JUSTICE SYSTEM IN BANGLADESH
Legal system: mixed legal system of mostly English common law and Islamic law. [Source: CIA World Factbook, 2020 =]
The legal system of Bangladesh is modeled somewhat after the British legal system, which in turn was adapted by India, then Pakistan, then Bangladesh. The Supreme Court is the highest court of the land. Below it are criminal courts and civil courts. Prosecutors have a reputation for being corrupt. People sometimes have to pay them to pursue a case. Bangladesh, along with Japan, South Korea, Bhutan, Indonesia, Malaysia and Pakistan have the death penalty. In ancien times, criminals and rebels were thrown to their death under the feet of elephants.
The Bangladeshi Constitution outlines and makes provisions for an independent judicial system. system. A Low Court and a Supreme Court hear civil and criminal cases. Civil laws include elements of Islamic and Hindu law that relate to social matters such as marriage and family issues. The Low Court consists of magistrate courts. The Supreme Court has two parts: 1) the High Court, which hears original cases as well as reviews cases decided in the Low Court; and 2) the Appellate Court, which hears appeals from the High Court and is the highest court of appeal. [Source: “Gale Encyclopedia of World History: Governments”, Thomson Gale, 2008]
Trials are public, and citizens have rights of counsel and appeal. When was part of British India and Pakistan, what is now Bangladesh used the jury trial system. Because of high rate of acquittal, the system was abolished in East and West Bangladesh in 1960. There has been some discussion of reviving the jury system. There is a system of bail.
Bangladesh has not submitted an International Court of Justice (ICJ) jurisdiction declaration; accepts International Criminal Court (ICCt) jurisdiction. 59 countries have accepted ICJ jurisdiction with reservations and 11 have accepted ICJ jurisdiction without reservations; 122 countries have accepted ICCt jurisdiction. =
Judicial Branch of Bangladesh
Judicial branch: highest courts: Supreme Court of Bangladesh (organized into the Appellate Division with 7 justices and the High Court Division with 99 justices). Judge selection and term of office: chief justice and justices appointed by the president; justices serve until retirement at age 67. Subordinate courts: civil courts include: Assistant Judge's Court; Joint District Judge's Court; Additional District Judge's Court; District Judge's Court; criminal courts include: Court of Sessions; Court of Metropolitan Sessions; Metropolitan Magistrate Courts; Magistrate Court; special courts/tribunals [Source: CIA World Factbook, 2020]
According to the “Worldmark Encyclopedia of Nations”: The judicial system, modeled after the British system, is similar to that of other South Asian countries: India, Pakistan and Myanmar too. The 1972 constitution provides for an impartial and independent judiciary. After the 1982 coup, the constitution was suspended, martial law courts were established throughout the country, and Lieut. Gen Ershad assumed the power to appoint judges. The constitution was reinstated in November 1986. [Source: “Worldmark Encyclopedia of Nations”, Thomson Gale, 2007]
“The government, with the help of the World Bank, has under-taken an ambitious project to reform the judicial system. Changes include the creation of "Legal Aid Committees" to provide assistance to the poor, as well as the establishing of Metropolitan Courts of Sessions in Dhaka and Chittagong. In March 2001, the World Bank announced the approval of a us$30.6 million credit to assist Bangladesh in making its judicial system more efficient and accountable. A permanent Law Commission has been created to reform and update existing laws, and the government is committed to establishing a Human Rights Commission as well as an Office of the Ombudsman.
Courts in Bangladesh
The Low Court (lower courts) and a Supreme Court both hear civil and criminal cases. The Low Court consists of administrative courts (magistrate courts) and session judges. The Supreme Court, as was said before, is comprised of two divisions, a High Court and which hears original cases and reviews decisions of the Low Court, and an Appellate Court which hears appeals from the High Court. In the 2000s, the upper-level courts exercised independent judgment and ruled against the government in a number of criminal, civil, and even political trials. A huge backlog of cases is one of the major problems of the court system. [Source: “Worldmark Encyclopedia of Nations”, Thomson Gale, 2007]
The government operates courts in the regions, districts, and subdistricts that make up the local administrative system. The judges in these courts are appointed by the president through the Ministry of Law and Justice or the Ministry of Home Affairs. Most cases heard by the court system originate at the district level, although the newer subdistrict courts experienced an increased caseload in the late 1980s. Upon appeal, cases may go up to the Supreme Court, but litigation may be very slow; in 1987 there were 29 Supreme Court judges dealing with 21,600 pending cases. The Supreme Court, as of June 1988, had permanent benches — called the High Court Division — in Dhaka, Comilla, Rangpur, Barisal, Sylhet, Chittagong, and Jessore. It hears appeals from district courts and may also judge original cases. The Appellate Division of the Supreme Court in Dhaka reviews appeals of judgment by the High Court Division. The judges of both divisions are appointed by the president. [Source: James Heitzman and Robert Worden, Library of Congress, 1989 *]
At the grass-roots level, the judicial system begins with village courts. An aggreived party may make an official petition, which requires a fee, to the chairman of the union council (the administrative division above the village), who may call a session of the village court with himself as chairman and two other judges nominated by each of the parties to the dispute. The parties may question the impartiality of the chairman and have him replaced. The majority of cases end at the village court level, which is inexpensive and which hands down judgments that reflect local opinion and power alignments. There are occasions, however, when the union council chairman may reject an official petition to constitute a village court or when one party desires a higher opinion. In these cases, the dispute goes to a government court at the subdistrict level. Cases may wind their way up from district courts to permanent benches of the High Court Division. Once cases leave the village courts, they become expensive affairs that may last for years, and few citizens have the financial resources to fund a lengthy court battle.
Rapid political changes in independent Bangladesh have compromised the court system. The Constitution originally stated that the president could remove members of the Supreme Court only if two-thirds of Parliament approved, but the Proclamation (Amendment) Order of 1977 included a clause that eliminated the need for parliamentary involvement. The clause set up the Supreme Judicial Council, consisting of the chief justice and the next two senior judges. The council may determine that a judge is not "capable of properly performing the functions of his office" or is "guilty of gross misconduct." On their advice, the president may remove any judge. In addition, executive action has completely eliminated judicial authority for long periods. For example, under martial law regulations enacted in 1982, the Supreme Court lost jurisdiction over the protection of fundamental rights, and all courts operated under provisions of law promulgated by the chief martial law administrator; special and summary martial law courts handed down judgments that were not subject to review by the Supreme Court or any other court. Furthermore, the Fifth Amendment and the Seventh Amendment placed martial law proclamations and judgments outside the review of the court system. In these ways, the courts have been forced to serve the interests of the ruling regime, rather than standing as an independent branch of government.
Criminal Justice and Penal Codes in Bangladesh
According to the “Worldmark Encyclopedia of Nations”: The judicial system, modeled after the British system, is similar to that of other South Asian countries: India, Pakistan and Myanmar too. In addition to the 1972 constitution, the fundamental law of the land, there are codes of civil and criminal laws. The civil law incorporates certain Islamic and Hindu religious principles relating to marriage, inheritance, and other social matters. [Source: “Worldmark Encyclopedia of Nations”, Thomson Gale, 2007]
In general, the criminal codes and procedures in effect in Bangladesh derive from the period of British rule, as amended by Pakistan and Bangladesh. These basic documents include the Penal Code, first promulgated in 1860 as the Indian Penal Code; the Police Act of 1861; the Evidence Act of 1872; the Code of Criminal Procedure of 1898; the Criminal Law Amendment Act of 1908; and the Official Secrets Act of 1911. [Source: James Heitzman and Robert Worden, Library of Congress, 1989 *]
The major classes of crimes are listed in the Penal Code, the country's most important and comprehensive penal statute. Among the listed categories of more serious crimes are activities called "offenses against the state." The Penal Code authorizes the government to prosecute any person or group of persons conspiring or abetting in a conspiracy to overthrow the government by force. An offense of this nature is also defined as "war against the state." Whether or not an offense constitutes a conspiracy is determined by the "intent" of the participant, rather than by the number of the participants involved, so as to distinguish it from a riot or any other form of disturbance not regarded as antinational. Section 121 of the Penal Code makes antinational offenses punishable by death or imprisonment for twenty years. The incitement of hatred, contempt, or disaffection toward a lawfully constituted authority is also a criminal offense punishable by a maximum sentence of life imprisonment. Among other categories of felonies are offenses against the public tranquillity (meaning unlawful assembly), rioting, and public disturbances; offenses relating to religion; and offenses against property, such as theft, robbery, and dacoity (robbery by a group of five or more persons).*
Legal Proceedings in Bangladesh
According to “Countries and Their Cultures”: “Legal procedures are based on the English common-law system, and supreme court justices and lower-level judges are appointed by the president. District courts at the district capitals are the closest formal venues for legal proceedings arising from local disputes. There are police forces only in the cities and towns. When there is a severe conflict or crime in rural areas, it may take days for the police to arrive. [Source: “Countries and Their Cultures”, The Gale Group Inc., 2001]
“In rural areas, a great deal of social control takes place informally. When a criminal is caught, justice may be apportioned locally. In the case of minor theft, a thief may be beaten by a crowd. In serious disputes between families, heads of the involved kinship groups or local political leaders negotiate and the offending party is required to make restitution in money and/or land.
“Police may be paid to ensure that they do not investigate. Nonviolent disputes over property or rights may be decided through village councils (panchayat ) headed by the most respected heads of the strongest kinship groups. When mediation or negotiation fails, the police may be called in and formal legal proceedings may begin. People do not conceive of the informal procedures as taking the law into their own hands.”
In 2000, Sheikh Hasina attempted to crack down on criminals and Communist insurgents by ramming a draconian Public Safety Bill through Parliament while the opposition was out of the building. The bill raised the punishment for many crimes, including public disorder. It also allowed authorities to imprison "enemies of the state" for 90 days — without bail. Critics saw the bill as a means of cracking down on political opponents.
Bangladesh has a huge backlog of unresolved civil and criminal cases. Political clout is believed to be the main factor behind most of the unsolved murder cases. In Bangladesh, it is common for the government to file politically motivated cases against members of the opposition, and these cases are withdrawn or scuttled when the opposition returns to power.
Punishments and Prisons in Bangladesh
Punishment is divided into five categories: death; banishment, ranging from seven years to life; imprisonment; forfeiture of property; and fines. The imprisonment may be "simple" or "rigorous" (hard labor), ranging from the minimum of twenty-four hours for drunken or disorderly conduct to a maximum of fourteen years at hard labor for more serious offenses. Juvenile offenders may be sentenced to detention in reform schools for a period of three to seven years. For minor infractions whipping, not exceeding fifteen lashes, may be prescribed as an alternative to detention. [Source: James Heitzman and Robert Worden, Library of Congress, 1989 *]
Preventive detention may be ordered under the amended Security of Pakistan Act of 1952 and under Section 107 of the Code of Criminal Procedure when, in the opinion of the authorities, there is a strong likelihood of public disorder. Bangladeshi regimes have made extensive use of this provision. Similarly, Section 144 of the Code of Criminal Procedure, frequently invoked by magistrates for periods up to two months, prohibits assembly of five or more persons, holding of public meetings, and carrying of firearms. In addition, the Disturbed Areas (Special Powers) Ordinance of 1962 empowers a magistrate or an officer in charge of a police contingent to open fire or use force against any persons breaching the peace in the disturbed areas and to arrest and search without a warrant. The assembly of five or more persons and the carrying of firearms may also be prohibited under this ordinance.*
Persons charged with espionage are punishable under the Official Secrets Act of 1911, as amended in 1923 and 1968. As revised in May 1968, this statute prescribes death as the maximum penalty for a person convicted of espionage. In 1966, in an effort to prevent information leaks, the central government passed a regulation prohibiting former government officials from working for foreign diplomatic missions. In general, all persons seeking employment with foreign embassies or any foreign government agencies were also required to obtain prior permission from Bangladeshi authorities.*
The custody and correction of persons sentenced to imprisonment is regulated under the Penal Code of 1860, the Prisons Act of 1894, and the Prisoners Act of 1900, as amended. The prison system has expanded but in 1988 was basically little changed from the later days of the British Raj (see Glossary). The highest jail administration official is the inspector general of prisons or, if this office is not separately assigned, the inspector general of police. At the division level or the police range level, the senior official is called director of prisons; at the district level, he is the jail superintendent. Below the district jail level are the subdistrict and village police lockups. Dhaka Central Jail is the largest and most secure prison and has more extensive facilities than those at the successive lower echelons. All installations are staffed by prison police usually permanently assigned to this duty. In general, prisons and jails have low standards of hygiene and sanitation and are seriously overcrowded. Rehabilitation programs with trained social workers were rudimentary or nonexistent through the late 1980s. Overcrowding — the most serious basic problem — was likely to worsen as the 1990s approached because of the mounting number of arrests connected with opposition campaigns to oust Ershad from office.*
Sharia (Islamic Law) in Bangladesh
The statutes of Bangladesh conform to Islamic laws, but the system of law in the courts derives from English common law. In rural areas, where the majority of Bangladeshis live, rural clerics often enforce Islamic laws and interpretations of conservative Islam and local customs often guide legal decisions. The use of strict Islamic Law is technically illegal in secular Bangladesh but harsh Islamic punishments such as stoning and flogging have been meted out from time to time in rural areas.
In Bangladesh, where a modified Anglo-Indian civil and criminal legal system operates, there are no official sharia courts. Most Muslim marriages, however, are presided over by the qazi, a traditional Muslim judge whose advice is also sought on matters of personal law, such as inheritance, divorce, and the administration of religious endowments (waqfs). [Source: James Heitzman and Robert Worden, Library of Congress, 1989 *]
In the late 1980s, the ulama of Bangladesh still perceived their function as that of teaching and preserving the Islamic way of life in the face of outside challenges, especially from modern sociopolitical ideas based on Christianity or communism. Any effort at modernization was perceived as a threat to core religious values and institutions; therefore, the ulama as a class was opposed to any compromise in matters of sharia. Many members of the ulama favored the establishment of an Islamic theocracy in Bangladesh and were deeply involved in political activism through several political parties. Most members of the ulama were also engaged in carrying on the tabliqh (preaching movement), an effort that focuses on the true sociopolitical ideals of Islam and unequivocally discards all un-Islamic accretions. Tabliqh attracted many college and university graduates, who found the movement emotionally fulfilling and a practical way to deal with Bangladesh's endemic sociopolitical malaise.*
According to the “Worldmark Encyclopedia of Religious Practices”: “Social justice is an important element in Islam. In Bangladesh it is reflected in the platforms of such religious political parties as the Jam'at-i-Islami, which argue that Muslims are obligated to care for the poor and needy. Many international and local nongovernmental organizations (NGOs) pursuing aid to the poor find themselves in conflict with Islamist groups over the meaning of social justice. Islamist groups such as the Jam'at-i-Islami, for example, believe the roles of men and women are different yet complementary. A woman is expected to remain at home and take care of her husband and family. It is the husband's responsibility to provide for the family financially. In contrast, NGOs work to make women self-reliant and financially independent. [Source: “Worldmark Encyclopedia of Religious Practices”, Thomson Gale, 2006]
Shaleesh and Fatwas in Bangladesh
Village councils known a shaleesh (saleesh) act as village courts in many rural areas. Elders, who make up the councils, often traditionally met under large banyan trees to meet out justice. Shaleeshes are often convened to settle petty grievance, disputes over money or property or cases in which one party was been wronged by another and wants financial compensation. Serious crimes are usually not on their agenda.
The New York Times described the convening of a shaleesh to compensate the family of a woman who had been hideously disfigured when acid was thrown in her face. The people representing the victim said they thought $10,000 was a fair payment. Those representing the attacker countered that $1,000 was fair. After an afternoon of haggling the two parties agreed on $3,000. Shaleeshes have passed sentences in which people have been publicly stoned or burned to death, or publicly lashed.
According to a report by Amnesty International, "A 14-year-old girl was sentenced by saleesh [village council] in August 1992 to 100 lashes after her rape by an influential villager. The saleesh acquitted the rapist but took the pregnancy resulting from the rape as evidence of illicit sexual intercourse."
Fatwas — religious edicts, or rulings on a point of Islamic made by a recognized authority — are illegal in Bangladesh, but Islamic clerics sometimes preside over courts that use sharia law and issue fatwas to deal with issues such as extramarital relationships. In villages Islamic law is strong and the issuances of fatwas is common. Courts in Bangladesh have ruled that fatwas do not have the force of law.
In February 2011, four Islamic clerics were arrested after a teenage girl accused of having a relationship with a married man was whipped to death. Associated Press reported: The clerics were accused of ordering Mosammet Hena, 14, to receive 100 lashes in a fatwa, or religious edict, at a village in south-western Shariatpur district, the area's police chief, AKM Shahidur Rahman, said. The area is 35 miles from the capital, Dhaka. Rahman said the girl collapsed after she was lashed in public with a bamboo cane about 70 times. She was taken to a hospital where she died the same day. The police chief said the 40-year-old man with whom Hena was allegedly involved was also sentenced to 100 lashes, but fled. "We are hunting for the man," he said. [Source: Associated Press, February 3, 2011]
Corruption in the Bangladesh Legal System
The Bangladeshi judicial system is inefficient and corrupt. Prosecutors have a reputation for being on the take. People sometimes have to pay them to pursue a case. Political appointments, promotions, and firings based on political or business reasons are routine, and it can be difficult to enforce contracts and resolve disputes. The payment of bribes in exchange for favourable verdicts is common. Prosecutors, who earn as little as $37.50 a month in the 1990s, are especially susceptible to bribery. [Source: Wikipedia]
In 2010, the judiciary of Bangladesh was ranked as the most corrupt institution of the country. One of the biggest problems is that the judiciary is not independent like it is supposed to but rather is under the influence of the executive branch of the government and is said to be infected with partisanship, governmental or political pressure, delayed verdicts,and abuse of power.
In March 2007, University of Chittagong revoked the LLB certificate of the judge Faisal Mahmud Faizee and seventy others for tampering with their mark-sheets. They were required to to immediately return their certificates. In July 2014, three senior judges, AKM Ishtiaque Hussain, Md Mizanur Rahman, Salauddin Mohammad Akram were fired from their jobs for various types of corruptions. In August 2016, Bangladesh Ministry of Law said it had started proceedings to to dismiss four judges — SM Aminul Islam, Ruhul Amin Khandaker, Sirajul Islam and Moinul Haque — for grave corruptions.
Mohammad Mohiuddin wrote in the Bangladesh Journal of Law: The main causes of corruption in Bangladesh may be categorized as below: A. Political causes of corruption: (i) Political instability; (ii) Lack of patriotism; (iii) Inadequacy of existing laws; (iv) Lack of accountability; (v) Centralization of power; (vi) Lack of strong supervising and monitoring system; (vii) Inefficiency of our Anti Corruption Commission; (viii) Corruption in anti corruption department, and (ix) Lack of political will. B. Social causes of corruption: (i) Poverty; Writ Jurisdiction of the Supreme Court of Bangladesh 153 (ii) Unemployment; (iii) Law and order situation; (iv) Fascination for luxurious life; (v) Fragile social status; (vi) Availability of illegal arms, and (vii) Lack of social awareness. C. Economic causes of corruption: (i) Unequal distribution of wealth and income; (ii) Expensive life style; (iii) Financial uncertainty, and (iv) Economic insolvency. D. Other causes: (i) Lack of patriotism; (ii) High ambition, and (iii) Ambiguity of law. [Source: Mohammad Mohiuddin, “Present Situation, Problems and Solutions in the Legal System Related to Corruption Control and Corruption Cases in Bangladesh”, Bangladesh Journal of Law, 2006]
Executions and the Death Penalty in Bangladesh
Bangladesh, along with Japan, South Korea, Bhutan, Indonesia, Malaysia and Pakistan have the death penalty. In ancien times, criminals and rebels were thrown to their death under the feet of elephants. Since 2000, 11 people have been executed in Bangladesh, the most recent one being of Abdul Gafur in November 2020, for murder. According to the World Coalition Against the Death Penalty, Bangladesh carried out six executions in 2017.
Capital punishment in Bangladesh is a legal form of punishment for anyone who is over 16, however in practice it is not applied to people under 18. Crimes that are punishable by death in Bangladesh according to the Penal Code 1860 include waging war against Bangladesh, abetting mutiny, giving false evidence upon which an innocent person suffers death, murder, assisted suicide of a child, attempted murder of a child, and kidnapping. The Code of Criminal Procedure 1898 provides that "he be hanged by the neck until he is dead." For murder cases, the Appellate Division requires trial courts to weigh aggravating and mitigating factors to determine whether the death penalty is warranted. [Source: Wikipedia]
A person can receive the death penalty if they are found guilty of crimes against women and children. The Women and Children Repression Prevention Act 2000 provides that the death penalty can be imposed for murder or attempted murder involving burning, poison, or acid. Causing grievous bodily harm by burning, poison or acid, if the victim's eyesight, hearing, face, breasts or reproductive organs are damaged. A number of offences that don’t result in death are punishable by death when committed by armed forces personnel. These offences include, providing aid to the enemy, cowardice and desertion and cowardly or traitorous use of a surrender flag. of truce or any act calculated to imperil Bangladesh.
Image Sources: Wikimedia Commons
Text Sources: New York Times, Washington Post, Los Angeles Times, Lonely Planet Guides, Library of Congress, Bangladesh Tourism Board, Bangladesh National Portal (www.bangladesh.gov.bd), The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Reuters, Associated Press, AFP, Wikipedia and various books, websites and other publications.
Last updated February 2022