Accountability and impunity
11. Judiciary
11.01 Article 35(3) of the Constitution states ‗Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law.‘ Article 27 provides: ‗All citizens are equal before the law and are entitled to equal protection of law.‘143
11.02 According to the US State Department Country Report on Human Rights Practices for 2012, released on 19 April 2013 (USSD 2012 report):
‗The law provides for an independent judiciary, but a longstanding temporary provision of the constitution undermined full judicial independence in practice. According to the provision, the executive branch is in charge of the lower courts, judicial appointments, and compensation for judicial officials.
‗Corruption and a substantial backlog of cases hindered the court system, and extended continuances effectively prevented many defendants from obtaining fair trials due to witness tampering, victim intimidation, and missing evidence.
‗Individuals and organizations may seek administrative and judicial remedies for human rights violations; however, the civil court system was slow and cumbersome, deterring many from filing complaints.‘ 144
142 The Daily Star, Counter terrorism: A Bangladesh perspective, 20 March 2013
http://www.thedailystar.net/beta2/news/counter-terrorism-a-bangladesh-perspective/ Accessed 10 July 2013
143 Constitution of the People‘s Republic of Bangladesh (website of the Prime Minister‘s Office) http://www.pmo.gov.bd/pmolib/constitution/part1.htm Accessed 15 March 2010
144 US State Department, 2012 Country Reports on Human Rights Practices: Bangladesh, 19 April 2013 (Section 1e) http://www.state.gov/j/drl/rls/hrrpt/2012/sca/204395.htm Accessed 23 May 2013
The main text of this COI Report contains the most up to date publicly available information as at 31 July 2013. 53
11.03 The USSD Report stated further that ‗Several reports by human rights groups and corruption watchdog groups indicated growing public dissatisfaction with the perceived politicization of the judiciary.‘145
11.04 Odhikar, a Dhaka-based NGO, stated in their Human Rights Report 2012, dated 12 January 2013 that the backlog of cases had continued rising due to a shortage of judges and courtrooms. According to statistics available to Odhikar, as of January 2012 there were 701,000 civil cases pending in the lower courts, while 374,000 criminal cases were pending in the Sessions Judge‘s Courts and more than 1,000,000 criminal cases were pending in the Judicial Magistracy.146
See also Section24: Juvenile justice
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Organisation
11.05 M. Samiul Islam noted in a paper for the Institute of Business Administration, Dhaka University, ‗The Structure of Judicial System in Bangladesh‘, 18 February 2010:
‗The present legal system of Bangladesh owes its origin mainly to 200-year British rule in Indian Sub-Continent. The Civil Courts Act, 1887 and the Criminal Procedure Code, 1898 as amended up to 2007 is the main legal basis of the present court structure particularly the subordinate judiciary in both civil and criminal side. The judiciary system of Bangladesh is composed of two divisions: The Supreme Court and the Subordinate Court … The highest court in Bangladesh, the Supreme Court ... consists of two divisions, namely the Appellate Divisions and the High Court Division. The functions of the two are distinct and the appointment of judges to each is separate. …
‗The Judges of the High Court Division are [following] at least 10 years of experience as [a] lawyer in High Court Division. The appointment is done by the Chief Justice through consultation with the President. …
‗The appellate division of Bangladesh is comprised of [a] Chief Justice along with other most senior justices.…
‗There are some other courts available according to various laws and ordinances.
These are mainly exercised for special situation[s] and special case[s]. The prominent among them are Labour Court, Labour Appellate Tribunal, Special Power Act, Special Tribunal, Children Act, Administrative Tribunal, Administrative Appellate Tribunal, Village Court, Marine Court, Family Court etc.‘147
11.06 Decisions of the Appellate Court are binding on all other courts, including the High Court. The judges of both divisions of the Supreme Court are appointed by the
145 US State Department, 2012 Country Reports on Human Rights Practices: Bangladesh, 19 April 2013 (Section 4) http://www.state.gov/j/drl/rls/hrrpt/2012/sca/204395.htm Accessed 23 May 2013
146 Odhikar, Annual Report 2012 dated 12 January 2013
http://odhikar.org/?p=5075#./?p=5075&_suid=137699143430306589730761989163 (p95) Accessed 3 June 2013
147 M. Samiul Islam, Institute of Business Administration, Dhaka University, ‗The Structure of Judicial system‘, 18 February 2010 http://www.slashdocs.com/mrpxwv/the-structure-of-judicial-system-in-bangladesh.html Accessed 23 August 2012
President, according to the terms of the Constitution. [Bangladesh Constitution, accessed 15 March 2010]148
11.07 At district level, the Criminal courts are divided into (a) The Court of Session and (b) The Magistracy. These are structured as follows:
The Court of Session
(Hears, on transfer from the Magistracy, criminal cases which carry a term of imprisonment of more than 10 years.)
1. Court of Session Judge
2. Court of Additional Session Judge 3. Court of Assistant Session Judge The Magistracy
The Magistracy of Bangladesh is divided into two ‗classes‘
1.The Judicial Magistracy 2.The Executive Magistracy
The Courts of Judicial Magistrates are:
1.Court of Chief Judicial Magistrate
2.Court of 1st Class Judicial Magistrate (Offences for which imprisonment can be more than 5 years)
3.Court of 2nd Class Judicial Magistrate 4.Court of 3rd Class Judicial Magistrate
(Source: Law Guardian 2010 149) 11.08 Regarding civil procedures for human rights violations, the USSD 2012 report noted:
‗Individuals and organizations may seek administrative and judicial remedies for human rights violations; however, the civil court system was slow and cumbersome, deterring many from filing complaints. The government did not interfere with civil judicial
procedures ... Alternative dispute resolution for civil cases allows citizens to present their cases for mediation. According to government sources, the wider use of mediation in civil cases accelerated the administration of justice, but there was no assessment of its fairness or impartiality.‘150
148 Constitution of the People‘s Republic of Bangladesh (website of the Prime Minister‘s Office) http://www.pmo.gov.bd/pmolib/constitution/part1.htm Accessed 15 March 2010
149 Law Guardian, ‗Judicial System of Bangladesh‘, 2010 http://judiciary.webs.com/apps/contactme/sites/show Accessed 19 July 2013
150 US State Department, Bangladesh Country Report on Human Rights Practices 2012, published 19 April 2013 http://www.state.gov/j/drl/rls/hrrpt/2012/sca/204395.htm Accessed 28 June 2013
The main text of this COI Report contains the most up to date publicly available information as at 31 July 2013. 55
11.09 The Law Commission is a statutory body empowered to recommend enactment,
amendment or the repeal of laws relating to fundamental rights and values of society. It codifies laws and advises reforms of the judicial system. Before finalising draft laws, the Commission consults, solicits and considers submissions from various stakeholders.151 See also section 24: Children: Juvenile justice
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