Judiciary and the Supreme Court

Judiciary which protects our legal rights and punishes the wrong-doers has a long glorious history and well-founded legacy in Bangladesh. Courts are regarded to be the sacred places wherefrom people expect ultimate justice in the human sense. Superior Courts owe their origin to the constitutions or other fundamental laws, while the subordinate Courts are the products of several Acts, Ordinances or other similar instruments. The Judiciary of Bangladesh consists of a Supreme Court, subordinate courts and tribunals. Supreme Court is the highest court of Bangladesh and superior to all other court. The supreme court of Bangladesh enjoys supreme judicial power over all other courts in Bangladesh. In 1972, the supreme court of Bangladesh is created by the commissariat of Bangladesh i.e.(a) Appellate Division and (b) High Court Division. Usually does not exercise the powerfulness of a court of first instance and appellate division is the highest court of appeal. Admiralty matters and whereas, the high court division is a court of first instance in company.

The Supreme Court is the guardian of the country. It was wide jurisdiction. At the top of the hierarchy of the courts of the supreme court of Bangladesh comprising the Appellate Division and the High Court Division which have both civil and criminal jurisdiction. It is alone the superior court of the country. The functions of the two divisions are distinct and separate and are governed by two separate set of rules as regards practice and procedure. The chief justice of the Supreme Court who is appointed appellate division is constitutionally known as the chief justice of Bangladesh.

Jurisdiction (from the Latin us, iris meaning “oath” and dice re meaning “to speak”) is the practical authority granted to a formally constituted legal body or legal power is the practical authority granted to a formally constituted legal body with and do dictums on legal matters and, by entailment, to administer justice within a defined area of obligation.

APPELLATE DIVISION AND ITS JURISDICTION

­The appellate division hears and determines appeal from judgments, decrees, orders or sentences of high court division. An appeal to the Appellate Division from a judgments, decrees, orders or sentences of high court division shall lie as of right where –

The case involves a substantial question of law as to the interpretation of the constitution.

Where a sentence of death is imposed or where a sentence imprisonment for life is imposed.

Where punishment on any person lips been imposed for contempt of that division. [1]

Appeal shall also lie to the appellate division against all other orders of the high court division grants special leave of appeal. The appellate division also

enjoys a constitutional Advisory jurisdiction. The appellate division can also

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Justice Siddiqur Rahman Mia “Practice and procedure of criminal trial in Judicial Magistrate court and sessions court.” P-25, Para-5(a).

review any judgment pronounced or any order made by it. The Supreme Court is a court of record. A court of record has the authority to fine and imprison for contempt of its authority.

The sources of jurisdiction of appellate division is as follows –

(a) Ordinary Jurisdiction.

(b) Constitutional Jurisdiction.

(a) Ordinary Jurisdiction:

“Ordinary or General Jurisdiction means the statutory jurisdiction which indicates that it has no original jurisdiction. Acc to Article 103 (4) of the constitution only an ordinary law can give appellate jurisdiction to the Appellate Division. For example Section – 6 (A) of the Administrative tribunals Act 1980 provides that an appeal may be preferred to the appellate division against the decision of the Administrative Appeal tribunal by way of leave position. Again section 109 of CPC also provides that appeal shall be made to the Appellate Division against any judgment, decree or final order of the court of final appellate jurisdiction.

(b)Constitutional Jurisdiction:

Constitutional Jurisdiction means the jurisdiction of the Appellate Division which is provided directly by the constitution. The constitution itself has conferred on the Appellate Division the following types of jurisdictions through Article (103 – 106).” [2]

Abdul Halim & NE Siddique “The Legal System of Bangladesh after Separation.” P-112 & 113, Para-3 (a&b). Edition: May’2010.; university publication.

Appellate Jurisdiction

Jurisdiction as to issue and execution of process.

Jurisdiction as to review.

Advisory Jurisdiction.

1. Appellate Jurisdiction:

“The constitutional appellate Jurisdiction of the Appellate Division applies only against the judgment, decree or sentence of the High Court Division as stated in article – 103 of the constitution. Such kind of jurisdictions has two dimensions.

Appeal as of right.

Appeal after granting leave to appeal.

.

2. Jurisdiction as to issue and execution of process:

Article 104 of the constitution provides that the Appellate Division shall have power to issue such orders and direction as may be necessary for doing complete justice in any case or matter pending before it. This power of the Appellate Division is also called power to do complete justice. This is unlimited power of the Appellate Division” [3].

3. Abdul Halim & NE Siddique “The Legal System of Bangladesh after Separation.” P-113, Para-2 (i); Edition: May’2010.; university publication.

3. Jurisdiction as to review:

“Review means consideration of a subject or a thing. The Appellate under article 105 may review its own judgment or order but this power is to be exercised to –

The provisions of an Act of parliament and

The rules made by the Appellate Division. .

4. Advisory Jurisdiction:

Advisory Jurisdiction means the Appellate Division can only advice or suggest on any matter but it has no binding force. Article 106 empowers the president to seek the opinion of the Appellate Division on a question of law (but not on fact) which has arisen or is likely arise and which is of such nature and of such public importance that it is necessary to obtain the opinions. The Appellate Division is not bound to give its opinion. It has discretionary power. It can also in some matter. The opinion given by it in the nature of an advice and is not binding as a judicial pronouncement and is also not binding on the referring authority. In our country till now only one reference has been made to the Appellate Division under article – 106 in 1995. ” [4]

However, the Appellate Division after a hearing of some prominent legal minds gave its opinion. (17 DLR) Appellate Division 1995. P – 111.

4. Abdul Halim & NE Siddique “The Legal System of Bangladesh after Separation.” P-114, Para-2 &3; Edition: May’2010.; university publication

HIGH COURT DIVISION AND ITS JURISDICTION

“The jurisdiction of the High Court is very wide. Its jurisdiction can be divided under the heads, viz. and original, appellate and other jurisdiction. Its jurisdiction extends to both civil and criminal matters besides the constructional and other responsibilities. It hears appeals from orders, decrees and judgments of subordinate courts and tribunals. The High Court Division, in special circumstances has also powers and jurisdiction to hear and dispose of cases as the court of first instance under article 110 of the constitution.” [5]

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

Ordinary jurisdiction.

Constitutional Jurisdiction.

A. Ordinary jurisdiction:

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

a. Original Jurisdiction

b. Appellate jurisdiction

c. Revisional jurisdiction

d. Reference Jurisdiction

5. Justice Siddiqur Rahman Mia “Practice and procedure of criminal trial in Judicial Magistrate court and sessions court.” P-26 Para-2.

a. Original Jurisdiction:

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

b. Appellate jurisdiction:

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

c. Revisional jurisdiction:

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

d. Reference jurisdiction:

Reference means the act of sending a case to the higher authority for information or decision. So reference jurisdiction means the power where by the High Court Division can give opinion and order on a case referred to it by any subordinate court.” [6]

B. Constitutional Jurisdiction:

Constitutional Jurisdiction refers to the jurisdiction of the high court division

6. Abdul Halim & NE Siddique “The Legal System of Bangladesh after Separation.” P-115, Para-Last and P-116 Para-1st , 2nd & 3rd. Edition: May’2010.; university publication

which is conferred by the constitution itself not otherwise. The constitution itself has conferred on the High Court Division the following three types of jurisdiction:

Writ Jurisdiction.

Supervisory Jurisdiction.

Jurisdiction of transferring cases.

Description:

Thought it proper to resolve the question first before proceeding with the case any further and in doing so we also felt it necessary to take assistance from the senior members of the Bar as Amicus Curie. Accordingly, we invited some senior members of the Bar for the purpose, to address the Court on the point of jurisdiction of this Court. Consequently the learned Counsels Mr. Khondker Mahbub Uddin Ahmad, Mr. Rafiq-ul Huq, Mr. Abdul Wadud Bhiyan, Mr. Md. Rowshan Ali and Mr. A. Hasib appeared as amicus curie, besides, Mr. Abdul Matin Khasru learned Counsel appeared in support of the Application before us and addressed the Court on the point raised. Before proceeding with the question of jurisdiction of this Court we choose to quote the provisions of law which is being considered by this Court and the same is an amendment to Jaruri Khamata Bidhimala (Emergency Powers Rules) 2007 namely the said rules made by S.R.O. 30-Ain/2007 published in the Bangladesh Gazette on March 21, 2007 and the relevant part of the said Legislation reads as under.

On 29 3 2007 this application under section 498 of the code of criminal procedure with a prayer for anticipatory bail, was placed before this court in connection with g r case no. 2007 arising out of Dighalia Police Station Case

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No. 8 dated 31. 1. 2007 under Section 25 of the Special Powers Act, 1975, now pending in the Court of Magistrate, 1st Class and Cognizance. Court ‘KA’ Anchal Khulna and in course of hearing of the said application Mr. Golam Mohammad Chowdhury, learned Deputy Attorney General pointed out before this Court the provision of Section 19 Gha of the Jaruri Khamata Bidhimala 2007 as amended by S.R.O. No. 30-Ain/2007 hereinafter referred to as “the said Rules” and submitted that in view of the aforesaid provision of the said Rules this Court is precluded from exercising the power under Section 497 and 498 of the Code of Criminal Procedure.[2] The submission made by the learned deputy Attorney General having touched the very jurisdiction of this Court in exercising its power under the aforesaid provisions of Code of Criminal Procedure.

Evaluation:

Commissariat with consider to crimes under these rules: Until the emergency is in consequence, trial and investigation of those crimes under this rules and punishable not more than 5 years of rigorous imprisonment, will be carried on according to the speedy trial act 2002.

A. Duration of case disposal –

(1) Under commissariat or notwithstanding whatever is stated in any law in force at present, in the period of enforcement of the declaration of the state of emergency, any case filed under the commissariat of this rules 14 and 15 is to be settled within 45 (forty five) days from the date of commencement of trial in any court or tribunal.

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(2) Court, or if the colony of the case appears impossible due to some unavoidable reason, the court., by apprising the reason, can settle the difference of opinion within the next 30 (thirty) days and will inform the supreme court about the time extension in indicting and send a copy thereof to the authorities..

(3) The colony of the case becomes impossible within the period cited in sub clause.

(4) Court, by apprising the reason, can take even 15 (fifteen) days or due to some legitimate reason, the court further to settle the dispute and will inform the Supreme Court in writing about the time extension and send a copy thereof to the government.

B. Adjournment of trial- (1) If the trial of a suit filed under any provision cited in this rules or if the trial of a case filed under any provision cited in this rules 14 and 15 Court in the period of enforcement of the declaration of the state of emergency or begins in any court, t will go on uninterruptedly until settlement, but if the court or it will continue uninterruptedly until colony, but if the court, it can do so for not exceeding 3 (three) days. (2) Court will not adjourn the trial of a case in such a fashion or under the sub clause (1), the court. That the trial of the case stands impossible within the period stipulated under the provision 19(A).

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C. Accountability of courts, tribunals etc. – In the case of non colony of a difference of opinion within the period stipulated under the provision 19(A), Court, the public prosecuting attorney, the law and order enforcing agency, or the accountability of the court 15, The concerned constabulary military officer by applying the or any human related to the trial will be ensured the provision 15 with necessary adaptation.

D. Rules related to bail. – Court during the inquiry or in the period enforcement of the declaration of state of emergency, the accused cannot appeal for bail to any court, Probe and trial under any act mentioned in this proviso or investigation and trial under any act cited in this provision 497 and 498 of Code of Criminal Procedure or in any other Act; By some other co accused like his married woman provided that in the case where the principle accused is accompanied, Sis or offspring under age of 18, bachelor daughter, female parent, female parent in law, The court, having recorded the appropriate reason, can consider bail in reaction to an application on behalf of the co accused or the court.

E. The nature of the order of the courts or tribunals. – In the period of enforcement of the declaration of the state of emergency, it is not permitted to ask for any remedy or to dispute any injunction, except the final verdict, in any higher court or tribunal during probe, case filing or First Information Recording, investigation, pre trial procedures or during the trial under any act mentioned in this provision or provision 14 and 15.

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F. Verification of income tax certificates etc.- during investigation of corruption cases and placing it as evidence.- (1) In the period of enforcement of the declaration of state of emergency, the investigating officer, in investigating into the corruption cases, can inspect, examine and seize income tax certificates and other tax certificates, bank account or other accounts in other financial or other types of associations or institutions for the sake of investigation, if necessary, taking permission from Anti-Corruption Commission, National Board of Revenue, ministry of home, Bangladesh Bank or related other organizations, notwithstanding anything stated in the Income Tax Ordinance, 1984 (Ord. No. XXXVI of 1984) or any other Acts.

G. Witness-value of pictures recorded in camera etc.- Under the state of emergency, during the trial of any case under any act mentioned in this provision or provisions 14 and 15, any moving or still picture of the crime scene or related other photograph, tape, disk, information or any other related element captured by law and order forces, commission executive, or any other person so empowered under this rule is admissible as evidence given that depending upon that evidence only the court or the tribunal can penalize the accused .

H. Witness of experts etc.- Commissariat 14 and 15, if the court necessitates the witness of some forensic expert or during the trial of any case under any act cited in this provision, Other expert who has previously examined the things and submitted a report to the authority or choreographer, horologer,

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am munitions expert, bank account auditor, income revenue enhancement auditor He is incapable of being an witness, or he is missing or the cost, attempt and difficulty or but now it is not feasible to lay him before the court

because either he is exceeds, the court cannot penalize the accused or exceeds the anticipated degree, his signed report is admissible as evidence, provided that depending upon only that evidence the court.

I. In absence of the witness trial:

(1) If the accused is cited as absconding in the report of investigation of any crime filed under any act cited in this rules, during the state of emergency or clause 14 and 15, and if The court reasonably believes that the accused human is deliberately hiding to escape arrest and facing trial or the court, the court or the tribunal will attach one notice in an easily visible place of the court building or the tribunal and one in the last residence or office of the accused specifying the time limit, not exceeding three days, and order the accused to attend the court within that time and if he fails to do so in the stipulated time, the court or the tribunal will continue trial in his absence.

(2) A notice served under the sub-clause (1) is considered to be served individually on the accused.

J. Special provision regarding the application of the Rules:

(1) Whatever may be in other Acts or in this Rules , if the provisions of this Rules if to be applicable to the investigation, trial, appeal, bailment and such other related affairs, an approval is to be taken from the government or other authority.

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(2) The government or other authority, by a written general or special injunction, can designate a subordinate officer the power of approval under sub-clause (1).

(3) In an approval given under sub-clause (1), a statement must mention “Provisions under Emergency Power Rules, 2007 is to be applied”

(4) In giving approval under sub-clause (1) and (2), the approving officer must ascertain the impact of the crime on the people.

(5) Under the provision of clause 14 — (a) Starting from the date of validation of this Rules up to March 20, 2007 and (b) From 21 March, 2007 onward up to the gazette notification of this Rules, under Sections 161, 162, 163, 385, 386, 387, 401, 406, 408, 409, 420, 423, 467, 468, 471, 477 of Penal Code (Act XLV of 1860) and filed under other acts mentioned in clause 14 any case, within ten days of the gazette notification of this Rules, can be admissible retrospectively under the clause (1).

(6) If not approved under sub-clause (5), after the expiry of the period stipulated under the clause, no clauses of this Rules including the clause 19D regarding bailment shall be applicable in any trial under the sub-clause.

From a plain reading of the said rules we find that the expression which has been pointed out before us and we have been called upon to find out the meaning and intention of the framers of the law such expression reads as under: “Any Court or Tribunal” appears in 19 (Gha) in the said Rules as has been quoted above.

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The same experience is available in 19Ka (1), and in 19Kha (1), therefore, let us confine ourselves to the meaning and intention of the expression as available in 19Ka, 19Kha and 19Gha.

In perspective of the absence of an explicit expression the principles enunciated in the case of secretary of state Vs. Mask and Co. Where the judicial commission of the privy council has held that “the exclusion of the jurisdiction of civil courts reported in an I r 1940 (pc) 105 has been attracted (here in this case the High Court Division is not to be readily inferred) But such exclusion must either be explicitly evinced or but such exclusion must either be explicitly expressed for exclusion of jurisdiction of this court is totally absent the explicit expression as required of course, In our own jurisdiction a long line of conclusions we have following the Privy Council decision in the Mask case, Jamil Hoque and 11others Vs. Bangladesh reported in 34 D.L.R. (AD) 125 may be referred to where It has been held by our apex judicature that curtailment of legal power can be done by an appropriate legislation b evince words and it has been held by our apex court

that curtailment of jurisdiction can be done by an appropriate legislation evince words. [5]Therefore, the question of implied exclusion had been excluded by the decision reported in 34 D.L.R. case going a step further to the Privy Council decision as referred to above. The same decision of our apex court has also enunciated the principle that the “Legal power of the superior judicatures, are not to be interpreted to have been took away and if this is so intended it may be done by the appropriate legislative or jurisdiction of the superior courts, are not to be construed to have been taken

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away and if this is so intended it may be done by the appropriate legislative.” We have already noted the submissions made by Mr. Bhuiyan and by the learned Additional Attorney General whereby it is argued that this Court is also covered by the operation of Section 19Gha the amended provision of the said Rules thought not by explicit expression but by necessary implication. In answering such submission it may be pointed out that in that case what happens to the expression namely, “Any Court and Tribunal” as available in 19Ka and 19Kha where no other inference is possible other than the Court or the tribunal where the trial is supposed to take place. How then the same expression can disclose a different meaning in the same legislation in a different provision namely 19Gha thereof. An affirmative answer to that question is hardly conceivable. Therefore the question of necessary implication as argued by Mr. Bhuiyan and supported by the learned Additional Attorney General appears to have no substance particularly in

view of the aforementioned position in the same legislation. Citing examples to explicit expression Mr. Huq has rightly referred to two other similar legislations. One of which is available in Martial Law Order No. 14 of 1982 promulgated on March 27, 1982 precluding all Courts from granting ad-interim injunction or stay and the language relevant for our purpose is as under.

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Conclusion

The Judiciary of Bangladesh consists of a Supreme Court, subordinate courts and tribunals. The Supreme Court of Bangladesh comprises of the Appellate

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