Judiciary
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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 preceeded 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.
