On independence, the Government of India Act 1935 was retained as a provisional Constitution. As a consequence, the legal and judicial system of the British period continued, of course, with due adaptations and modifications, where necessary, to suit the requirements of the new Republic.
The judicial system of Bangladesh has a known history of over thousands of year. The present judicial system of Bangladesh has been evolved as a result of gradual process during the different period of Indian history. Legal history of Bangladesh can be divided under four important periods, i.e., Hindu period, Muslim period, British period and after independence.
During ancient times, the justice system was connected with religion and with social norms. The king (raja) was the supreme head of the legislative, executive and judiciary branches. The various sources of law relied upon by the kings at that time were shrutis, smritis, puranas, dharmashastras, etc. The Arthashastra and Manusmritiwere considered authoritative legal guidance. Hindu period extended for nearly 1500 years.
Muslim period started with the first major invasion by Muslims in 1100 A.D. The Muslim emperor followed the laws of the Holy Quran, Sunnah, Ijma and Qias. During Muslim period the civil administration of Sultanate and head of highest court was Sultan. The Sultan was assisted by two reputed Muftis. During Muslim period the Court was regulated by two Muslim Codes, namely- Fiqh-e-Firoz Shah and Fatwa-i-Alamgiri.
British period begins with the consolidation of the British power in the middle of the eighteenth century and last for nearly two hundred years. Grant of Charter of 1661 by Charles II empowered the East India Company to administer the people who lived in the Company’s factories or trading centers at the three presidency towns namely- Madras, Bombay and Calcutta, both civil and criminal justice according to English law. The Charter of 1668 authorized the Company to make laws, orders, ordinances and constitutions for the good governance of the island of Bombay. By dint of Charter of 1686, the Company in 1687 was authorized to establish a municipality and a Mayor’s Court at Madras to try the civil and criminal cases in their territories. Similar courts were established in successive presidencies at Bombay and Calcutta. The story of India’s modern judiciary begins with the Mayor’s courts which were established in the presidency towns of Calcutta, Madras and Bombay in 1728 under charter of 1726 by king Gorge-I to try all civil actions. The Charter also provided that in each presidency town, the Governor and five senior members of the Council will have criminal jurisdiction and would be justices of the Peace and provisions for filling of the appeals from the then India to the Privy-Council in England was introduced by the Charter. The charter establishing the Supreme Court of Judicature at Fort William was issued in 1774 in pursuance of Regulating Act 1773. During the period of 1834 to 1861, two sets of courts were administering justice in India. The king’s Court and Company’s Court formed the dual system of courts having their separate jurisdiction. After the Judicial Committee Act, 1833, the Privy Council came to be called the Judicial Committee of the Privy Council.
The Mutiny in 1857 necessitated rethinking on the administration of India and reorganization of the law of courts. In 1858 the East India Company was abolished and the assumption of direct responsibility of the Government of India by the Crown made the problem of uniting the two sets of courts much easier. As a result, Indian High Court Act, 1861 was passed. The act of 1861 empowered the Crown to establish by Letters Patent, High Courts of Judicature at Calcutta, Madras and Bombay abolishing the Supreme Courts and the Courts of Sadar Diwani Adalat and Sadar Nizamat Adalat. The Government of India Act, 1915 was passed by British Parliament which provided for the constitution, jurisdiction and powers of the High Courts.
Under the Provisions of the Government of India Act, 1935 a Federal Court was established in India in 1937 having power to hear appeals from the decisions of the High Courts. But the said appellate power was limited to the interpretation of laws vis-a-vis the Government of India Act and did not affect the jurisdiction of the Privy Council to hear appeals from the decisions of the High Courts on merit.
The High Court of Bengal (Order) 1947 promulgated under the provisions of section 9 of the Indian Independence Act, 1947 providing for establishing a separate High Court for East Pakistan as the High Court of Judicature of East Bengal at Dhaka.
Under the provision of the Federal Courts Order 1947, Federal Court of Pakistan was established in Karachi under the provisions of the Privy Council (Abolition of Jurisdiction) Act, 1950. The jurisdiction of Privy Council to appeals was taken away and the same power was vested in the Federal Court of Pakistan. With the coming into operation of the Constitution of the Islamic Republic of Pakistan, 1956 the Supreme Court of Pakistan was established in place of Federal Court as Apex Court of the country.
After independence of Bangladesh in 1971 the Acting President promulgated the Laws Continuance Enforcement Order, 1971 by which all laws that were in force in Bangladesh on 25th March, 1971 continued to be so in force. At present we have about 740 Acts, 507 Ordinances and some Regulations in Bangladesh.
This way, neither any vacuum occurred nor did any break result in the continued operation of the legal system. The judicial structure remained the same. The Lahore High Court continued to function and so did the Sindh Chief Court and the Courts of Judicial Commissioner in NWFP and Baluchistan. A new High Court was set up at Dhaka. Similarly, a new Federal Court for Pakistan was also established. The powers, authority and jurisdiction of the Federal Court and High Courts, as prescribed in the Government of India Act 1935, remained intact. The Government of India Act 1935 was amended in 1954 with a view to empower the High Courts to issue the prerogative writs. The subsequent Constitutions i.e. 1956, 1962 and 1973 did not drastically alter the judicial structure or the powers and jurisdiction of the superior courts. The changes effected were, renaming the Federal Court as the Supreme Court by the 1956 Constitution and the upgradation of the Chief Court of NWFP and Judicial Commissioner Court of Baluchistan into full-fledged High Courts, by the 1973 Constitution. Later on, a new Court called, Federal Shariat Court was created in 1980 with jurisdiction to determine, suo moto or on petition by a citizen or the Federal or a provincial Government, as to whether or not a certain provision of law is repugnant to the injunctions of Islam.
Superior Judiciary:
The Constitution of Pakistan deals with the superior judiciary in a fairly comprehensive manner and contains elaborate provisions on the composition, jurisdiction, powers and functions of these courts. The Constitution provides for the “separation of judiciary from the executive” and the “independence of judiciary”. It entrusts the superior courts with an obligation to “preserve, protect and defend” the Constitution. The qualifications of Judges, their mode of appointment, service conditions, salary, pension, etc are also laid down in the Constitution. The remuneration of judges and other administrative expenditures of the Supreme Court and High Courts are charged on the Federal/Provincial Consolidated Fund, which means it may be discussed but cannot be voted upon in the legislature. The Constitution also provides for the grounds as well as forum and procedure for the removal of judges of the superior courts. The Supreme Judicial Council, consisting of the senior judges of the Supreme Court and High Courts, on its own or on a reference made by the President, may recommend the removal of a Judge on the ground of misconduct or physical or mental incapacity. Thus, the Constitution ensures the freedom, independence and impartiality of the superior judiciary.
The Supreme Court and High Courts have recently been given a degree of financial autonomy. This measure followed the Supreme Court ruling in the case of Government of Sind v Sharaf Faridi. The Court held that the independence of judiciary also means the elimination of financial control of the Executive over the judiciary, and therefore, the Chief Justice of the Supreme Court and High Courts should be authorised to make re-appropriation of funds within the budgetary allocation, without the approval of Finance Ministry. The Court went on to elaborate that the Chief Justices would thus be competent to re-appropriate amounts from one head to another and may also create or abolish posts and upgrade or downgrade the same. This ruling came during the course of interpretation of Article 175(3) of the Constitution, which provides that “judiciary shall be separated progressively from the Executive within 14 years”. The Court held that as per such constitutional mandate, the functions of magistracy should be bifurcated and the judicial magistrates must be placed under the administrative control of the High Court. The Court fixed the 23rd of March 1994 as the last date for carrying out this measure. In its order dated 24th January 1996 on the review petition, the Supreme Court extended the said date to 23rd March 1996 and reiterated that separation must be effected by the due date and added that no request for further extension in time will be entertained. Consequently, through appropriate amendments in law, judicial magistrates were placed at the disposal of High Courts. Later, the Supreme Court in the cases of Al-Jehad Trust v Federation and Asad Ali v Federation further interpreted various provisions in the Constitution and clarified the procedure and qualifications for appointment to the Supreme Court and High Court and appointment of the Chief Justices of the said courts.
Supreme Court:
The Supreme Court is the apex Court of the land, exercising original, appellate and advisory jurisdiction. It is the Court of ultimate appeal and therefore final arbiter of law and the Constitution. Its decisions are binding on all other courts. The Court consists of a Chief Justice and other judges, appointed by the President. An Act of Parliament has determined the number of judges. The number fixed at the moment is 17. Currently, the Court is working with full strength. Further, 2 Ad hoc Judges have also been appointed for one year. A person with 5 years experience as a Judge of a High Court or 15 years standing as an advocate of a High Court is eligible to be appointed as Judge of the Supreme Court. The standing practice is that the Chief Justice recommends a list of names to the President and the President selects Judges from the said list. The recommendation of the Chief Justice is binding on the President, except for sound reasons to be recorded by the President. Similarly, the most senior judge is appointed as the Chief Justice, except for concrete and valid reasons to be recorded by the President.
The Court exercises original jurisdiction in inter-governmental disputes, be that dispute between the Federal Government and a provincial government or among provincial governments. The Court also exercises original jurisdiction (concurrently with High Courts) for the enforcement of fundamental rights, where a question of ‘public importance’ is involved. The Court has appellate jurisdiction in civil and criminal matters. Furthermore, the Court has advisory jurisdiction in giving opinion to the Government on a question of law.
The Court appoints its own staff and determines their terms and conditions of service. The Supreme Court (Appointment of Officers and Servants and Terms of Service) Rules 1982 prescribe the qualification for and mode of appointment and promotion of staff together with penalties and procedure for disciplinary proceedings against them. The Court may also frame its own rules of procedure. The Supreme Court Rules 1980 laid down detailed procedure for the filing of petitions and appeals and their processing through the Court.
As compared to the practice elsewhere in the world, particularly the United States and United Kingdom where fewer cases reach the apex Court, the Supreme Court of Pakistan deals with cases far beyond its capacity to deal with. Its jurisdiction, original as well as appellate, is fairly wide. Besides entertaining civil and criminal appeals from the High Courts, the Court also hears appeals from the judgments against the Federal Shariat Court, Service Tribunals and some special courts. The Court also entertains cases of violation of Fundamental Rights under its original jurisdiction [Art 184(3)]. Besides being deputed to act as special court/tribunal, the judges are also engaged as members of enquiry commissions. As a consequence, there is always some pending work to dispose of. On 1st February, 2007, a total of 10914 cases were pending in the Supreme Court. Approximately 13000 – 16000 cases (both petitions and appeals) are annually filed in the Court. Besides, around 30,000 applications/letters are annually received under Article 184(3) of the Constitution and processed by the Court. Obviously, the Court has a heavy workload. It raises the question as to whether the Court can devote adequate time and serious attention to important cases, involving the interpretation of law and the Constitution; ensure their timely disposal through sound reasoning and quality judgment, as is expected of an apex Court. There is a need, thus, to ponder whether or not the jurisdiction of the Court should be restricted to important and serious cases.
There is no system of adequate research assistance being made available to the Court so as to facilitate the judges in their research assignments concerning the clarification/elaboration of a legal provision or interpretation of the Constitution. Such a measure will undoubtedly help in improving the quality of judgment and facilitate in correct interpretation of law.
To facilitate the litigant public and ensure prompt disposal of cases, the Court, except in very important cases, generally operates through benches. Benches have been constituted, and are functional, almost round the year. Besides its Principal Seat at Islamabad, there are 4 Branch Registries, one at each provincial metropolis. Whereas the constitution of Benches and their operation in various cities facilitates the public and ensures prompt disposal of cases, this system does affect the quality of judgments and deprives the Court of collective wisdom, so very vital for the apex Court, dealing with important issues and principles. There is, therefore, perhaps a need to re-examine the wisdom of bench system. This is however not possible with the present workload and rising trend of institution of cases, due to wider jurisdiction of the Court.
High Courts:
There is a High Court in each province. Each High Court consists of a Chief Justice and other puisne judges. The strength of Lahore high Court is fixed at 50, High Court of Sindh at 28, Peshawar High Court at 16 and High Court of Baluchistan at 9. The Chief Justice is appointed by the President in consultation with the Chief Justice of Pakistan and other judges, in consultation with the Chief Justice of Pakistan, Governor of the Province and the Chief Justice of the concerned High Court. Qualifications mentioned for the post of a Judge are, 10 years experience as an advocate of a High Court or 10 years service as a civil servant including 3 years experience as a District Judge or 10 years experience in a judicial office. The standing practice for the appointment of Judges of High Courts is that initially the Chief Justice of the concerned High Court prepares a list of candidates which is submitted to the President through the Governor of the province and Chief Justice of Pakistan. The President finally selects Judges from the said list. The recommendation of the Chief Justice of Pakistan and Chief Justice of the High Court is binding on the President, except for sound reasons to the contrary. The most senior judge would have legitimate expectancy of being appointed as the Chief Justice except for concrete and valid reasons, to be recorded by the President.
The Court exercises original jurisdiction in the enforcement of Fundamental Rights and appellate jurisdiction in judgments/orders of the subordinate courts in civil and criminal matters. A large number of cases are pending in various High Courts. In the Lahore High Court, a total of 75,195 cases, in the High Court of Sindh, 27,291 cases, in Peshawar High Court, 13,610 cases and in the High Court of Balochistan, 2445 cases were pending on 1st January 2007. The Court supervises and controls all the courts subordinate to it. It appoints its own staff and frames rules of procedure for itself as well as courts subordinate to it.
An extremely controversial provision in the Constitution has been the transfer of a judge from one High Court to another without his consent or after consultation with the Chief Justice of Pakistan or Chief Justices of the concerned High Courts. The original 1973 Constitution made such a transfer subject to such consent as well as consultation. A proviso added by the Constitution (Fifth Amendment) Act 1976 empowered the President to order such transfer for a period not exceeding one year, and the President Order No. 14 of 1985 extended such period from one to two years. Similarly, Article 203-C(4) of the Constitution, added by the Constitution (Amendment) Order 1980, also provides that a judge of a High Court may be transferred to act, for up to two years, as a judge of the Federal Shariat Court, and in the event of refusal, shall be deemed to have retired from the service. Eversince such amendments, the transfer provisions had been the subject of intense criticism, and rightly so, as the provisions were seldom used in public interest. The provisions had often been misused or abused for pressurising the judges so as to obtain from them favourable opinions/judgments or punish them for their upright behaviour. The Supreme Court in the case of Al-Jehad Trust v Federation examined this provision in the light of other provisions pertaining to the independence of the judiciary and concluded that no judge may be transferred to the Federal Shariat Court, and further, that transfer to another High Court is permissible only in public interest.
Federal Shariat Court:
The Court consists of 8 Muslim Judges including the Chief Justice. Such Judges are appointed by the President from amongst the serving or retired Judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of a Judge of the High Court. Of the 8 Judges, 3 are required to be Ulema who are well versed in Islamic law. The Judges hold office for a period of 3 years and the President may further extend such period.
The Court, on its own motion or through petition by a citizen or a government (Federal or provincial), may examine and determine as to whether or not a certain provision of law is repugnant to the Injunctions of Islam. Appeal against its decision lies to the Shariat Appellate Bench of the Supreme Court, consisting of 3 Muslim Judges of the Supreme Court and not more than 2 Ulema, appointed by the President. If a certain provision of law is declared to be repugnant to the Injunctions of Islam, the Government is required to take necessary steps to amend the law so as to bring it in conformity with the injunctions of Islam. The Court also exercises appellate revisional jurisdiction over the criminal courts, deciding Hudood cases. The decisions of the Court are binding on the High Courts as well as subordinate judiciary. The Court appoints its own staff and frames its own rules of procedure. On 1st January 2007, a total of 3316 cases (3016 appeals/revisions and 300 petitions) were pending before the Court.
Ever since its establishment in 1980, the Federal Shariat Court has been the subject of criticism and controversy in the society. Created as an Islamisation measure by the Military Regime and subsequently protected under the controversial 8th Amendment, its opponents question the very rationale and utility of this institution. It is stated that this Court merely duplicates the functions of the existing superior courts. The composition of the Court, particularly the mode of appointment of its judges and the insecurity of their tenure, is taken exception to, and it is alleged, that this Court does not fully meet the criterion prescribed for the independence of the judiciary, hence, is not immune to pressures and influences from the Executive. In the past, this Court was used as a dumping ground for the recalcitrant judges. And whereas some of its judgments, particularly the ones which relying on the Islamic concept of equity, justice and fair play, expanded and enlarged the scope and contents of individual’s rights were commended, others that validated the controversial Hudood Laws, in particular, the sentence of Rajam (stoning to death) are severely criticised and deplored. With the adoption of Protection of Women (Criminal Laws Amendment) Act, 2006 the jurisdiction of the Court is considerably curtailed inasmuch as, appeals/applications for revision arising out of trial of offences taken out from the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are no longer filed before the Court. They are filed before the High Court. In brief, there is a need for a serious discussion on the independence, utility and functions of this Court.
Subordinate Judiciary:
The subordinate judiciary may be broadly divided into two classes; one, civil courts, established under the West Pakistan Civil Court Ordinance 1962 and two, criminal courts, created under the Criminal Procedure Code 1898. In addition, there also exist other courts and tribunals of civil and criminal nature, created under special laws and enactments. Their jurisdiction, powers and functions are specified in the statutes creating them. The decisions and judgments of such special courts are assailable before the superior judiciary (High Court and/or Supreme Court) through revision or appeal. The civil courts may be classified as follows:
Civil & Criminal Courts:
The provincial governments appoint the civil and criminal judges and their terms and conditions are regulated under the provincial civil servants acts/rules. The High Court, however, exercises administrative control over such courts. The civil courts consist of District Judge, Additional District Judge and Civil Judge Class I, II & III. Similarly, the criminal courts comprise of Session Judge, Additional Session Judge and Judicial Magistrate Class I, II & III. Law fixes their pecuniary and territorial jurisdictions. Appeal against the decision of civil courts lies to the District Judge and to the High Court, if the value of the suit exceeds specified amount. Similarly, in keeping with the quantum of penalty, appeals against criminal courts lie to Session Judge or High Court.
Revenue Courts:
Besides the civil courts, there exist revenue courts, operating under the West Pakistan Land Revenue Act 1967. The revenue courts may be classified as the Board of Revenue, the Commissioner, the Collector, the Assistant Collector of the First Grade and Second Grade. The provincial government that exercises administrative control over them appoints such officers. Law prescribes their powers and functions.
(iii) Special Courts:
The Constitution authorises the federal legislature to establish administrative courts and tribunals for dealing with federal subjects. Consequently, several special courts/tribunals have been created which operate under the administrative control of the Federal Government. Most of these courts function under the Ministry of Law & Justice, however, certain courts also operate under other ministries/departments. Such courts/tribunals include the Special Banking Court, Special Court Custom, Taxation and Anti-corruption, Income Tax (Appellate) Tribunal, Insurance Appellate Tribunal, etc. The judicial officers presiding over these courts are appointed on deputation from the provincial judicial cadre.
Service Tribunals:
Under Article 212 of the Constitution, the Government is authorised to set up administrative courts and tribunals for exercising jurisdiction in matters, inter alia, relating to the terms and conditions of service of civil servants. Accordingly, service tribunals, both at the centre and provincial level have been established and are functional. The members of these tribunals are appointed by the respective Government. Appeal against the decision of the Provincial Service Tribunal and the Federal Service Tribunals lies to the Supreme Court.
Important Enactments:
During the period of 1947 to 1971, the following important enactments were made:
Laws related to land:
(1). Non-agricultural Tenancy Act, 1949.
(2). The state Acquisition and Tenancy Act, 1950.
Factory and Labour laws:
(1). Factories Act, 1965.
(2). Industrial Relations Ordinance, 1969.
(3). Shops and Establishment Act (Standing order), 1965.
(4). The Employment of Labour Act, 1965.
(5). The Fatal Accident Act, 1965.
(6). The minimum wages ordinance, 1961.
(7). The Companies Profit (workers participation) Act, 1968.
(8). The Tea Plantations Labours Ordinance, 1962.
(9). The Dock Laborers Regulation, 1948.
(10). The Dock workers (Regulation of Employment) Act, 1980.
(11). The Maternity Benefit Act, 1948.
(12). The Maternity Benefit (Tea Estate) Act, 1950.
(13). The Road Transport workers ordinance, 1961.
(14). The Trade Organization Ordinance, 1968.
Banking laws:
(1). The Bank Company Ordinance, 1962.
(2). The Foreign Regulation Act, 1947.
Other laws:
(1). The Building Construction Act, 1982.
(2). The Citizenship Act, 1951.
(3). The Copy Right Act, 1962.
(4). The Custom Act, 1969.
(5). The Pakistan Defence Ordinance, 1965.
(6). The Hat & Bazar (Establishment & Requisition) ordinance, 1959
(7). The Navy ordinance, 1961.
(8). The premises Rent control ordinance, 1963.
(9). The Salt Tax Act, 1981.
(10). The Town Development Act, 1953.
(11). The Waqf Ordinance, 1966.
(12). The Sea Custom Act, 1963.
Family Laws:
The Muslim Family Ordinance, 1961, so to speak, the above mentioned Acts as well as ordinances is in operation in Bangladesh having made some required amendments there on. Besides these laws, the Acts of the British were also in operation for the actual functioning of the legal system of Pakistan.
Law and Judiciary under Pakistan Period:
As regards independence of the Judiciary in Bangladesh under Pakistan period, it may be of vital importance to point out here that the hand of the District Magistrate was complete. He, as an executive, could arrest and prosecute a person. He also acted as a judge and tried criminal cases. As a result, the individual liberty was always in danger and frequently interfered with.
On the other hand, if we consider the famous case- the Federation of Pakistan Vs. Moulvi Tamizuddin Khan, P.L.D., 1955, F.C. 240, then we find that in the case, the decisions of the Federal Court of Pakistan was, in actual practice, indicative of the weaknesses of the said court to maintain its judicial independence. In this regard, Moudud Ahmed, in his book, namely, ‘Bangladesh: Constitutional Quest for Autonomy’, says as under:
- a) “The full Bench of the Federal Court being trapped by its own judgment in the Tamizuddin Khan’s case and having created great controversies…. ”
- b) “It only further proved the irrationality or bias applied by the court in the case of Tamizuddin Khan. The Court went out of its way to bail out the Governor-General who acted illegally in dissolving the Constituent Assembly.”
Moreover, by the judgment in the case of State Vs. Dosso ( PLD 1958 S.C. 533), the Pakistan supreme court conferred legality on the armed usurpers calling it a “Victorious revolution” and a successful coup d’etat by relying on Hans Kelsen”s positivist theory of efficacy. The judgment was based on the doctrine of necessity and political reality. Had the Pakistan Supreme court acted constitutionally and legally, no doubt at some risk to the judges, the entire course of history of this Subcontinent might have been different. It is interesting to recall that the same Supreme Court under changed circumstance in Asma Jilani’s case in 1972 overruled Dosso’s case and gave an entirely different judgment holding the Proclamation of Martial Law by General Yahya Khan in 1969 as illegal. The Dosso’s case was subsequently quoted and followed with approval by the supreme courts in Uganda, Rhodesia and Nigeria in granting constitutional legitimacy to armed usrpers who also staged successful coup d’etat there. Dosso’s case thus acquired the dubious distinction as a leading legal precedent for other armed usurpers to successfully invoke and acquire the necessary legitimacy and constitutional government which prompted the Judicial Committee of the Privy Council to remark. “What happened in Pakistan in October, 1958, and then an isolated incident in the Commonwealth has become a pattern for the new Commonwealth”. But at the same time, we are proud of a number of cases decided by the Pakistan supreme court namely, those of Malik Ghulam Jilani, Mir Abdul Baki Baluch and Begum Shorish Kashmiri all of which upheld the fundamental rights and liberties of the people. However, on the whole, the judges and the Courts were not successful in safeguarding the liberties of the people although the Courts had a general reputation of fairness, impartiality and incorruptibility. After ending of Pakistan period in 1971, Bangladesh (former East Pakistan) emerged as an independent State in the political map of the world. It took its birth as an independent and sovereign state on December 16, 1971, out of the ashes of a bloody war for national independence carried out for nine months beginning from March 25, 1971, when the Pakistan Army fell upon the unarmed people of the then East Pakistan, and ending on December 16, 1971, after the surrender of Pakistan army on the date. Since then Law and Judiciary in Bangladesh have been developed with many important changes. Therefore, an attempt in made in the subsequent changes. Therefore, an attempt is made in the subsequent chapter chapter 6 to examine the Law and Judiciary in Bangladesh since its independence i.e. 1974.