are empowered to sentence as same as the Chief Judicial Magistrate and Chief Metropolitan Magistrate.
They are empowered to try all offences not punishable with death. It is also important to note that a Magistrate specially empowered under section 29C of the Code of Criminal Procedure 1898 are authorized by law to pass any sentence, but not a sentence of death or imprisonment for a term that exceeds seven years. The Chief Judicial Magistrate hears the appeal from a sentence passed by any Magistrate of Second Class and Third Class.
- Courts of Metropolitan Magistrates and Magistrates of the First Class
The Metropolitan Magistrate is the Magistrate in the Metropolitan area who is equivalent to the First Class Magistrate outside Metropolitan area. They are empowered to impose imprisonment for a term not exceeding five years, solitary confinement as authorized by law and fine not exceeding ten thousand taka. The appeals from any sentence passed by the Magistrates of First Class lies to the Court of Sessions.
- Courts of Magistrates of the Second Class
There is generally no magistrate of such kind in the Metropolitan area and they are subordinate to the Court of Chief Judicial Magistrate. The Magistrates of the Second Class are empowered to impose imprisonment for a term not exceeding three years, solitary confinement as authorized by law and a fine not exceeding five thousand taka. The appeal from a sentence passed by the court of Magistrates of the Second Class lies to the Chief Judicial Magistrate.
- Courts of Magistrates of the Third Class
The Magistrate of Third Class is subordinate to the Court of Chief Judicial Magistrate and there is no Magistrate of Third Class in the Metropolitan area. The Magistrates of the Third Class are empowered to impose imprisonment for a term not exceeding two years and a fine not exceeding two thousand taka. The appeal from a sentence passed by the court of Magistrates of the Third Class lies to the Court of Chief Judicial Magistrate.
- Courts and Tribunals of Special Jurisdiction
There are a number of courts and tribunals of special jurisdiction apart from ordinary courts established by different laws. Some of these special courts or tribunals are the Small Causes Court, the Family Court, the Financial Loan Court, Special Tribunal, Court of Special Judge, Administrative Tribunal/Administrative Appellate Tribunal, Labour Court, Labour Appellate Tribunal, Dispute Resolution Board, Village Court, Juvenile Court, and etc. In the year 2009, the International Crimes Tribunal was set up to prosecute the suspects of the war crimes committed in the genocide during the Bangladesh Liberation War.
The discussion made above ensures that there has been a regular administration of the judiciary from the ancient times. It can be seen that several attempts had been made from the very early period to ensure administration of justice; but is also worth noting that the issue of independence of judges and their accountability was not stable. There has always been some kind of interruption from the executive organ to control the judiciary from the very early stage. The contemporary Bangladesh has also faced much fusion of powers as well, and the country has tried to resolve such issues by making sure that the judiciary is independent, not only in theory, but also in practice. The judgment by the Appellate Division of the Supreme Court of Bangladesh in the case of Masdar Hossain has made significant contributions to make sure that the judges of the subordinate courts are independent. Very recently, remarkable contribution has again been made by the Appellate Division through the Sixteenth Amendment case to make sure that the judges of the apex courts are independent.
 The writer is an Associate at Israfil& Associates: The Law Counsel. Prior to his joining in this law firm, he was a trainee at Dr. Kamal Hossain & Associates. He holds an LLB (Hons) degree from the University of Northumbria and an LLM degree from the University of Asia Pacific.
 Dr. S. M. Hassan Talukder, Independence of Judiciary in Bangladesh: Law and Practice(Bangladesh Law Research Centre, 2nded , 2013) 39
 Ibid, 42
Sarkar Ali Akkas, Independence and Accountability of Judiciary: A Critical Review (Centre for Rights and Governance, 2004) 74
Md Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective (CCB Foundation, 9thed, 2017) 372
 Supra 6, 82
 T G Dugvekar, ‘The Problem of Separation of Judicial from Executive Functions’, in Verinder Grover (ed) (1989), Courts and political process in India, (Deep & Deep Publications, New Delhi, 1989) 563
 Supra note 2, 60
 Supra note 7, 373
 Supra note 2, 61
 Supra note 7, 373
 Supra note 7, 373
 Supra note 6, 86
 The Constitution of Bangladesh, 1972 Art 1
 The Constitution of Bangladesh, 1972 Art 22
 High Court of Bangladesh Order, 1972 s2
 High Court of Bangladesh Order, 1972 s3
 High Court of Bangladesh (Amendment) Order, 1972 s3
 The Constitution of Bangladesh, 1972
 Supra note 6, 87
 The Constitution of Bangladesh, 1972 Art 94 (1)
 The Constitution of Bangladesh, 1972 Part VI
 Supra note 2, 74
 The Constitution of Bangladesh, 1972 Art 94 (2)
 M Jashim Ali Chowdhury, An Introduction to the Constitutional Law of Bangladesh (Book Zone Publication, 3rded, 2017) 439
 The Constitution of Bangladesh, 1972 Art 100
 The Constitution of Bangladesh, 1972 Art 103 (1)
 The Constitution of Bangladesh, 1972 Art 104
 The Constitution of Bangladesh, 1972 Art 105
 The Constitution of Bangladesh, 1972 Art 106
 The Constitution of Bangladesh, 1972 Art 101
 The Constitution of Bangladesh, 1972 Art 102
Supra note 6, 89; See also Important among those laws are the Admiralty Court Act 1997, Bank Company Act 1990, Code of Civil Procedure 1908, Code of Criminal Procedure 1898, Companies Act 1994, Contempt of Court Act 1926, Income Tax Ordinance 1984 and Industrial Relation Ordinance 1969.
Secretary, Ministry of Finance vs. Masdar Hossain &Ors 25 DLR (AD) 82
 Code of Criminal Procedure 1898
 Supra note 2, 76
 Code of Criminal Procedure 1898
 Mobile Court Act, 2009
AshutoshSarkar, ‘Executive magistrate-led mobile court illegal’, The Daily Star, 13 May 2017.
 Supra note 2, 76
 Civil Courts Act, 1887 s3 (As amended by the Civil Courts (Amendment) Act, 2001)
 Supra note 2, 77
 Civil Courts Act 1887 s21 (1)
 Civil Courts Act 1887 s21 (2)
 Civil Courts (Amendment) Act 2016 s4 (3)
 Staff Correspondent, ‘HC stays trail of civil cases at lower court involving Tk 2 Lakh to Tk 5 Cr’, The Daily Star, 16 June 2016.
 Code of Civil Procedure 1908 s115(2)
 Code of Civil Procedure 1908 s115(2)
 Civil Courts Act 1887 s8
 Civil Courts Act 1887 s18
 Civil Courts Act 1887 s21 (4)
 Civil Courts Act 1887 s19 (2)
 Civil Courts (Amendment) Act s4
 Supra note 61
 Civil Courts Act 1887 s19 (1)
 Supra note 61
 Village Courts Act 2006; BirodMimangsha (PouroAlaka) Board Ain 2009
 Code of Criminal Procedure 1898, s 7
 Code of Criminal Procedure 1898, s 9 (1), 9 (3)
 Code of Criminal Procedure 1898, s 9 (1)
 Supra note 6, 92
 Supra note 2, 80
 Code of Criminal Procedure, s 31 (2)
 Code of Criminal Procedure, s 193,
 Code of Criminal Procedure 1898, s 31 (3)
 Code of Criminal Procedure 1898, s 6 (2)
 Code of Criminal Procedure 1898, s 6 (3)
 Code of Criminal Procedure 1898, s 6 (3)
 Supra note 2, 80
 Code of Criminal Procedure 1898, s 29C
 Code of Criminal Procedure 1898, s 33A
 Code of Criminal Procedure 1898, s 407
 Code of Criminal Procedure 1898, s 32 (1) (a)
 Code of Criminal Procedure 1898, s 408
 Code of Criminal Procedure 1898, s 32 (1) (b)
 Code of Criminal Procedure 1898, s 407
 Code of Criminal Procedure 1898, 32 (1) (c)
 Code of Criminal Procedure 1898, s 407
MariekeWierda and Anthony Triolo, ‘Resources’ in Luc Reymonds, Jan Wouters and Cedric Ryngaert (eds), International Prosecutors (OUP 2012) 169
Secretary, Ministry of Finance vs. MdMasdar Hossain &Ors52 DLR (AD) 82
Government of Bangladesh &Ors vs. Advocate AsaduzzamanSiddique&Ors2017 CLR (SpL)