Monday, 4 February 2013

Criminal Justice System of Bangladesh


                           The judicial system of Bangladesh
                              
The judicial system, modeled after the British system, is similar to that of neighboring countries. Besides 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.

The 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.

The judicial system consists of a Low Court and a Supreme Court, both of which hear civil and criminal cases. The Low Court consists of administrative courts (magistrate courts) and session judges. The Supreme Court also has two divisions, a High Court which hears original cases and reviews decisions of the Low Court, and an Appellate Court which hears appeals from the High Court. The upper level courts have exercised independent judgment, recently ruling against the government on a number of occasions in criminal, civil and even political trials. The trials are public. There is a right to counsel and right to appeal. There is also a system of bail. An overwhelming backlog of cases remains the major problem of the court system.

The government, with the help of the World Bank, has undertaken 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.

 
Historical Background of Criminal Justice System Of Bangladesh
                                       
The present legal and judicial system of Bangladesh owes its origin mainly to two hundred years British rule in the Indian Sub-Continent although some elements of it are remnants of Pre-British period tracing back to Hindu and Muslim administration. It passed through various stages and has been gradually developed as a continuous historical process. The process of evolution has been partly indigenous and partly foreign and the legal system of the present day emanates from a mixed system which has structure, legal principles and concepts modeled on both Indo-Mughal and English law. The Indian sub-continent has a known history of over five hundred years with Hindu and Muslim periods which proceeded the British period, and each of these early periods had a distinctive legal system of its own.
       The Hindu period extends for nearly 1500 years before and after the beginning of the Christian era. The ancient India was divided into several independent states and the king was the Supreme authority of each state. So far as the administration of justice was concerned, the king was considered to be the fountain of justice and was entrusted with the Supreme authority of administration of justice in his kingdom.
       The Muslim period starts with the invasion of the Muslim rulers in the Indian sub-continent in 1100 A.D. The Hindu Kingdoms began to disintegrate gradually with the invasion of Muslim rulers at the end of eleventh and at the beginning of twelfth century. When the Muslims conquered all the states, they brought with them the theory based o n the Holy Quran, their religious book. According to the Holy Quran, sovereignty lies in the hand of Almighty Allah and the king is His humble servant to carry out His will on the earth. The ruler was Almighty's chosen agent and trustee.
       The modernization of ancient Indian legal and judicial system took place in the hand of the British people who came here as being trading company under a series of Royal Charters. East India Company gradually established control and possession over Bombay, Madras and Calcutta which were later on known as Presidency Towns. Ultimately the Company participated in administration of justice in co-operation with the local authorities. The Charter of 1726 issued by King George-I, by way of granting Letters Patent to the Company, was the first gateway to introduce English legal and judicial system in India. Later on, Charter of 1753 was issued by King George-II with a view to remove the defects of the Charter of 1726. To improve the system, the secret committee of House of Commons intervened, and passed the Regulation Act, 1773 under which the King issued a separate Charter of 1774 establishing the Supreme Court of judicature at Calcutta. Subsequently, Supreme Courts were established in Madras in 1801 and in Bombay in 1824.
       In 1853, the first Law Commission was established in India and an all India legislature was created whose laws were to be binding on all Courts. East India Company was dissolved and the Government of India was taken over by the British Crown in 1858, following the event of mutiny in 1857. The Civil Procedure Code, Criminal Procedure Code, Penal Code, Evidence Act, etc. were enacted and with this common legal fabric, the British Parliament in 1861 enacted Indian High Courts Act which provided for the establishment of High Courts in three Presidency Towns (Calcutta, Bombay & Madras) replacing the Supreme Court. After the establishment of High Courts a regular hierarchy of Civil and Criminal Courts were established by Civil Courts Act, 1887 and Criminal Procedure Code, 1898 respectively. The present system of Civil and Criminal Court, in Indian sub-Continent has their legal basis by virtue of these Civil Courts Act, 1887 and Criminal Procedure Code, 1898 respectively. The British Parliament declared India & Pakistan as independent dominions on 15 August, 1947 by the Indian Independence Act, 1947. This Act also provide that until the new Constitutions were framed for independent India & Pakistan, the Government of these two countries were to run by the Government of India Act, 1935. Judicial structure mostly remained the same as it was before 1947.
       The Government of India Act.1935 changed the structure of the Government from unitary to that of federal type. Accordingly, in both India and Pakistan Federal Court was retained to function until new constitutions were framed. Pakistan constituent Assembly passed the privy council (Abolition of Jurisdiction) Act, 1950 which abolished the system of appeal to the Privy Council from the Federal Court of Pakistan. The Federal Court appeared as the highest Court in Pakistan till 1956, when the High courts in the provinces and the Supreme Court of Pakistan in the centre were established under the new Constitution. In Pakistan, the constitution of 1956 was abrogated in 1958 and another one was introduced in 1962, but the whole judicial structure remained all the same. After liberation in 1971, Bangladesh adopted its Constitution in 1972, which provides the structure and functioning of the Supreme Court comprising with the High Court Division and the Appellate Division. Needless to say that in Bangladesh the sub-ordinate judiciary both in Civil and Criminal side originated from Civil Court Act, 1887 and Criminal Procedure Code, 1898. Apart from this, in Bangladesh there are some other special laws providing for the basis of some special courts, such as labor court, Juvenile Court, Administrative tribunal etc.



Function, Power & Procedure of the Court:
The judicial system of Bangladesh comprises with
1. The Supreme Court,
2. The subordinate courts and the tribunal courts.


                                                            The Supreme Court of Bangladesh
                                                 

The Supreme Court of Bangladesh  is classified in to two divisions, the High Court and the Appellate Court. The Appellate Court decides over appeals against the decisions taken by the High Court. The Appellate Court has supreme powers of drafting new amendments or additions in the law.
The High Court is given independent powers and jurisdiction by the Constitution of Bangladesh. Thus the High Court, though being the subdivision of Supreme Court, works completely in its own style and follows different laws than the Supreme Court. The High Court hears original legal matters as well as appeals against the subordinate court judgments.
The High Court has been assigned authority to control and administer all the lower Courts and tribunals.

The Subordinate Courts and Tribunals
The Subordinate Courts are the basic courts of the judicial system in Bangladesh. These subordinate courts can be classified broadly as 1) Criminal Courts and 2) Civil Courts.
These are further subdivided as:
1) Criminal Courts:

a) Sessions Courts
b) Metropolitan Session Courts
c) Special Criminal Courts
d) Metropolitan Magistrate Courts
e) Magistrate Courts
2) Civil Courts:

a) Assistant Judge Court
b) Senior assistant Judge Court
c) Joint District Judge Court
d) Additional District Judge Court
e) District Judge Court
f) Family Court
g) Money loan Court
h) Bankruptcy Court
Criminal courts deal with serious criminal offenses, some of which may even lead to a death sentence. The Session Courts have three layers of Judges: namely, Sessions Judges, Additional Session Judges, and Joint Session Judges.  The Session Judge and the Additional Session Judge have more powers than the Joint Session Judge. The Session Court Judges also hear civil matters.
The Metropolitan Session Court Judges only deliver judgments over criminal matters. Such courts also have a system for providing justice in lesser time as compared to the regular system, which may take ten or more years for resolving such criminal matters. The Metropolitan Session Courts of Bangladesh are located at Dhaka and Chittagong.
  The different types of tribunal courts in Bangladesh include but are not limited to: income tax, administrative, election, and public safety tribunals.

The government operates courts in the regions, districts, and subdistricts that make up the local administrative system (see Local Administration , this ch.). 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.
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.

Power of the Village Court
i) The Village Court to award compensation in respect of an offence specified in Part 1 and II of the
Schedule and may order the accused to pay compensation of an amount not exceeding twenty five
thousand taka. (Sec. 7).
ii) The Village Court may penalize up to Taka 500 for contempt of the Court. (Sec.11).
iii) Permit the party to be represented through duly authorized agent (Sec.15).
iv) Matter relating to public interest and justice can be referred to the Courts of Magistrate without
adjudicating by itself. (Sec.16)
v) Can recover the compensation by applying the Public Demands Recovery Act, 1913 [Sec.9 (3)].
vi) Can reject application on reasonable ground. (Sec.4)
vii) Can recover fine and deposit in the account of the Union Parishad (Sec.12)
viii) The Village Court has to submit it’s half-yearly report on adjudicating cases to the Upazila Wirbahi
Officer (UNO) and record it in Form 10 of the register.

Mobile Court:


Types of Criminal:
1. Adult Criminal
2. Juvenile Delinquency


Procedures of Case:

Police Case:
The Bangladesh Police (Bengali: বাংলাদেশ পুলিশ ) is the main law enforcement agency of Bangladesh. It is administered under the Ministry of Home Affairs of theGovernment of Bangladesh. It plays a crucial role in maintaining peace and enforcement of law and order within the whole of Bangladesh. Though the police are primarily concerned with the maintenance of law and order and security of persons and property of individuals, it also plays a vital role in the criminal justice system.




Petition Case:



















Prison System:                                                                         
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.


Recommendations:

Criminal justice reform for a better Bangladesh
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 THE POLICE are alleged of bribe, the army is incorporate with mass corruption, the BDR mutinied and drive brutal killings, the judges are influenced by the political pressure and favor or diverted by some means are the common scenario of Bangladesh.

While the innocent are languishing inside jail for the lack of legal aid, the criminals are enjoying freedom by influencing the criminal justice system. The criminal justice system today is a big business and affects large numbers of people. The criminal justice system is linked with key sociopolitical objectives, such as the maintenance of law and order and preservation of the peace, the security of the individual and the protection of property; and, increasingly, the protection of human rights and individual freedoms.

The Bangladesh penal code is drafted in accordance with colonial British law, which contains many conflicting and competing policies when applied to present-day situations. The paradox of that law is that it insists on the application of force and the violent deprivation of liberty, consistent with the British colonial perspective, in the name of limiting force and fraud and defending liberty.

The time for the reformation of the criminal justice system of Bangladesh has come. The question is how to achieve a proper balance between the provision of the criminal law and the preservation of liberty and freedom of the individual.

The police are an essential component of the criminal justice system in Bangladesh. The police play a very important and vital role for the implementation of fair trials. The Bangladeshi government is trying to fix the agenda for democratic policing by transforming the police force into a police service with the help of UNDP.

The prison system has become a vital component of suppression and brutality, even though prison should be a place for rehabilitation and correction. Simply put, justice is detained behind the walls of these Bangladeshi prisons. Prison reform is a necessary objective to ensure people's rights and "humanize" Bangladesh. Prisoners’ rights have become an important item on the agenda for prison reforms. Lawmakers should introduce a bill to humanize the prison system in Bangladesh, where the main philosophy of prison systems is based on colonial law.

Being so close to the delivery of justice, the criminal justice system of Bangladesh needs wide reforms that demand a revival in the criminal justice system. All past and present governments kept busy fulfilling their own agenda. George Gillespie said, “Reformation ends not in contemplation, but in action.” The question remains, who will end the empty talk for reform of the criminal justice system and ensure the people’s access to justice?

Recommendation: The prosecution service should
adopt file ownership as the default administrative
process for the handling of criminal matters.




Recommendation: The Criminal Justice and
Public Safety Council support initiatives to
􀁴􀀁 Create timelines for early resolutions;
􀁴􀀁 Impplement the Provincial Court Process and
Scheduling Project;
􀁴􀀁 Substantially reduce the normal time to trial; and
􀁴􀀁 Reduce the current case backlog to bring all
pending cases into compliance with the new
standards being developed by the Provincial
Court

Recommendation: Broader use of judicial
justices should be considered by the Provincial
Court for the hearing of all preliminary inquiries
and expansion of their use for bail applications.

Recommendation: The Supreme Court
Criminal Committee should be resourced to
retain project management expertise to assist
in developing best practices in pre-trial and trial
management

Recommendations: In consultation with the
Provincial Court, the Provincial Court Act should
be amended to:
􀁴􀀁 Clarify and affirm the role, powers and duties
of the Chief Judge and that the term of office
to seven years;
􀁴􀀁 Recognize and clarify the role of the Executive
Committee and the Management Committee
of the Provincial Court;
􀁴􀀁 Provide for a specific judicial complement,
subject to review every three to five years;
􀁴􀀁 Permit the Attorney General to refer questions
concerning judicial administration to the
Court; and
􀁴􀀁 Provide for a professional judicial administration
officer with a defined role and responsibility.
Recommendation: The Court establish a
voluntary Advisory Committee on Judicial
Administration, including people with expertise
in private and public management.


Recommendation: The charge approval function
and responsibility should remain with the
prosecution service.

Recommendation: In order to improve
transparency of Provincial Court processes,
consideration should be given to
􀁴􀀁 Providing a Web-based service to remind
subscribers of developments and resolutions
in particular cases; and
􀁴􀀁 Providing online and courthouse user surveys
that focus on service standards and ideas for
improvement.


Recommendation:
Improved scheduling of
witnesses via modern information technology
should be considered.


Recommendation:
An administration of justice
Offence cross-sectoral working group should be
established (under the direction of the Criminal
Justice and Public Safety Council) to
-Better understand the trends and outcomes
of administration of justice offences;
- Identify best practices for determining the
terms of release into the community pending
trial, and the best practices in enforcement
and supervision of those conditions, with the
goal of achieving the best outcomes for the
victim, the community and the offender; and
- Develop a pilot to test the strategies.



Recommendation:
 The Criminal Justice and
Public Safety Plan for the Province should
include a performance goal for increased use of
restorative justice programs.

Recommendation:
 Expanded funding for
restorative justice programs should be made
available and innovative methods of funding,
should be assessed, such as funding referrals, in
cases where the offender would otherwise be
subject to a significant criminal penalty


No recommendation is made as to the general
level of funding for the criminal justice system.

Recommendation: Within the scope of available
funding, priority should be considered for reducing
the backload of cases, enhancing the managerial
capacity of the courts, and enabling the full
realization of the early case-resolution process.

Recommendation: To enable the aggressive
resolution of the backlog of cases, an additional five
judges should be appointed to the Provincial Court













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