LEGAL SYSTEM OF BANGLADESH
Legal System developed gradually in Bangladesh with her growth as a nation over the centuries. It is interesting to note how from customary law of the tribal communities, originally inhabiting the country, enriched by the usage and custom of other communities who had either migrated or invaded the country, and finally by the Aryan invasion and colonisation. Divine law of the colonizers further developed the local customary law administered originally by the tribal communities, thereafter by the tribal chiefs and their council of advisers derived from the tribal panchayet and ultimately by the king and his council of advisers drawn from the local Brahmin caste. Legal system of the country was further enriched by the law promulgated by the king through royal edicts in respect of matters not covered by the customary and divine laws.
These laws better known as Hindu law were ultimately replaced by Islamic law after the Muslim conquest though the members of the Hindu community were regulated in personal matters by the principles of Hindu law. Islamic legal system was also replaced subsequently by the British colonial power by the common system of law and justice. Legislation initially by the Governor-General-in-Council and ultimately by the elected legislature and administration of justice by a higherarcy of courts were the distinctive features of the common law system continued even after the liberation of Bangladesh with the only addition of written constitution as the supreme law of the country enshrining therein, amongst others, fundamental rights of the citizens and judicial review by the High Court Division.
Aboriginal legal system was based on customary law of the tribal communities. Customary law has evolved from the past practice and traditions of the tribal communities through the common consensus of their members considering their usefulness and reasonableness followed from time immemorial. Customary law as rules of conduct of the members of the tribal community was administered by the tribal panchayat and their violation was punishable either with fine or ex-communication from the tribe considering gravity of the situation.
The territory which formed Bengal from the ancient time part of which now constitute Bangladesh was inhabited originally by Australoid people, and in course of time this race was mixed up with other races entering the country through migration or invasion and enriched the local customary law by their customs and traditions. Panchayat system is said to have directly descended from tribal practice of the Australoid people. In course of time tribal community system gave rise to the tribal chieftainship in Bengal. These chieftains wielded coercive power not only to the members of the tribal community to observe the customary rules of conduct but also to impose their directives.
The chieftain assumed the function of dispute settlement with the help of the members of the panchayet chosen from the elders of the community. But in course of time such chieftainship gave rise to small kingdoms in the country each ruled by a king. Such king might have dispensed with the service of the panchayet or absorbed some of the members of the same as members of his council of advisers having power to dispense with their advice. Thus kings became more powerful than the chieftains.
Like the chieftains the kings also used to apply customary rules of conduct not only to administer justice but also to maintain law and order in the society. The king also used to issue edicts and directions to meet novel situations in the society to be followed by the members of the society under pains of penalty for violation of the same. So before the Aryan invasion of the country legal system was based mainly on customary laws supplemented in the later period by the edicts and directives of the chieftains and subsequently of the kings.
Aryan legal system After coming to India the Aryans followed certain norms in their conduct with one another. The rules of conduct (achar) of each class included religious observances which were binding, and violation of the same was expiated by the rituals of penance (prayaschitta). The Brahmins, the priestly class, helped the wrongdoers in performing those rituals. Those rules of conduct were called dharma and included duties and obligations. In course of time it became the dharma of the king to compel the people to observe their rules of conduct, and the Brahmins, as the repository of knowledge of those rules, advised the king in administering the same.
Legal obligations and their violations were subject matter of litigation (vyavahara). The king and the judges appointed by the king decided the litigations. It was the obligation of the subjects to obey the command and law laid down by the king. As military chief he had the power to coerce people to obey his orders. The king maintained social order by awarding punishment (danda) to the violators of the law. Dandaniti or the rules about punishment was an essential part of the education of the king. But the king had to apply danda according to the established canons of dharma. Hindus believe that dharma emanated from the Almighty through the sages of the primitive period and hence claim to be divine origin law.
After Bengal came under Aryan rule, the system of law of the Aryans as modified by local customs and usages was in practice in Bengal. Though the king or his appointed judges administered law and justice in the country, the village panchayet continued the function of administering justice in the village community about petty disputes in addition to assisting revenue administration. During the rule of the Palas the chief justice was called Mahadandanayaka or Dharmadhikar and during the rule of Chandras, Varmans and Senas he was known as Mahadharmadhyaksha.
That system of law was also known as Hindu law. Laws compiled by Gautama, Budhyana, Apastamba, Harit, Vaisishtha, Visnu, Manu, Yajnavalkya, Narada, Brihaspati, Katyanya etc were the main sources of the Hindu law. In Bengal Jimutabahana’s Dayabhaga, a digest of all codes of hindu law, was followed in respect of inheritance and partition of joint property only, and in the rest of India Vijnaneshwar’s Mitaksara, a commentary of the code of Yajnavalkya was followed.
Turko-Afghan legal system After the conquest of Bengal by bakhtiyar khilji in 1204 AD, the application of Hindu law was limited to the personal laws of the Hindus, and in the administration of the country and delivering justice the principles of Islamic law were applied. Principles of Islamic law as ordained in the Quoran, words and deeds of the Prophet called sunnah, later supplemented by ijma or consensus of opinion of the Prophets’ disciples and learned scholars in Islamic law, and qiyas or analogical deduction are the sources of Muslim law. The country was then either ruled by independent sultans or by the representatives of the Delhi sultanate until the conquest of the province by the Mughals. None of the independent sultans except the rulers of Husayn Shahi dynasty could rule the country for long.
However, their administration was modelled on the set up of the Delhi sultanate. The sultan was the head of not only civil and military administration but also of justice. The country was divided into units called iqlim or arsah. Each division was under an officer who was not only head of the civil administration of that area, but also head of the local army and maintained law and order. The sultan also appointed a judicial officer called qazi in each division for administration of justice in accordance with the Islamic law. The sultan also appointed a qazi in each and every town. Qazis administered justice with the help of the ulema, learned men in Islamic law. The qazi decided litigations between the disputing parties, whereas the sultan decided cases of rebellion and blasphemy. As head of the judiciary the sultan had power to revise the decisions of the qazis.
There was perhaps a hierarchy among the qazis, but no definite information is available on this matter. The sultan was the source of all power. He had the power to promulgate and enforce law through the officers appointed by him. The only limitation on his power was the rules of Islamic law which he obeyed. The learned men in Islamic law known as the ulema exerted much influence on the sultans.
The sultans ordinarily promulgated law in respect of civil and revenue administration through his firmans issued from time to time to meet the exigencies of the situations arising in the civil and revenue matters, matters relating to marriage, succession, inheritance, maintenance, partition, religious institutions etc were regulated by the principles of Islamic law. Petty disputes among the villagers were settled by the village panchayet selected from amongst the residents of the village. The non-Muslims were guided by their personal law in matters between themselves. This shows that the Islamic law did not altogether replace the Hindu law.
Legal System under the Mughals During the Mughal rule, the legal system introduced by the Turko-Afghans was not changed, rather consolidated. In every Pargana (mahal) consisting of several villages, there was a qazi to decide civil and criminal cases, a sikdar to maintain law and order, an amin to assess revenue and to decide land and revenue disputes, and an amil or malguzar to collect revenue. Similarly in every district there was a district qazi to hear civil and criminal cases of district town and also to hear appeals from the decisions of the pargana qazis.
The faujdar maintained law and order in the district and also administered criminal justice arising from violation of law and order, and malguzar was the head of revenue administration of the district and also decided land and revenue disputes. He also had power to revise decisions of the amins. Qazi-ul-quzat (chief justice) decided civil and criminal cases of the provincial capital and also heard appeals from decisions of the district qazis. The qazis administered justice according to the principles of Islamic law.
But rules of the personal laws of the non-Muslims were applied by him in deciding disputes between them. The qazi was assisted by the mufti in deciding cases according to the rules of Islamic law and with the help of a person well versed in the personal law of the non-Muslims in deciding cases amongst them. The sikdar of the pargana and faujdar of the district could punish the offenders for breach of peace only. The nazim (provincial governor) had powers to revise the decision of the chief qazi in criminal offences punishable with death or mutilation.
The provincial diwan had the power to revise the decision of the district Malguzar. The village panchayet’s power was also intact during the Mughal rule. Though the Zamindars, as government agents for collection of revenue, had no judicial power they usurped the same during the declining period of Mughal rule. By issuing firmans, the Mughal emperors promulgated laws in respect of secular matters and the same were binding. But they did not make any law contrary to Islamic principles. Rather, the Mughal emperor Aurangzeb appointed a commission for compiling the Islamic laws followed by the sunni school. The said compilation is known as Fatwa-i-Alamgiri.
Legal system under Company rule After the battle of Palashi (1757), the power of the nazim started to dwindle further. However, the east india company did not assume power till the granting of diwani in 1765. In 1772 the Company’s governor warren hastings for the first time appointed English Collectors in each district for collection of revenue and administration of civil justice to the litigants with the help of Muslim ulema and Hindu pundits, but did not interfere with the administration of criminal justice by the qazis in the districts.
The collectors were empowered to control police force and had magisterial power to arrest offenders and send them for trial to the criminal court of the qazis. lord cornwallis divested the collectors of judicial power and appointed English officers as judges of the district civil courts. He also stripped the qazis of their power to administer criminal justice, and created a circuit court of sessions in each division with English officers to decide criminal cases of grave nature with the help of a qazi and a mufti.
He established divisional courts to hear appeals from the decisions of the district civil courts with the same judges of the circuit court of sessions. The divisional courts had to decide cases with the help of Muslim ulema and Hindu pundits. Petty offences were tried by the judges of the district civil courts as magistrates. Petty civil cases were tried by native judicial officers, called munsifs. Judges of District civil court also issued licences to the legal practitioners and allowed them to receive fees from their clients for their services and this created the legal profession.
Lord Hastings again bestowed magisterial power on the collectors and appointed native judicial officers called sadar amins in the district civil courts. Sadar Dewani Adalat initially constituted with the governor general and members of his council and subsequently with experienced senior English officers, heard appeals from the decisions of the district or divisional civil courts, Sadar Nizamat Adalat constituted with the self same judges of Sadar Dewani Adalat heard appeals from circuit courts of sessions. The regulating act of 1773 empowered the governor general-in-council to make regulations for administration of the country. Regulations made from time to time started gradually to modify the Islamic legal system prevalent in the country. Ultimately Islamic law lost its sway and continued to apply some of its principles as muslim personal law.
The King of England in 1774 established a supreme court in Calcutta to decide civil, criminal, equity, admiralty and ecclesiastical cases arising within Calcutta presidency town except petty civil cases. The Supreme Court tried civil disputes as a court of common pleas following its procedure and tried the accused charged with grave offences with the help of grand jury and petty jury as the King’s court of England.
The Supreme Court had power to issue writs like the King’s Court of England and also power of supervision and control of the subordinate courts. By the Act of Settlement 1781, the power of the Supreme Court to issue writs was much circumscribed and limited within the Presidency town. Supreme Court in the presidency town had jurisdiction on the residents of Calcutta and the European servants of the Company serving in India, and administered justice according to the English law.
But the courts set up by the Company administered justice according to Islamic law as modified by the regulations and subsequently by the Acts made by the Governor-General-in-Council as legislature since 1833 from time to time. Lord william bentinck created the posts of principal sadar amins in the district civil courts with power to hear appeals from the decision of munsifs and additional judges to exercise all powers vested in the district judges.
District and sessions judges were empowered to reject fatwa of the qazis and muftis in cases where they obtained opinion of the jury or assessors. Gradually district judges were also made session judges to try grave offences with the help of jury or assessors. Under the Charter Act of 1833, the governor general in-council was turned into a legislature with a law member, and was empowered to make Acts instead of regulations. Law commissions were constituted with eminent jurists to codify laws. These steps gradually replaced Islamic system of law by the principles of common law of England.
Legal system under British rule In 1857, Queen Victoria by a proclamation took over the administration of India from the hands of the Company. Codification of laws by the extended legislature under Government of India Acts was accelerated on the basis of recommendations of the law commissions. In 1862, the Calcutta High Court was established by amalgamating the Supreme Court, the Sadar Diwani Adalat and the Sadar Nizamat Adalat. At the same time, the Islamic system of law was replaced by the English common law system in 1862 with some modifications allowing both Hindus and Muslims to be regulated by the rules of their respective personal laws as enjoined by their respective religion. In 1864, the posts of qazis, muftis, moulavis and pundits were abolished. Muslim personal law deals with marriage, divorce, paternity, guardianship, maintenance, succession, inheritance, gift, will, wakf, preemption etc.
The judicial officers of the subordinate courts were appointed from amongst the law graduates, practising lawyers and administrative officers who were members of the Indian Civil Service (ICS). High court judges were appointed from amongst the practising barristers, advocates and the district judges. The lowest level civil court was presided over by the munsif and criminal court by the magistrate in the subdivisional headquarters. However, there were three classes of magistrates having first class, second class and third class power of imposing sentences.
Above the aforesaid courts were the courts of district judges, additional district judges and subordinate judges in civil matters, and the courts of the district and additional district magistrates, the sessions judges, additional session judges and assistant session judges in criminal matters in the district headquarters. The session courts were presided over by the same officer who decided civil cases also as district judge, additional and subordinate judge. Appeal lay with the high court from the decision of the district court and with the Privy Council in England from the decision of the high court. Since 1937 Indian Federal Court decided appeals from the decisions of High Court where any question of interpretation of any law or Government of India Act 1935 was involved.
Under the Government of India Act 1861 Legislatures were set up in the provinces including Bengal with limited representation and also increased of number of members of the central legislature with limited local representation to make provincial and local laws respectively. Gradually representation in the control and provincial legislatures was extended and under the 1935 Act majority members of those legislatures were elected through limited franchise of the people of the country. Till the partition of the country in 1947, the modified English legal system was in operation.
Before the introduction of English legal system, massive codifications were undertaken starting with the enactment of the Evidence Act, 1853 and 1855, criminal procedure code 1861, Small Causes Court Act 1860, Penal Code 1860, civil procedure code 1859, Contract Act 1872, Transfer of Property Act 1882, easements act 1882, Civil Courts Act 1871, and myriad other Acts, all mostly incorporating principles of English Law. Code of Criminal Procedure, Code of Civil Procedure, Civil Courts Act, Small Causes Court Act and Evidence Act were subsequently modified and reenacted.
Legal system in Pakistan During the Pakistan period except abolition of the jurisdiction of the Privy Council and conferment of the same on the federal court established in 1937 under the Government of India Act 1935, there was no change in the structure and constitution of the courts. By an amendment of the Act of 1935 the high courts were given power to issue writs, but subsequently that amendment was declared invalid by the federal court.
The Constitution of Pakistan 1956 empowered the high courts to issue writs not only to enforce fundamental rights, but also to declare any action of public authorities to be without lawful authority and of no legal effect and to grant other remedies. After the constitution came into force central and provincial legislatures were constituted according to the constitutional provisions. But prior to that constitutional Assembly functioned also as central legislature and provincial legislatures elected under 1935 Act acted as such legislatures.
The Supreme Court which replaced the federal court was given power to issue writs to enforce fundamental rights in addition to the power to hear appeals from the decision of the High Courts. The Supreme Court and the High Courts could also declare null and void any laws which was inconsistent with the fundamental rights. The laws made during British rule continued with minor modifications. However, after the promulgation of martial law in 1958, the Constitution was abrogated.
Trial by jury was abolished in June 1959, and in 1961 conciliation courts were constituted with the chairmen of the union prishads and representatives of the disputing parties to decide petty civil and criminal cases. The Constitution of 1962 as amended in 1964 gave power to the high courts to enforce fundamental rights in addition to power to issue writs, and the Supreme Court to hear appeals from the decisions of the high courts. But the constitution was again abrogated in 1969 after the promulgation of second martial law.
Legal system in Bangladesh After the emergence of Bangladesh in 1971, initially there was no change of laws and the judicial system. But with the coming into force of the Constitution of Bangladesh on 16 December 1972, the Supreme Court of Bangladesh with two divisions, the High Court Division and the Appellate Division, came into being. As the apex court the High Court Division has been vested with the power to hear appeals and revisions from subordinate courts, and also to issue orders and directions in the nature of writs to enforce fundamental rights and to grant other reliefs available under the writ jurisdiction.
The Appellate Division is vested with power to hear appeals from the decisions of the High Court Division or from any other body under any statute. The High Court Division has also powers of supervision and control of the subordinate courts and tribunals. The Supreme Court is a court of record and can punish any one for its contempt or contempt of the courts subordinate to it. The law declared by the Appellate Division is binding on the High Court division and law declared by either division is binding on all subordinate courts. The High Court Division may declare any law inconsistent with the fundamental rights as null and void. The President of the Republic appoints and controls the judicial officers of the subordinate courts in consultation with the Supreme Court.
There are labour courts and labour appellate tribunals to decide labour disputes, administrative tribunals and administrative appellate tribunal to decide service disputes of public servants, income tax appellate tribunal to decide income tax disputes, custom, excise and VAT Appellate tribunal to decide disputes regarding custom and excise duties and VAT, court of settlement to decide disputes about abandoned properties, special judges to try corruption cases against public servants, special tribunals to try criminal cases under the Special Power Act 1974 and Nari-o-Shishu Nirjatan Daman Adalats to decide cases of crimes committed against children and women. To decide election disputes the election tribunals are constituted with judicial officers.
Other tribunals follow the same procedure as the civil and criminal courts unless there is contrary provision in the concerned law. Family courts have been constituted with assistant judges to decide family disputes. To decide money claims of the banks and other financial institutions Artha Rin Adalats have been set up presided over by judges, and insolvency courts have been set up presided over by district or additional district Judges to declare defaulting borrowers as insolvent. To try offences committed by children below the age of 16 years, juvenile courts have been formed with the magistrates and sessions judges, and juvenile courts follow the special procedure laid down in the Children’s Act.
Court martial formed under the provisions of the Army Act, Air Force Act, and Navy ordinance, tries the offences committed by the members of the armed forces, and the decision of such a court cannot be challenged before the Supreme Court. There are village courts in the rural areas and municipal conciliation boards in the urban areas to decide petty civil and criminal cases. The land appeal board is the highest authority to hear revenue appeals from the decisions of the subordinate land revenue authorities, and the national board of revenue decides tax, duty, excise and VAT matters at the highest level.
Almost all the substantive laws creating rights and obligations are those enacted during the British period, and are still in operation with modifications from time to time. The most important modifications of the Code of Criminal Procedure are abolition of the provisions of enquiry made by the magistrate to see whether there is a prima-facie case against the accused to send him for trial in the court of sessions and trial of sessions cases by the assessors.
The legal system of Bangladesh is basically a common law system with the difference that the supreme court can not only interpret laws made by the Jatiya Sangsad but can also declare the same null and void and enforce fundamental rights of the citizens. Though the legal system is founded on the English common law, most of the laws of Bangladesh are statutory laws enacted by the legislature and interpreted by the higher courts. The procedural laws provide for an adversarial system of litigation in which prosecution has to prove the guilt of the accused who has no burden save in some exceptional cases, and the accused is presumed innocent till found guilty after trial, whereas in a civil case the burden is divided between the litigating parties.
Moreover, there is a separation of powers amongst the legislature, executive and judiciary. The Supreme Court is not only independent of the other organs, but also acts as the guardian of the Constitution. Subordinate judiciary is independent in exercising of judicial power. Since 1st November 2007 there are two classes of magistrates, judicial and executive. Consecutive governments committed themselves to separation, but as yet no action has been taken at the ground level. The Sangsad can enact laws, but the same cannot be inconsistent with the provisions of the Constitution, which include a number of fundamental rights. Thus the legislative power of the Bangladesh Jatiya Sangsad is not unlimited like that of the British parliament which is said to have power to make any law.
The basic law of Bangladesh is the constitution of the People’s Republic of Bangladesh, 1972 as amended from time to time. Till 2003, fourteen amendments have been made. All laws of the country are made by the Jatiya Sangsad conforming to the tenets of the Constitution. The laws enacted by the legislature and now in operation regulate almost all spheres of life. Ordinarily, executive authorities and statutory corporations cannot make any law, but can make by-laws to the extent authorized by the legislature.
Such subordinate legislation is known as rules or regulations. Unless found ultra vires of the parent law, such rules or regulations are also enforceable by the court like the laws made by the legislature. Important laws of the country may be classified under some broad heads such as land and property laws, personal laws, commercial laws, labour and industrial laws, election laws, law of crimes, service laws, fiscal laws, press laws and laws relating to the remedies.
In addition, there are various other laws on different subjects regulating different fields and spheres of activities of national life. To seek remedy a person has to file a case before the appropriate court, tribunal or authority. Claims regarding money, property, compensation etc is to be filed before the civil court presided over by the assistant judge or joint district judge according to value of the claim, and complaint against commission of crime is to be filed either with the local police station or in the criminal court of judicial magistrate of the first class of the locality. The police investigates the cognizable cases lodged with the police station and produces witnesses before the court during trial.
On the other hand, it is the responsibility of the complainant to produce witnesses before the court in the cases in which magistrates take cognizance on the basis of a written complaint. There are other authorities before which remedies may be sought by an aggrieved party. Those authorities are administrative authorities or tribunals. Except in respect of enforcement of fundamental rights, admiralty, company matters and writ petitions, relief cannot be sought directly from the high court division which mainly deals with appeals and revisions from the decisions of the subordinate courts.
The legal system is so vast and complicated that an ordinary person without the help of a legal practitioner (known as advocate) cannot effectively seek legal remedy from the court, administrative authorities or tribunals though there is no legal bar in seeking remedy directly without engaging a lawyer.
The attorney general is the principal law officer of the government. He is also leader of the bar and ex-officio chairman of the bangladesh bar council. He is assisted by the additional attorney general, deputy attorney generals and assistant attorney generals. They represent the state in the supreme court and conduct cases at courts on behalf of the state. The government pleader is the principal law officer of the government in the district and he is assisted by the additional and assistant government pleaders.
They represent the state in the subordinate civil courts in the district and conduct cases in those court on behalf of the state. Similarly the public prosecutor is another principal law officer of the government in the district in criminal matters. He is assisted by the assistant public prosecutors. They conduct prosecution cases on behalf of the state in the courts of sessions, sessions level courts or tribunals in the district. The police inspectors conduct prosecution cases on behalf of the state in the courts of the magistrates.
In Bangladesh every one is equal before the law, and entitled to equal protection of law, and there cannot be any discrimination on the ground of religion, race, sex, etc and no one can be detrimentally affected in life, liberty, body, reputation or property except in accordance with law. rule of law is one of the basic features of the legal system of Bangladesh. [Kazi Ebadul Hoque]
Bibliography Sir HS Marine, The Ancient Law, Boston, 1993; ABM Mofizul Islam Patwary, Legal System of Bangladesh, Dhaka, 1991; HJ Abraham, The Judicial Process, New York, 1980; WH Morley, The Administration of Justice in British India, New Delhi, 1976; NC Sengupta, The Evolution of Law, Calcutta, 1925. The Constitution of Bangladesh 1972; KE Hoque, Administration of Justice in Bangladesh, Dhaka 2006.