What are the constitutional jurisdictions of High Court Division of the Supreme Court? Explain & Illustrate.

 

The legal system of Bangladesh is based in part on English common law. Bangladesh seceded from Pakistan in December 1971. The British-era legislation applied in Pakistan after 1947 and post-partition legislation enacted in Pakistan continued to form the basis of Bangladeshi personal status laws, but legal developments since 1972 have been distinct.

Islamic family law is applied through the regular court system. The judiciary is organized at two levels, with subordinate courts and a Supreme Court with Appellate and High Court Divisions. The Family Courts are the courts of first instance for personal status cases of all religious communities, although different religious communities are governed by their own personal status laws. The jurisdiction and functions of these courts are governed by the Family Courts Act 1985.[1] Jurisdiction is limited to civil suits, and any criminal offences that arise in the context of civil cases come under the jurisdiction of Criminal or Magistrates Courts.

The constitution provides for an impartial and independent judiciary. After the 1982 coup, the constitution was suspended, martial law courts were established throughout the country, and Lieut. Gen Ershad assumed the power to appoint judges. The constitution was reinstated in November 1986.[2]

 The Judiciary of Bangladesh:

The Judiciary of Bangladesh consists of a Supreme Court, subordinate courts and tribunals. The Supreme Court of Bangladesh comprises the Appellate Division and the High Court Division.[3] It is the apex Court of the country and other Courts and Tribunals are subordinate to it.

 The Appellate Division:

The Appellate Division shall have Jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division. It has rule making power for regulating the practice and procedure of each division and of any Court subordinate to it. Chancery Research and Consultants Trust (CRC-Trust) maintains a website Chancery Law Chronicles-First ever Online Database of Bangladesh Laws where it has already included 4500 judgments of the Appellate Division and High Court Division of the Supreme Court of Bangladesh from 1972 to till date.

 The High Court Division:

The High Court Division, though a Division of the Supreme Court, is for all practical purposes, an independent court with its powers, functions and jurisdictions well defined and determined under the Constitution and different laws. It has both appellate as well as original jurisdiction. It hears appeals from orders, decrees and judgments of subordinate courts and tribunals. It has original jurisdiction to hear Writ Applications under article 102 of the Constitution, which is known as extra ordinary constitutional jurisdiction. It has further original jurisdiction, inter alia, in respect of company and admiralty matters under statutes. The High Court Division, in special circumstances, has also powers and jurisdiction to hear and dispose of cases as the court of first instance under article 101 of the Constitution. The High Court Division shall have Superintendence and control over all Courts and tribunals subordinate to it.[4]

  High Court of Bangladesh:


High Court originated historically from the High Court’s Act of 1861.[5] The High Courts Act of 1861 provided for one High Court at each presidency of British India. The former Supreme Court and Sadar Adalat were replaced by the High Court. The High Court dispensed justice according to a uniform system of civil procedure codecriminal procedure code and Penal Code. The High Court of Calcutta had all Bengal jurisdictions even after the partition of Bengal in 1905. Under the Government of India Act of 1935 every province got a High Court and a Federal Court at the centre.

Under the Indian Independence Act, the constituent assembly of Pakistan got the powers and functions of the Indian central legislature under the Government of India Act (1935).[6] This Act, which became the Pakistan (Provisional Constitution) Order, provided a High Court in each of the provinces of British India. Now East Bengal, as a province of Pakistan, got a High Court in Dhaka, the capital of the province. The Constituent Assembly amended the Act of 1935 in 1954 and provided that every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any government within these territories writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari or any of them (Section 223A).

The High Court Division shall have such original, appellate and other jurisdiction, power and functions as are or may be conferred upon it by the Constitution of Bangladesh.

 Constitutional jurisdictions of High Court:

“The jurisdiction of the High Court is very wide. Its jurisdiction can be divided under the heads, viz. and original, appellate and other jurisdiction. Its jurisdiction extends to both civil and criminal matters besides the constructional and other responsibilities. It hears appeals from orders, decrees and judgments of subordinate courts and tribunals. The High Court Division, in special circumstances has also powers and jurisdiction to hear and dispose of cases as the court of first instance under article 110 of the constitution.”[7]

The Chapter-I contains article 94 to 113. Article 94 relates to the setting up of the Supreme Court of Bangladesh comprising the Appellate Division and the High Court Division and that Bangladesh. [8]

 Establishment of Supreme Court :

(1) 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.

(2) 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.

(3) 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.

(4) Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.[9]

101. Jurisdiction of High Court Division:

The High Court Division shall have such original, appellate and other jurisdictions, powers and functions as are or may be conferred on it by this Constitution or any other law.

“According to article – 101 of the constitution the High Court Division shall have original and appellate jurisdiction and such other jurisdiction as may be authorized by law. So the source of power or jurisdiction of the High Court Division can be divided in two categories.

(A)   Ordinary jurisdiction.

(B)   Constitutional Jurisdiction.

A. Ordinary jurisdiction:

Ordinary jurisdiction means the statutory jurisdiction. It refers such kind of jurisdiction that is conferred on the High Court Division by any ordinary law other than the constitution which may be of the following types:

a. Original Jurisdiction;

 b. Appellate jurisdiction;

 c. Revisional jurisdiction;

d. Reference Jurisdiction.

a. Original Jurisdiction:

“Original Jurisdiction means a court power to hear and decide a matter as the first instance before any other court where it can take a case or suit as court of first instance. It is for the ordinary laws to prescribe what particular matter will come under original jurisdiction of the High Court Division.

b. Appellate jurisdiction:

Any statutory law may confer on the High Court Division Appellate jurisdiction on any matter.

c. Revisional jurisdiction:

Revision means re examination or careful review for collection or improvement. By applying this power the High Court Division re examinees the decisions of its subordinate courts.

d. Reference jurisdiction:

Reference means the act of sending a case to the higher authority for information or decision. So reference jurisdiction means the power where by the High Court Division can give opinion and order on a case referred to it by any subordinate court.”[10]

“B. Constitutional Jurisdiction:

 Constitutional Jurisdiction refers to the jurisdiction of the high court division which is conferred by the constitution itself not otherwise. The constitution itself has conferred on the High Court Division the following three types of jurisdiction:

1.     Writ Jurisdiction.

2.     Supervisory Jurisdiction.

3.     Jurisdiction of transferring cases. ” [11]

“102. Powers of High Court Division to issue certain orders and directions, etc.
  (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution.

(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-

(a) on the application of any person aggrieved, make an order-

(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or

(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any person, make an order-

(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person holding or purporting to hold a public office to show under whatauthority he claims to hold that office.

 

 

(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

 

(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of-

(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work; or

 

(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorized by him in that behalf) has been given an opportunity or being heard, and the High Court Division is satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-clause (b). (5) In this article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defense services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.”[12]

 

 “109. Superintendence and control over courts

The High Court shall have superintendence and control over all courts subordinate to it.”[13]

“110. Transfer of cases from subordinate courts to High Court Division
  If the High Court Division is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, or on a point of general public importance, the determination of which in necessary for the disposal of the case, it shall withdraw the case from that court and may-

 

 

(a)    either dispose of the case itself; or

 

 

(b) determine the question of law and return the case to the court from which it has been so withdrawn (or transfer it to another subordinate court) together with a copy of the judgement of the division on such question, and the court to which the case is so returned or trnasferred shall, on receipt thereof, proceed to dispose of the case in conformity with such judgement” [14]

  Conclusion:

From the above discussion we can understand that constitutional jurisdictions of High Court Division of the Supreme Court very strong and powerful. Though it is a division of Supreme Court it has power to a lot of activities independently. All the power come thorough well defined constitutional law. It has control over all the subordinate court and tribunals.

 “The Supreme Court of Bangladesh comprises of the Appellate Division and the High Court Division. It has rule making power for regulating the practice and procedure of each division and of any Court subordinate to it. On the other hand The High Court Division is for all practical purposes, an independent court with its powers, functions and jurisdictions well defined and determined under the Constitution and different laws. It has both appellate as well as original jurisdiction. It hears appeals from orders, decrees and judgments of subordinate courts and tribunals. It has original jurisdiction to hear Writ Applications under article 102 of the Constitution, which is known as extra ordinary constitutional jurisdiction. It has further original jurisdiction, inter alia, in respect of company and admiralty matters under statutes. The High Court Division, in special circumstances, has also powers and jurisdiction to hear and dispose of cases as the court of first instance under article 101 of the Constitution. The High Court Division shall have Superintendence and control over all Courts and tribunals subordinate to it.”[15]

  Bibliography:

  • Part VI, The Judiciary, Chapter 1 – The Supreme Court. Retrieved From the website http://www.pmo.gov.bd/pmolib/constitution/part6.htm.
  •  Md. Abdul Karim “The court (High Court Division)” retrieved from the website http://www.lawyersnjurists.com/articles-and-assignment/reference-jurisdiction-of-supreme-court-and-evaluation/.
    • The Constitution of The People’s Republic of Bangladesh
    • Law of Bangladesh. Retrieved from http://en.wikipedia.org/wiki/Law_of_Bangladesh#The_High_Court_Division
    • Supreme Court of Bangladesh. Retrieved from http://123.49.57.252/index.php?visit=servicecharter/page
    • Bangladesh Peoples Republic of. Retrieved from http://www.law.emory.edu/ifl/legal/bangladesh.htm
    • Bangladesh – Judicial System. Retrieved from http://www.nationsencyclopedia.com/Asia-and-Oceania/Bangladesh-JUDICIAL-SYSTEM.html.

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[1] Retrieved from http://www.law.emory.edu/ifl/legal/bangladesh.htm.Bangladesh Peoples Republic of. Accessed on November 11, 2011.

[2] Retrieved from http://www.nationsencyclopedia.com/Asia-and-Oceania/Bangladesh-JUDICIAL-SYSTEM.html. Bangladesh – Judicial System. Accessed on November 11, 2011.

 

[3] Retrieved from http://en.wikipedia.org/wiki/Law_of_Bangladesh. Law of Bangladesh. Accessed on November 11, 2011.

[4] Please see the footnote 3.

[5] Retrieved from  http://www.banglapedia.org/httpdocs/HT/H_0114.HTM. BANGLAPEDIA- National encyclopedia of Bangladesh. Accessed on November 11,2011.

[6] Please see the footnote 5.

 

[7] Justice Siddiqur Rahman Mia “Practice and procedure of criminal trial in Judicial Magistrate court and sessions court.” P-26 Para-2. Retrieved from http://www.lawyersnjurists.com/articles-and-assignment/reference-jurisdiction-of-supreme-court-and-evaluation/ on November 11,2011.

[8] Retrieved from http://123.49.57.252/index.php?visit=servicecharter/page. Supreme Court of Bangladesh. Accessed on November 11,2011.

[9]Retrieved from  http://www.pmo.gov.bd/pmolib/constitution/part6.htm. Part vi – The Judiciary. Accessed on November 11,2011.

[10] 6. Abdul Halim & NE Siddique “The Legal System of Bangladesh after Separation.” P-115, Para-Last and P-116 Para-1st , 2nd & 3rd. Edition: May’2010.; university publication. Retrieved from http://www.lawyersnjurists.com/articles-and-assignment/reference-jurisdiction-of-supreme-court-and-evaluation/ on November 11,2011.

 

[12] Retrieved from  http://www.pmo.gov.bd/pmolib/constitution/part6.htm. Part vi – The Judiciary. Accessed on November 11, 2011.

[13] Please see the footnote 12.

[14] Please see the footnote 12.

[15] Retrieved from http://www.lawyersnjurists.com/articles-and-assignment/reference-jurisdiction-of-supreme-court-and-evaluation/. Reference Jurisdiction of Supreme Court and Evolution. Accessed on November13, 2011.