THE CODE OF CRIMINAL PROCEDURE, 1898 OF SUMMARY TRIALS

260.(1) Notwithstanding anything contained in this Code,-

(a) the Metropolitan Magistrate

(b)  any ***] Magistrate] of the first class, and

(c) any Bench of Magistrates invested with the powers of a Magistrate of the first class

shall] try in a summary way all or any of the following offences:-

(a) offences not punishable with death, transportation or imprisonment for a term exceeding  two years];

(b) offences relating to weights and measures under sections 264, 265 and 266 of the Penal Code;

(c) Hurt, under section 323 of the same Code;

(d) theft, under section 379, 380 or 381 of the same Code, where the value of the property stolen does not exceed  ten thousand taka];

(e) dishonest misappropriation of property under section 403 of the same Code, where the value of the property misappropriated does not exceed  ten thousand taka];

(f) receiving or retaining stolen property under section 411 of the same Code, where the value of such property does not exceed  ten thousand taka];

(g) assisting in the concealment or disposal of stolen property, under section 414 of the same Code, where the value of such property does not exceed  ten thousand taka];

(h) mischief, under  sections 426 and 427] of the same Code; 
(i)  criminal trespass, under section 447, and] house trespass, under section 448, and offences under sections 451, 453, 454, 456 and 457 or the same Code;

(j) insult with intent to provoke a breach of the peace, under section 504, and criminal intimidation, under section 506,  and offences under sections 509 and 510] of the same Code;

 (jj) offence of bribery and personation at an election under sections 171E and 171F of the same Code;]

(k) abetment of any of the foregoing offences;

(l) an attempt to commit any of the foregoing offences, when such attempt is an offence;

(m) offences under section 20 of the Cattle-trespass Act,1871: Provided that no case in which a Magistrate exercises the special powers conferred by section  33A] shall be tried in a summary way.

(2) [Omitted by section 22 of the Code of Criminal Procedure (Second Amendment) Ordinance, 1982 (Ordinance No. XXIV of 1982).]

Does the country have a mandatory death penalty?

No. After a High Court ruling in the appeal of Sukur Ali, joined or filed by the Bangladesh Legal Aid and Services Trust in February 2010 (challenging the mandatory death penalty for rape) the mandatory death penalty in Bangladesh is probably unconstitutional.  We had not located the ruling as of March 12, 2010.

For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?

After a High Court ruling in the appeal of Sukur Ali, joined or filed by the Bangladesh Legal Aid and Services Trust in February 2010 (challenging the mandatory death penalty for rape) the mandatory death penalty in Bangladesh is probably unconstitutional. We had not located the ruling as of March 12, 2010.

Does the country’s constitution make reference to capital punishment?

Article 32 provides: “No person shall be deprived of life. . . save in accordance with law.” This could imply the constitutionality of the death penalty. Additionally, Article 149 saves the 1860 Penal Code except as modified by law made under the Constitution. This does not elevate the death penalty to constitutional status, but it is constitutional reference to a body of law that includes the death penalty. 

Does the country’s constitution make reference to international law?

Article 25 of the Constitution of the People’s Republic of Bangladesh recognizes the United Nations Charter, and Article 47 recognizes humanitarian law and provides that the Constitution will not limit the application of international treaties and the law of war. These provisions do not expressly recognize international human rights law, although they may imply some recognition of international human rights.

Have there been any significant changes in the application of the death penalty over the last several years?

The most significant change is that under a High Court ruling in the appeal of Sukur Ali, joined or filed by the Bangladesh Legal Aid and Services Trust in February 2010 (challenging the mandatory death penalty for rape), the mandatory death penalty in Bangladesh is probably unconstitutional,  limiting the ambit of the death penalty. Another significant change is that legislation enabling the death penalty for offenses committed by the Bangladesh Guard is pending. This is significant because of the number of massacres and other capital offenses carried out by Bangladesh Guard personnel. Reports also indicate that an anti-terrorism ordinance issued in 2008 may somewhat expand the death penalty for terrorism. Finally, a court ruling on November 19, 2009 (which we had not found as of March 12, 2010) indicates that public execution by firing squad could be a legal form of execution. This ruling may be less significant because reports indicate that authorities have not used it to carry out such executions. 

Is there currently an official moratorium on executions within the country?

No. 

Have there been any significant published cases concerning the death penalty in national courts?

While as of March 12, 2010, we had not found any published opinions, there are at least two important and recent cases concerning the death penalty.

In February 2010, reports indicated that the High Court ruled in the appeal of Sukur Ali, joined or filed by the Bangladesh Legal Aid and Services Trust (challenging the mandatory death penalty for rape), that the mandatory death penalty in Bangladesh is unconstitutional. Presumably, such an opinion discusses the protection against torture or cruel, inhuman or degrading punishment or treatment, or (somewhat weaker) due process and fair trial protections under Articles 32 and 35 of Bangladesh’s constitution.

In November 2009, reports indicated that the Bangladesh courts recently resolved a long-standing question of whether execution by firing squad was a permissible form of execution under the Bangladesh constitution, ruling that execution by firing squad is constitutional. Presumably, the opinion discusses whether such a method of execution is humane, although journalists reporting on the opinion concentrated on the fact that the government could choose to carry out the executions by hanging if using a firing squad proved too difficult, and the executions were in fact carried out by hanging. 

Where can one locate or access judicial decisions regarding the death penalty?

A searchable database of cases in Bangladesh is available at http://www.clcbd.org/. One limitation to this website is that it is limited to for-fee subscribers.

Are jury trials provided for defendants charged with capital murder?

No. There is no jury trial under the civilian court system; under the military system, a panel of officers sits in judgment. 

Brief Description of Appellate Process

The higher courts in Bangladesh are the High Court Division and the Appellate Court Division of the Supreme Court. Death sentences are submitted by the Court of Session to the High Court Division for confirmation. The Appellate Court Division has jurisdiction to hear all appeals from the High Court, and appeal lies as of right when the High Court has sentenced a person to death. 

What is the clemency process?

The Code of Criminal Procedure indicates that executions need not be approved by the executive. The main executive barrier to execution of a death sentence is the prerogative of mercy, granted by the Constitution and defined under the Code of Criminal Procedure and Penal Code.  Condemned individuals petition the President for clemency. Additionally, the government (which may mean the legislature or some other executive official) may commute death sentences. 

Are there lawyers available for indigent defendants facing capital murder trials?

Historically and recently, defendants rarely receive public defenders, although capital defendants have a statutory right to public defense. Bangladesh’s position (expressed in its reservations to the ICCPR) on public defenders is that Bangladesh aspires to fully implement the right to a public defender but that Bangladesh currently lacks the financial wherewithal to assure that right. 

Are there lawyers available for indigent prisoners on appeal?

Historically and recently, defendants rarely receive public defenders, although capital defendants have a statutory right to public defense. Bangladesh’s position is that Bangladesh aspires to fully implement the statutory right to a public defender but that Bangladesh currently lacks the financial wherewithal to assure that right. 

Bangladesh -- BELA v. Secretary, MoEF & others (WP ... of 2003) (Sonadia Island case) (Original Petition)

Posted July 10th, 2003 by Anonymous

in

IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(Special Original Jurisdiction)

WRIT PETITION NO….. OF 2003

IN THE MATTER OF:
An application for direction under Article 102 of the Constitution of the Peoples’ Republic of Bangladesh.

AND

IN THE MATTER OF:

The Bangladesh Environment Conservation Act, 1995 (Act No. 1 of 1995) as amended in 2000 and 2002, the Environment Conservation Rules Act, 1997, the Forest Act, 1927 (Act No. XVI of 1927).

AND

IN THE MATTER OF:
Gazette Notification of Respondent No. 1 dated 03 May, 1999 No.-pabama-4/7/87/99 (the impugned notification as of Annexure “G”) excluding part of the forest area of Sonadia island in Sonadia-Ghotibhanga mauja, Union: Kutubdia, Upazila: Maheshkhali, District Cox’s Bazar from the list of ecologically critical areas declared earlier by the same respondent vide Gazette notification dated 19 April, 1999, No. pabama-4/7/87/99/245 under section 5 of the Environment Conservation Act, 1995.

AND

IN THE MATTER OF:

Bangladesh Environmental Lawyers Association (BELA), a society registered under the Societies Registration Act, 1860, having its office at House No. 9, Road No. 8 Dhanmondi Residential Area, P.S., Dhanmondi, Dhaka being representation by Ms. Syeda Rizwana Hasan, Member, BELA and Advocate, Supreme Court of Bangladesh.

...Petitioner

versus

1. The Secretary, Ministry of Environment and Forest Bangladesh Secretariat, Dhaka.

2. The Secretary, Ministry of Land, Bangladesh Secretary, Dhaka.

3. The Chief Conservator of Forest, Department of Forest, Bon Bhaban, Mohakhali, Dhaka.

4. The Deputy Commissioner, Office of the Deputy Commissioner, Cox’s Bazar.

5. The Divisional Forest Officer, Cox’s Bazar Division, Cox’s Bazar.
-------Respondents

TO
Mr. Justice Khandkor Mahmudul Hasan, the Chief Justice of Bangladesh and his companion Justices of the said Hon’ble Court.

The humble petition of the above named petitioner most respectfully-

S H E W E T H:

That the Petitioner is Bangladesh Environment lawyers Association, hereinafter referred to as BELA, a society registered under the Societies Registration Act, 1860, Registered No. 1457 (17) dated 18th February, 1992 being represented by Ms. Syeda Rizwana Hasan, Member, BELA who has been duly authorized by a resolution of the Executive Committee of BELA dated 30 June, 2001 to represent BELA in all proceedings, case and so on. True copy of the Certificate of Incorporation and resolution dated 30 June, 2001 authorizing Syeda Rizwana Hasan to represent BELA are annexed herewith and marked as Annexures “A” and “A-1” respectively.

1. That the petitioner BELA has been active since 1992 as one of the organization with expertise in the regulatory field of environment and ecology. Through its various efforts, BELA has developed into an independent legal institution with widespread respect and recognition as a dedicated, bona fide, sincere and public-spirited organization. Since its inception BELA has undertaken a large number of public interest litigation wherein the beneficiaries have not only been the common people but also their surrounding environment, precious eco-system and natural resources that affect material and spiritual well-being.

2. That the Respondent No. 1 is the Secretary, Ministry of Environment and Forest is responsible for the management and conservation of environment and its various resources in accordance with the Environment Conservation Act, 1995 (hereinafter referred to as “the Act”) and the rules made thereunder. Under section 5 of the Act, 1995, the Respondent No.1 is also responsible to declare Ecological Critical Areas (hereafter referred to as ECAs) and regulate the management thereof. The Respondent No.1 is also the line ministry of respondent Nos. 3 and 5. The Respondent Nos. 3 and 5 are respectively the Chief Conservator of Forest and the Divisional Forest Officer who are responsible for conservation and management of forest areas in accordance with the provisions of the Forest Act, 1927.

3. That the Respondent No. 2 is the Secretary, Ministry of Land who is the line ministry of Respondent No. 4 and is responsible for overall administration and management of public land resources and determine nature of land use in accordance with applicable laws, rules, circulars, manual and so on. The Respondent No. 4 is the Deputy Commissioner, Cox’s Bazar who is responsible for administration of land and revenue collection at the local level.

4. That the Petitioner is genuinely concerned with the implementation and enforcement of the laws relating to the protection of the environment and is also interested in performing the fundamental duty cast on every citizen by Article 21 of the Constitution of Bangladesh to protect public property and conserve its riches. The Petitioner in its said capacity has invoked the writ jurisdiction of Your Lordships Courts in a number of matters relating to environmental protection and has obtained relief in pursuance of its aims and objectives.

5. The under section 5 of the Environment Conservation Act, 1995, the government in the Ministry of Environment and Forest, i.e., Respondent No. 1 has been entrusted with the responsibility of declaring, by notification in the official Gazette, an area as Ecologically Critical Area if it is satisfied that due to degradation of environment the eco-system of that area has reached or is threatened to reach a critical state. Pursuant to sub-section (2) of section 5 of the said Act, once an area is declared ECA, the government shall also specify, by notification in official Gazette, the operations/ processes that shall not be carried out or initiated in the said ECA.

6. That the Respondent No. 1 acting under the responsibility imposed on it pursuant to Section 5 of the said Act issued a Gazette notification dated 19 April, 1999 published in the Gazette Extraordinary No. 1258/7 dated 19.4.1999. (hereinafter referred to as the Notification) declaring the 4,916 hector (12,138.2716 acres) of forest area of Sonadia island in Sonadia-Ghotibhanga mauja, union: Kutubjom, upazila: Maheshkhali, District: Cox’s Bazar specified in the schedule as an ECA. True copy of the said Gazette Notification dated 19 April, 1999 is annexed hereto and marked as Annexure “B”.

7. That the said Notification dated 19 April, 1999 (as of Annexure “B”) declared a total of 7 (seven) areas of Bangladesh as ECAs including 4,916 hector (12,138. 2716 acres) of the Sonadia Island and also listed activities that cannot be undertaken in these ECAs. The bars included clearing of natural forest or trees, destroying habitats of animals and plants and activities that can change nature of land, water and so on.

8. That the declaration of seven vitally important eco-system as ECAs by the Respondent No. 1 aroused a hope in the mind of the people about adequate protection and proper management of these ECAs by the concerned Respondents. But soon disappeared the ray of hope when series of articles found place in the daily newspapers reporting on the deteriorating state of the ECA of the Sonadia Island. These news articles reported that the 9000 acres of forest area in the Sonadia Island, locally known as “Para bon” was being cleared up by the local influential people including local member of parliament during last one and a half-year for shrimp cultivation despite its status as ECA. Such use has changed the nature of the land that has lost almost all the traits of a forest and hardly serves as habitat for birds and other wild creatures or protects the people living in adjoining coastal areas from the havoc of natural disasters. True copy of the said news articles published in various dailies reporting on the deteriorating state of the ECA of the Sonadia Island are annexed hereto and marked as Annexures “C, C-1, C-2 and C-3”.

9. That following such reports from the newspapers, the petitioner undertook an extensive field investigation and found the allegations of the news articles as true. Such activities in the ECA constitute gross violation of the Environment Conservation Act, 1995 as amended in 2000 and 2002, the Environment Conservation Rules, 1997, the Forest Act, 1927 and the Gazette notification dated 19.04.1999.

11. That in course of its investigation, it has been found that, 2,121.96 acres of the khas land of the Sonadia Island included in the 4, 916 hector (12,138. 2716 acres) declared as ECA was transferred by the Respondent No. 2 vide its letter dated 09.08.1974, memo No. 389-V-248/73-L.S., to the then Ministry of Forest, Fisheries and Livestock (corresponding Respondent No. 1) for undertaking coastal afforrestation activities. The transfer was subjected to the condition that the land would revert to the Respondent No. 2 when no longer required for the purpose of afforrestation. True copy of the letter of the Respondent No. 2 dated 09.08.74 transferring 2,121.96 acres of the khas land of Sonadia Island is annexed hereto and marked as Annexure “D”.

12. That by a subsequent letter dated 13.08.76, memo No. 344 (4)-5-136/76-L.S. issued from the Office of the Respondent No. 2 newly accreted khas land of four districts including the 2,121.96 acres ECA land of the Sonadia Island of the then Chittagong District was transferred for 10 (ten) years to the then Ministry of Forest, Fishery and Livestock (corresponding Respondent No. 1) with the objective to create forest. True copy of the letter of the Respondent No. 2 dated 13.08.76 transferring newly formed land of Chittagong District is annexed hereto and marked as Annexure “E”.

13. That by a Gazette notification dated 24 March, 1977, no. 1/For.83-75/539, the Ministry of Agriculture, by referring to the above notification (as of (Annexure “E”), declared the government decision to constitute the lands covered by the said notification including the lands of the Sonadia Island including 2,121.96 acres ECA land as ‘reserve’ forest and appointed a Forest Settlement Officer to inquire into and determine the existence, nature and extent of any rights alleged to exit in favour of any person in or over such land. True copy of the Gazette notification dated 24 March, 1977, no. 1/For.83-75/539 issued by the Ministry of Agriculture declaring the government’s intention to constitute the lands of Sonadia Island (as of Annexure “E”) as ‘reserve’ forest is annexed hereto and marked as “Annexure-F”.

14. That from separate notes of the Respondent Nos. 3 and 5 dated 02.10.2002, memo No. CCF (T)/4D-257(Part-2)/2002/1075 and 16.09.02 (as of Annexures “I” and “J”), written to the petitioner, it is gathered that in 1985 also, the said land of Sonadia Island was decided to be declared as ‘reserve’ forest under Section 4 of the Forest Act, 1927 by the Respondent No. 2. Accordingly, a forest settlement officer was also appointed to complete the procedures as laid down from Sections 4 to 20 of the Forest Act, 1927 before a forest can be declared ‘reserve’, but the procedures were never completed and as a result, the said forest area of 2,121.96 acres of the Sonadia island was never declared a ‘reserve’ forest.

15. That meanwhile, the Respondent No. 1 issued another notification dated 03.05.1999 published in the Gazette Extraordinary No.1272/31 (hereinafter referred to as the impugned Notification) purportedly modifying part of the notification dated 19.04.99 (as of Annexure “B”). The modification excluded part of the forest area of Sonadia island from the list of ECA on the erroneous ground that the said forest area was a ‘reserve forest’ and as such was under the management of the forest division and regulated by the provisions of the forest law, wild life law and government approved management plans. True copy of the impugned notification dated 03.05.1999 is annexed hereto and marked as Annexure “G”.

16. That such exclusion of an area of 2121.96 acres from the total ECA of 4,916 hector virtually means that, (a) 10, 016. 3116 acres (4056. 606198 hectors) of land of the ECA of Sonadia Island still remains to be ECA, and (b) the rest 2121.96 acres are neither ECA nor reserve forest and as such receiving no special protection/conservation measures either under the Forest Act, 1927 or the Environment Conservation Act, 1995. Taking advantage of such administrative vacuum, the unscrupulous businessmen resorted to clearing the forest area of Sonadia for their anti-environment business activities including shrimp cultivation and environmentally hazardous activities in clear violation of the Environment Conservation Act, 1995, the rule of 1997 made thereunder, the Forest Act, 1927 and the Gazette notification dated 19 April, 1999 (as of Annexure “B”).

17. That on the basis of the above findings and being seriously aggrieved by the callousness of the Respondents in protecting the precious eco-system of the Sonadia Island, the petitioner served a Notice of Demand for Justice dated 02.09.02 upon the Respondents demanding cancellation of the impugned notification dated 03.05.99 (as of Annexure “G”) as being erroneous and misconceived on the face of the record. True copy of the said Notice of Demand for Justice dated 02.09.02 is annexed hereto and marked as Annexure “H”.

18. That the Respondent No. 3 by a letter dated 02.10.02 replied to the said Notice of Demand for the Justice served by the petitioner. In the reply, the Respondent No.3 admitted the fact that the process of declaring part of Sonadia Island as reserve forest was not completed inasmuch as demarcation of the reserve forest and publication of the notification as required under sections 4 of the Forest Act, 1927 were never completed by the Additional Deputy Commission (Revenue) who was appointed the FSO (as of Annexure “F”). True copy of the said reply of the Respondent No. 3 dated 02.10.02 is annexed hereto and marked as Annexure “I”.

19. That the said reply as given by the Respondent No. 3 also admitted the allegation of the petitioner about encroachment of the forest land of Sonadia Island that was declared ECA and attempted to be declared ‘reserve’ forest. While the Respondent No. 3 held the local influential people with political blessings as responsible for such encroachment, it was also critical of the role of the revenue Department that was leasing out the coastal khas land to shrimp cultivators being under the administrative control of Respondent Nos.2 and 4. The said Respondent No. 3 claimed to have filed civil suits praying cancellation of such lease granted by the Respondent No. 2 and also criminal cases against the encroachers.

20. That similar reply to the Notice of Demand for Justice (as of Annexure “H”) was also given by the Respondent No. 5 vide letter dated 16.09.02. True copy of the reply given by the Chief Conservator of Forest dated 16.09.02 is annexed hereto and marked as Annexure “J”.

21. That as stated by the Respondent Nos. 5 and 7 in their replies to the petitioner (as of Annexures “I” and “J”), the coastal afforestation done in the newly accreted char lands of the coastal belts including the land of Sonadia Island was needed to protect and preserve the char land from erosion and also to save the country-side areas and people living therein from being inundated and swept by the tidal bore during natural disaster.

22. That available court records suggest that the Coastal Afforestation Department of the Respondent No. 1 filed miscellaneous suit No. 30 of 2002 against respondent No. 4 along with Assistant Commissioner (Land) and 45 individuals seeking injunction against them to prevent leasing out of scheduled land measuring 1895.36 acre. True copy of the plaint of the said miscellaneous case is annexed hereto and marked as Annexure “K”.

23. That it is evident from the above facts and circumstances, that 2121. 96 acres of the forest area of the Sonadia Island has no special protection either as ECA or as ‘reserve’ forest and that taking advantage of such administrative loophole, the Respondent Nos. 2 and 4 are attempting to lease out part of said forest area to influential people for shrimp cultivation and other non-afforrestation purposes. As a result the forest is fast disappearing and the denuded char land is being exposed to inundation subjecting the local inhabitants to the risks and dangers of natural disasters.

24. That the local people protested against such attempt of leasing out of forest area for shrimp cultivation and by their letter dated 01.08.02 lodged complaint to the Respondent No. 4 demanding protection of the forest area from unscrupulous shrimp cultivators who have been causing serious environmental degradation to the entire island. True copy of the letter of the local people dated 01.08.02 is annexed hereto and marked as Annexure “L”.

25. That it is humbly submitted that the declaration of the total of 4916 hector of land of the Sonadia Island establishes the facts that the mangrove forest of the said land area has special ecological significance that played crucial role in protecting and preserving the char land of Sonadia Island from erosion and also to save the people living nearby from being inundated and swept by the tidal bore during natural disaster.

26. That the fact that the government decided to declare part of the land of the Sonadia Island as ‘reserve’ forest also manifests the concern of the responsible authorities to accord special protection to the mangrove forest of Sonadia in stabilizing the newly formed land and allowing unhindered growth of the vegetation.

27. That is it most respectfully submitted that by excluding part of the forest land (as of Annexure “G”) from the list of ECA of Sonadia Island the Respondent No. 1 has acted on erroneous assumption that the said forest land area was ‘reserve’ forest and the activities conducted therein are regulated by the laws on forest, wildlife and other management plans of the government whereas in reality no such protection was accorded to the forest area in question.

28. That it is humbly submitted that this particular case is a classic example of conflicting and overlapping jurisdiction of authorities that aggravates due to lack of interagency coordination taking toll over nature, natural resources and people dependant on such resources. The vested interest groups and the land grabbers in cohesion with some corrupt and self motivated public servants are taking advantage of such administrative loopholes and are taking hold of the forest land of Sonadia for shrimp cultivation at the cost of the precious eco-system of the island.

29. That it is shocking to observe that while one public agency is claiming to have developed precious mangrove forest in the Island of Sonadia, the other public agency in total disregard of public trust and solely for the apparent sake of revenue earning, is purporting to lease out the same land showing the forest land as barren and fit for shrimp cultivation.

30. That it is submitted that such confusions and conflicts have already resulted in destruction of the mangrove forest that needs to be immediately stopped and corrective measures need to be taken to restore the forest to its original condition and preserve it in the best interest of the people.

31. That it is humbly submitted that the petitioner being the leading environmental organization in the country takes great interest in ensuring sound environment through proper observance of law by all concerned and is directly affected by such unlawful acts and deeds of the respondents. The failure by the Respondents in performing their legal duties and obligations have made the petitioner feel aggrieved and have thus filed this Writ Petition before the Hon’ble Court to uphold public interest.

32. That the application is filed in public interest and since the petitioner being not in possession of all original documents begs permission to file photocopies as annexures.

33. That the petition is bona fide to protect the forest land of Sonadia Island for ecological sake and also to protect the thousands of inhabitants of the said area who without the forest would be exposed to the risks and dangers of natural disaster and the relief sought for herein, if granted, shall be effective, efficacious and complete.

34. That having no other adequate efficacious remedy, the petitioner begs to move your Lordships on the following, amongst others:

G R O U N D S:

I. For that the exclusion of part of the of forest land of Sonadia Island (as of Annexure “G”) from the list of ECA by the Respondent No. 1 has no legal basis and without any lawful authority in as much as the said exclusion has been made on an erroneous assumption of the said forest land being ‘reserve’ forest and that Section 5 of the Environment Conservation Act, 1995 does not give the said Respondent any such power to modify or change the list of ECA so as to exclude areas and hence the impugned notification is liable to be set aside.

II. For that the fact that the area of forest land of Sonadia Island decided by the government to be declared ‘reserve’ could not be so declared for procedural incompleteness demonstrate failure by the Respondent No. 4 in performing statutory duties under the Forest Act, 1927 and managing public property as entrusted under Article 13 of the Constitution.

III. For that the failures by the Respondent Nos. 1, 2 and 4 in according special protection to the forest area of Sonadia Island negate their statutory obligations of protecting ecosystem and managing public property and jeopardize the rights of the petitioner and the local residents as guaranteed under Articles 31, 32 and 42 of the Constitution and hence appropriate direction and order from this Hon`ble Court is sought for.

IV. For that such failure by the Respondents in according special protection to the Sonadia Island and undertaking special management scheme for its conservation is allowing vested interest groups/land grabbers to grab the precious forest lands and use the same for purposes like shrimp cultivation in connivance with some unscrupulous public service officials.

V. For that the Respondents have utterly failed to exercise their lawful authority in protecting and conserving the Sonadia Island and has thus failed to discharge their obligation under the Constitution, the Environment Conservation Act, 1995 and the rules of 1997 made thereunder and the Forest Act, 1927.

VI. For that the unlawful acts of unscrupulous shrimp cultivators in violation of the applicable laws and rules have resulted in damage to the public property of the forest of Sonadia for which they are liable to compensate towards restoration of the eco-system and hence appropriate direction and order from this Hon`ble Court is necessary.

VII. For that the respondents are duty bound to ensure that environmental degradation is abated and prevented by the adoption of appropriate protection plan and having failed to exercise their legal obligation to the public in general they are required to be directed to perform their legal obligations by strict implementation Law of the land.

VIII. For that the respondents have totally failed to implement and perform the legal obligations bestowed upon them under the provision of the Environmental Conservation Act, 1995 (Act 1 of 1995) and the Forrest Act, 1927 and hence appropriate direction from this Hon’ble Court is prayed for.

WHERFORE it is most humbly prayed that your Lordship would graciously be pleased to:
a) Issue a Rule Nisi calling upon the Respondents to show cause as to why they should not be directed to:

(i) show cause as to why the Gazette Notification of Respondent No. 1 dated 03 May, 1999 No.-pabama-4/7/87/99 (as of Annexure “G”) excluding 2,794.04 hectors of forest area from the 4915 hectors of Ecologically Critical Area (ECA) of the Sonadia Island as declared vide Gazette notification dated 19 April, 1999, No. pabama-4/7/87/99/245 under section 5 of the Environment Conservation Act, 1995 shall not be declared erroneous, without lawful authority and of no legal effect as being violative of the petitioners and other inhabitants of the Island’s fundamental rights as guaranteed under Articles 27,31 and 42 of the Constitution.

(ii)undertake special protective measures as required under Section 5 of the Environment Conservation Act, 1995 to protect and conserve the 4916 hectors of Sonadia Island as an Ecologically Critical Area;

(b) Pending hearing of the Rule- (i) stay granting of lease of or otherwise tampering with the 4, 916 hectors of the forest land of Sonadia Island that was originally declared ECA vide Gazette notification dated 19 April, 1999, No. pabama-4/7/87/99/245 (as of Annexure “B”); (ii) direct the Respondent Nos. 1, 2, 3 and 4 to undertake investigation to identify and measure the areas within the 4, 916 hectors of the Sonadia Island where shrimp cultivation/clearing of forest is taking place or has taken place, list those who are involved in such cultivation/clearing and the enabling arrangements, assess in monetary terms the loss of forest resources for such individual shrimp cultivation/clearing of forest and submit a report on the same within two months before this Hon’ble Court;

(c) From the report to be submitted under prayer direct those involved in denuding forest-land for shrimp cultivation to pay back the price of the forest resource as recovery of public demands and also eviction of the unlawful encroachers;

(d) Cost of and incidental to this application be directed to be borne by the Respondents;

(e) After perusing the cause shown, if any, and hearing the parties make the Rule absolute;

(f) Any other or further order or orders as may be deemed fit and proper be also granted.

And for this act of kindness your petitioners as in duty bound shall ever pray.
AFFIDAVIT

I, Mirza Quamrul Hasan, son of ................... of House No. 9,Road No.8, Dhanmondi R/A, P.S. Dhanmondi, Dhaka, Aged about 50 years, by profession Lawyer ,by Nationality Bangladeshi, do here by solemnly affirm and say as follows :

1. That I am Member of Executive Committee of ‘BELA’ and as such I am fully conversant with the facts and circumstances of the case and competent to swear this affidavit.

2. That the statements made herein above are true to the best of my knowledge and beliefs

Prepared in my office.

( M IQBAL KABIR) (Mirza Quamrul Hasan)
ADVOCATE DEPONENT

The deponent is known to me and identified by me.

(M. IQBAL KABIR)
Advocate
Solemnly affirmed before
by the said deponent on
this the------day of
June, 2003 at---- a.m.

COMMISSIONER OF AFFIDAVITS,
SUPREME COURT OF BANGLADESH,
HIGH COURT DIVISION, DHAKA.

© 2010 Environmental Law Alliance Worldwide (ELAW)
U.S. Office: 1877 Garden Avenue, Eugene, OR 97403 USA
Phone: +1 541 687 8454
Fax: +1 541 687 0535
elawus@elaw.org

Environmental cases brought before courts in Bangladesh

Requesting the nuisance be stopped
- In Bangladesh Environmental Lawyers Assciation v. Electron Commission and others, it was stated that the unregulated use of loudspeakers, unscheduled processions, encroachment of public ways and writing on walls were a constant feature of election campaigns and were making life difficult for the people. Repeated directions by the Elections Commissioner to show respect for the laws were ignored. A public-interest suit was filed in the nature of a writ of mandamus requesting that either the nuisance be stopped or the election postponed. The matter was subsequently disposed of on the basis of the assurance of the Attorney-General and the leading political parties that all necessary steps would be taken to implement the directions of the Elections Commissioner. For the first time in the judicial history of the country a judgement expressed the desire of the court to mitigate hardships suffered by the people.
Removal of unjustified threat
- In another case - Dr Mohiuddin Farooque v. Bangladesh, the petitioner asked that 125 metric tons of milk powder imported from Estonia be returned as they were found to contain radioactive matter by the Atomic Energy Commission of Bangladesh. The milk powder which was shipped to Bangladesh from Holland was certified both by the producing and the exporting countries as being fit for human consumption. The certification was false. In the instant case the importer managed to obtain false evidence regarding the level of radioactive matter in order to get the milk out of the port of entry for sale. This was done despite the fact that the letter of credit provided that if the radiation level was found to be high in Bangladesh the exporter was bound to take back the goods. Instead of doing so the importer opted to try various means to get the milk released. The High Court Division dealt strongly with the case and directed the authority to "remove any unjustified threat" saying that "no one has any right to endanger the life of the people … by marketing in the country any food item injurious to the health of the people." This case expanded the horizon of the right to life and also the scope of potential consumers to file such public-interest cases.
Standing of a public-spirited person
- The landmark case in which the Appelate Division of the Supreme Court of Bangladesh allowed the appeal of Dr Mohiuddin Farooque v. Bangladesh and others on the point of the "standing" of Bangladesh Environmental Lawyers Association (BELA) in a public-interest suit. The court recognized the locus standi of a public-spirited person or organization to file cases on behalf of others who are unable to do so because of their inability to gain access to the justice system. Dr. Farooque was representing BELA as its Secretary-General and appeared himself in the case with the leave of the court.

Writ Petition

Writ Petition legal instrument of the superior courts for remedies to persons, natural or jural, against the arbitrary or illegal actions of any authority or the lower court. There are five kinds of writs, namely certiorari, habeas corpus, mandamus, prohibition and quo warranto. Originated first in England, these writs were exercised by the Judges of the King's Bench and called prerogative writs exercised by that Court on behalf of the King. Article 102 of the Constitution of Bangladesh provides for granting remedies similar to that of the above writs, though it does not speak of any of such writs in specific terms. Sub-clause (i) of clause (a) of sub-article (2) of article 102 provides for remedies similar to that of writs of prohibition and mandamus. Sub-clause (ii) of clause (a) of the same article provides for remedy similar to writ of certiorari. Sub-clause (i) of clause (b) of the sub-article (2) of article 102 provides for remedy similar to that of habeas corpus and sub-clause (ii) of the same clause (b) provides for remedy similar to that of quo warranto.

Certiorari means 'be certified' of the proceedings of any lower court or tribunal to be investigated by the superior court. Records of any pending or concluded proceedings before any authority or court including a tribunal can be called for by the High Court Division of the Supreme Court of Bangladesh for its examination as to the legality or otherwise of the said proceedings. Under sub-clause (ii) of clause (a) of article 102, not only legality of a proceedings but also any act done by a person, performing functions in connection with the affairs of the Republic or a local authority, can be declared to have been done without any lawful authority and with no legal effect. Thus remedy under the aforesaid sub-clause (ii) is wider than that of the remedy available in a writ of certiorari. In a writ of certiorari, superior court interferes when the lower court or tribunal acts without any jurisdiction or in excess of its existing jurisdiction or in cases where it fails to exercise its jurisdiction - for example, when it decides a case without giving an opportunity to the parties to be heard or violates the principle of natural justice or if there is an error apparent on the face of the record of such proceedings. But under sub-clause (ii) of clause (a) of article 102, the High Court Division can also declare any act done by any authority, which is neither a judicial nor a quasi-judicial, to be without lawful authority.

Habeas Corpus means 'have his body'. This is a British Law for the protection of liberty of a subject against his illegal detention in public or private custody since 1640. The King's Bench issues writ of habeas corpus to examine as to whether a person was illegally detained in custody.

Under sub-clause (i) of clause (b) of sub-article (2) of article 102 of the Bangladesh Constitution, the High Court Division, on the application of any person, directs that a person in custody be brought before it to satisfy itself as to whether he is being held in custody with or without lawful authority. If the Court finds that he is being illegally held in custody by the authority, it then can declare the same to be without lawful authority. Section 491 of the Code of Criminal Procedure also authorizes the High Court Division to issue a direction in the nature of a write of habeas corpus to bring before it a person detained in public or private custody in order to see as to whether he is being detained illegally or improperly. If the High Court Division finds that such a person is being held in custody, illegally or improperly, it then directs the detaining authority or person to set him at liberty.

Mandamus means 'we command'. By writ of mandamus, the superior court directs any person, corporation, lower court or government to do something, specified therein, which pertains to his or their office and is in the nature of a public duty. This writ is issued when the lower tribunal has declined to exercise jurisdiction vested in it or any public authority declined to do what he is required by law to do. Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution authorizes the High Court Division to direct a person performing functions in connection with the affairs of the Republic or a local authority to do what he is required by law to do. This remedy is available when any right of a person, arising from any law and not from any contract, is violated. The applicant must show that he has a legal right to the performance of legal duty by the person or authority against whom the writ is prayed for.

Prohibition means 'to forbid' from doing something. In other words, it is a writ issued by the superior court to a lower court, tribunal or administrative authority prohibiting it from doing something which it is not authorized by law to do. Prohibition is a preventive writ and issued to stop illegal exercise of power of jurisdiction to the detriment of any legal right of a person. Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution authorizes the High Court Division to direct a person performing any functions in connection with the affairs of the Republic or local authority to refrain from doing what he is not permitted by law to do.

Quo Warranto means 'by what warrant or authority'. Writ of quo warranto provides remedy against illegal occupation or usurpation of any public office or franchise or liberty. It enables inquiry into the legality of the claim, which a person asserts to an office or franchise and to oust him from such position, if he is an usurper. The holder of the office has to show to the court under what authority he holds office. Such remedy is available under sub-clause (ii) of clause (b) of sub-article (2) of article 102 of the Constitution from the High Court Division. 

The judgment of 5th Amendment case: Withdrawal of appeal and pitfalls

Md. Abdul Halim, Bar-at-Law

The judgment in 5th Amendment case declaring the 5th Amendment to the Constitution illegal delivered in 2005 by a Division Bench of the High Court Division has so far raised little hue and cry until May 4th 2009 when the Attorney General surprisingly moved a petition for withdrawing the leave-to-appeal petition in such a case having grave constitutional implications and interpretations. As the present government has decided not to continue the appeal any more, the Appellate Division has allowed filing of petitions for leave to appeal by Khandker Delwar Hossain and other two interveners. This write-up is intended to explore some constitutional issues involved in the judgment of 5th Amendment case and the pitfalls in withdrawal of the appeal.

Apart from declaring the 5th Amendment illegal and ineffective, the judgment has also declared illegal and void the martial law proclamations, including the Martial Law Regulation 7 of 1977 that deals with abandoned property, and all actions done under the martial law between 15th August, 1975 and April 1979. The court held that usurpation of the state power through martial law proclamation, particularly by Khondoker Mostaque Ahmed, Justice Abu Sadat Mohammad Sayem and Major General Ziaur Rahman was unconstitutional. The judgment as it is reported in BLT Special Issue 2006 contains 242 pages with 22 points in its operative part. The judgment is largely based on some doctrines under constitutional jurisprudence: doctrine of illegality or unconstitutionality, doctrine of basic structure, the power of judicial review under a written constitution (constitutional ultra vires) and principle of oath of office under the constitution. Apart from the scrutiny of limits of some these doctrines, there are some jurisdictional and constitutional continuation issues which the Appellate Division should examine in detail.

'Past and closed transaction' and 'Condonation':

His Lordship Mr. Justice A.B.M. Khairul Hoque held categorically in the judgment:

All acts and things done and actions and proceedings taken during the period from August 15, 1975 to April, 9, 1979 are condoned as past and closed transactions but such condonations are made not because those are legal but only in the interest of the Republic in order to avoid chaos and confusion in the society, although distantly apprehended, however, those remain illegitimate and void forever.

The preamble, Articles 6, 8, 9, 10, 12, 25, 38 and 142 remain as it was in the original Constitution. No condonation is allowed in respect of these provisions of the Constitution.

Besides, Article 95, as amended by the Second Proclamation Order No. IV of 1976 is declared valid and retained.

Various Ordinances passed during the period between August, 1975 and April, 1977 are condoned.

Thus it is clear that on question of condonation the court has adopted the method of pick and choose. While declaring the whole amendment illegal and then accepting part of it as legal; condoning all laws passed by way of ordinances and then retaining the provisions in Article 95 as amended by the 5th Amendment seem irrational and needs further scrutiny by the Appellate Division.

Likewise, the extent and limit of the doctrine of 'past and closed' transaction needs more scrutiny by the Appellate Division. Can any criminal liability be condoned by this type of judgment? If so, the trial and imposition of punishment for killing of Banglabandhu Sheikh Miujib would be impossible in the eye of law as this would also be a part of 'past and closed transaction'. Second, if all transactions including acquisition of properties under Martial Law order and rules are treated as 'past and closed transactions' judicially, how can the court give order for returning the ownership of Moon Cinema Hall? Is the door of judicial remedies for any other affected person during that period is closed forever?

Disputed 4th Amendment and the 5th Amendment Case:

The High Court Bench was mindful of the undemocratic provisions of the disputed 4th Amendment to the Constitution. However, Their Lordship stated that first, the 4th Amendment was not an issue before them; second, the said amendment was passed by a sovereign parliament, admittedly by overwhelming majority of the representatives of the people, and third, the 4th Amendment was never challenged before any court. There is no doubt with regard to first and third arguments of their Lordship. However, it is respectfully arguable that even a parliament with overwhelming majority cannot change the basic structure of the Constitution as held in 8th Amendment case. Second, as their Lordship were concerned with 5th Amendment only. They lacked jurisdiction admittedly to alter or retain any provision introduced by the 4th Amendment which was not issue before them. However, their Lordship avowedly and in self-contradicting manner retained some provisions altered by the 4th Amendment. For example, provisions of 'consultation with Chief Justice' while appointing judges under Article 95 was deleted by the 4th Amendment but restored by the 5th Amendment. If their Lordship wanted to scrap 5th Amendment, how did they go beyond their admitted limit and scrapped part of the 4th Amendment? Third, the Appellate Division should examine the limit of the doctrine of judicial review; judicial review power is not and cannot be equivalent to the plenary law making power of the parliament. By way of exercising judicial review power, the High Court Division cannot directly make law; direct law making power, i.e., plenary law making power is the prerogative of the parliament. The judiciary can only see if the parliament by using its plenary power is transgressing the bounds of the constitution or not. While admitting that any provision of 4th Amendment was not issue before them and at the same time scrapping provisions of 4th Amendment and retaining provisions in the original Constitution, their Lordships seem to have taken self-contradicting step. Fourth, the judgment in 5th Amendment case arose from a writ petition filed in 2000 under Articles 102(1) and 44 of the Constitution. Both these Articles were deleted by the 4th Amendment and had they not been restored by the 5th Amendment, their Lordship would not have any jurisdiction to even hear the matter; let alone pronouncing any judgment. Their Lordship's oath of office of which they have given the utmost importance in their judgment and sacred duties imposed upon them under Articles 102(1) and 44 is itself the result of the 5th Amendment as this amendment restored them. Declaring 5th Amendment illegal would, therefore, also mean the non-existence of Articles 102(2) and 44 of the Constitution. No point with regard to this vital issue was raised before their Lordship and as such it is arguable that declaring 5th Amendment illegal without first declaring 4th Amendment illegal would necessarily mean total lack of jurisdiction of the apex court to hear any writ on fundamental rights.

Oath of Office of Judges and Constitutional Continuity:

His Lordship started his judgment with the utmost importance and solemnity of His oath of office. Certainly His Lordship did not take oath under the original Constitution; oath was administered under the Constitution as it stood on the day of oath. If they were administered oath under the Constitution as stood after 4th Amendment which their Lordship admitted was passed by sovereign parliament with overwhelming majority of the peoples' representative, they would certainly not have been in a position to hear a writ for enforcing fundamental rights as Articles 102(1) and 44 were completely wiped out from the Constitution. If today the 5th Amendment is upheld, the Constitution will be, by operation of judgment, without Articles 102(1) and 44 and in such a situation the apex court will not have any jurisdiction to hear any writ for fundamental rights. What will be then the position of pending writs and writs already disposed of in last 31 years, bearing in mind that both these Articles were restored by President Sayem on 28th May, 1978 by the 2nd Proclamation (Seventh Amendment) Order? Thus on jurisdictional issue it is likely that constitutional continuity will be hampered if the judgment in 5th Amendment is upheld.

Preamble and Bismillahir Rahmanir Rahim:

The original constitution did not use these religious words in the preamble of the constitution. These words, inter alia, were inserted by Proclamations (Amendment Order) Order, 1977 by late President Ziaur Rahman and in the very first edition of my book on Constitution, Constitutional Law and Politics this writer commented that these religious words were inserted with a political end. It was a constitutional tricks played by Ziaur Rahman especially to get quick support from a large section of people who are religious but illiterate and politically unconscious. The 5th Amendment judgment is completely silent about this meaning that if this judgment is upheld, Bismillahir Rahmainr Rahim will no longer be in the constitution although the law Minister is advocating that this would not be so.

Judgment in 5th Amendment case: Bandwagon for Law Minister?

The Law Minister Barrister Shafique Ahmed stated that over 50 religion-based political parties will get banned if the Appellate Division upholds the High Court Division's judgment. This is true but it is difficult to understand why a political government should cry for riding over a shoulder of a judicial caravan for amendment to the Constitution. The ruling party has more than two-thirds majority in the parliament and they can easily bring about necessary changes to the Constitution with a view to returning to the original Constitution. This is reinforced by the fact that the judgment in 5th Amendment will restore the position before the declaration of martial law in 1975 and this will, in no way, bring back the provisions of the original Constitution.

Finally, if the judgment in the 5th amendment case is upheld, some important decisions by the Appellate Division in Halima Khatun V. Bangladesh, Sultan Ahmed V. Chief Election Commissioner, Haji Jaynal Abedin V. State, Jamil Haque V. Bangladesh, Nasiruddin V. Bangladesh, Khandakar Mostaque Ahmed V. Bangladesh, Khandker Ehtesamuddin Ahmed V. Bangladesh, Bangladesh V. Mahbubur Rashid, Presidents Secretariat V. K. Mahtabuddin Ahmed, Nasir Kader Siddiqui V. Bangladesh will be affected as these judgment accepted that martial law proclamation, regulation etc, were supreme law and the Constitution lost its character as supreme law. 

Supreme Court Under the Constitution

The Supreme Court of Bangladesh, with the sitting judges and the Chief Justice, is the repository of judicial power at the national level and the upholder and final interpreter of the Constitution of the People's Republic of Bangladesh (Constitution) as well as the defender of the Constitution and rule of law in the Country. Part-VI of the Constitution relates to jurisdiction of the Courts. It contains 3 chapters of which Chapter-I provides power and authority of the Supreme Court, Chapter-2 relates to the Sub-ordinate Courts and Chapter-3 deals with the Administrative Tribunal.

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 Supreme Court consists of the Chief Justice and such number of other judges, as the President may deem it necessary to appoint in each of the Divisions. The Constitution provides for one Chief Justice for both the Divisions and that the Chief Justice and the judges appointed to the Appellate Division are to sit in the Appellate Division, whereas the judges appointed in the High Court Division are to sit in the High Court Division. The Chief Justice is known as Chief Justice of Bangladesh. Article 95 of the Constitution provides that the Chief Justice and other judges shall be appointed by the President and a person shall not be qualified for appointment as a judge unless he is a citizen of Bangladesh and has acquired the required qualifications as enumerated in Article 95. At the present, as per article 96, a judge shall not be removed from office unless he ceased to be capable of properly performing his functions because of physical or mental incapacity or is found to be guilty of gross misconduct, through an inquiry to be conducted by the Supreme Judicial Council, which Council consists of the Chief Justice and the next two senior judges, and the judges are to observe the prescribed Code of Conduct framed by the Supreme Judicial Council. Article 97 provides for temporary appointment for performing the functions of the performing Chief Justice, as and when necessary, in the absence of the Chief Justice on account of illness or any other cause, and such appointment is to be given by the President to the senior judge of the Appellate Division next to Chief Justice. Article 98 provides for appointment of Additional Judge(s) in the Supreme Court for any period not exceeding two years and a judge of the High Court Division may be required to sit in the Appellate Division for a temporary period as an ad-hoc judge. Normally, a judge is appointed afresh on regular basis under article 95 of the Constitution, after his satisfactory performance as an Additional Judge, appointed under article 98. Article 100 of the Constitution provides that the permanent seat of the Supreme Court shall be in the Capital. However, judges of the High Court Division may be required to sit at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint. Articles 101 and 102 provides the jurisdiction and power of the High Court Division in exercising its judicial functions and articles 102, 104 and 105 provide the jurisdiction and power of the Appellate Division in exercising its judicial functions. The Appellate Division is also given the advisory jurisdiction to give opinion to any question of law relating to such national and public importance as may appear to the President, which may be referred by him under Article-106. Article 107 provides the rule making power of the Supreme Court and the authority of the Chief Justice in constituting Benches of any Division. Article-108 empowers the Supreme Court to order for investigation and award punishment for any contempt. Article 111 declares the binding effect of law declared by the Appellate Division on all authority of the Republic and the Courts including the High Court Division and the binding effect of the law declared by the High Court Division upon all authority of the Republic and the Subordinate Courts. Article 112 requires all authority, executive and judicial, in the Republic to act in aid of the Supreme Court. Article 107 provides authority to the Supreme Court to make rules for regulating, practice and procedure of both the Divisions of the Supreme Court or any Sub-ordinate Court, subject to approval of the President, and article 113 gives the authority to the Chief Justice or such other judge or officer, as he may direct, for appointment of staff of Supreme Court in accordance with the rules framed with previous approval of the President, and such appointment and service condition of the Supreme Court staff are guided by the rules framed by the Division concern. The power to issue writ to redress the violations of rights guaranteed by the fundamental rights, detailed in Part-III of the Constitution, and the authority to declare any law promulgated inconsistent with the rights guaranteed under Part- III of the Constitution, as void has been exclusively vested with the High Court Division under the provisions of articles 44 and 102 of the Constitution. Article-109 has given the High Court Division the power and authority of superintendence and control over all Courts and Tribunals, sub-ordinate to it. Article-110 authorizes the High Court Division to call for any case, pending before any subordinate Court, requiring determination of a substantial question of law as to the interpretation of the Constitution, or any point of public importance, for disposal of the case by itself or to determine the question of law and then send back the case to the trial Court for disposal in conformity with the answer given by the High Court Division. Article-114 provides for establishment of Courts subordinate to the Supreme Court and normally the sub-ordinate Courts under civil jurisdiction are set up under the provisions of the Civil Courts Act, 1887 and those of criminal jurisdiction are set up under the Code of Criminal Procedure, 1898. Persons employed in judicial service and Magistracy are independent in exercising their respective judicial functions.

The Appellate Division of the Supreme Court of Bangladesh has seven judges including the Chief Justice and the High Court Division has sixty seven judges.

Ref : ANNUAL REPORT 2008 OF THE SUPREME COURT OF BANGLADESH 

Writ against Qurbani rejected by High Court

MOHESHWAR FINED TK 5,000

Writ against Qurbani rejected
by High Court
Special Correspondent
The High Court Thursday summarily rejected the controversial writ petition filed by a Hindu community leader who asked for correcting the Holy Quran’s narration of the holy sacrifice (Qurbani) of prophet Ibrahim.
   Dev Narayan Moheshwar, President of Vishwa Shanti Parishad, the petitioner, was also fined taka five thousand for attempting to ignite communal fire in the society.
   After the pronouncement of the order, the members of the public present outside the court tried to manhandle Dev Narayan who was quickly rescued and escorted to a safer place by police.
   He, however, was not arrested for hurting the religious sentiments although various Islamic groups and scholars accused him of inciting communal tension and demanded stern action against him.
   Earlier on August 1 last, Dev Narayan Moheshwar filed a Writ petition with the High Court Division of the Supreme Court challenging the Muslims’ religious ritual that they believed and observed for thousands of years.
   Dev Narayan in his petition sought the HC’s direction that Hazrat Ibrahim (As), the father of the Muslim nation, took Hazrat Ishak (As) for sacrifice, not Hazrat Ismail (As) setting the practice of the “qurbani”.
   He also prayed the court’s explanation on the matter, its direction to change lessons of the curriculum texts in educational institutions as per his demands, and purity of the Holy Quran about it.
   According to the Muslim tradition, Hazrat Ibrahim (As), receiving direction from Almighty Allah, was about to sacrifice his son Hazrat Ismail (As), observed Eid-ul-Azha once a year and sacrifice animals as a symbol of sacrifice. The bench of HC Division comprising Justice Md Abdul Wahhab Miah and Justice Md Rezaul Haque heard the petition and delivered its order on the matter.
   However, fight of nerve among the two communities’ followers has already been reflected in the web-based social sites and conversations in some cases since filing of the Writ with High Court on August 1. Removing “Absolute trust and faith in Allah” from the Constitution and the Writ challenging purity of the Holy Quran are tied with the same rope as a part of great conspiracies against Islam, leaders of different Islamic parties alleged.
   Meanwhile, two separate cases were filed in the district courts in Bhola and Tangail against Deb Narayan Moheshwar for hurting Muslims’ sentiment.

Legal System has developed gradually in Bangladesh

Legal System  has developed gradually in Bangladesh with her growth as a nation over the centuries. Before the advent of British rule this part of the country was under Mughal rule. The Mughals seized power from the Turko-Afghan sultans who ruled the country since the beginning of the 13th century. It was under the Aryan rule since 6th or 7th century BC when they conquered the land by vanquishing the indigenous people. During the Turko-Mughal rule the country formed the eastern part of Subah Bangla and, during the British rule, eastern part of the province of Bengal.
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.
After Bengal came under Aryan rule, the system of law of the Aryans as modified by local customs and usages was in operation. 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 new legal system. In Bengal Jimutabahana's Dayabhaga, a digest of all codes of hindu law was followed in respect of inheritance and partition of joint property 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 justice the principles of Islamic law were applied. 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 sultanat except the rulers of Hossain Shahi Dynasty could rule the country for long. Hence those rulers could not consolidate their power to administer the country peacefully.
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. 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 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 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 by 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 fauzdar 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. He 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 amin 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.
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. On the other hand, the Supreme Court tried other civil disputes and also tried the accused charged with grave offences with the help of grand jury and petty jury. 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. Those courts 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 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. He abolished the circuit courts of sessions and the divisional courts. He appointed divisional commissioners not only to supervise the functions of the collectors but also to hold sessions to try offenders charged with grave offences. He also made a regulation authorizing the governor general to empower district judges to hold sessions to try cases of grave offences. 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 laws with 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.
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 these 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. 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 1885, easements act 1882, Civil Courts Act 1871, and myriad other Acts, all incorporating principles of English Law. Code of Criminal Procedure, Code of Civil Procedure, Civil 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 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 other remedies.
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 directives 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 laws 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 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 some procedure. 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 in 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 cases 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. Though the subordinate judiciary is independent in exercising of judicial power, the same is under eclipse due to the absence of separation of the lower judiciary from the 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 1996, thirteen amendments have been made. All laws of the country are subordinate laws made by the elected 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 or authority. Claims regarding money, property, compensation etc is to be filed before the civil court presided over by the assistant judge or subordinate 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 the magistrate of the first class of the locality. The police investigates the 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  Legal System of Bangladesh, Dhaka,1991