Department of Public Administration

University of Dhaka
Mid Term on

Critical analysis of the operation and present situation of the judicial system of
Bangladesh from Supreme Court to Subordinate Court.
Course No: Pa-314: Civil Rights, Judicial and Regulatory Administration in Bangladesh

Submitted To
Dr. Musleh Uddin Ahmed
Professor
Department of Public Administration
University of Dhaka

Submitted By
MD. Sakib Hasan
Roll: 042-052
Session: 2017-2018
3rd Year, 5th Semester
Department of Public Administration
University of Dhaka

Date of Submission: 20th January, 2021

1. Introduction: It is well known that one of the most significant institutions of any state is
the judiciary. A country's standard of justice is largely focused on a solid, autonomous
and equal judiciary. The judiciary plays a vital role in the advancement of a country's
growth by ensuring justice. But it is an irony of fate in Bangladesh that there is so much
corruption, nepotism, undue delay and many other serious problems deeply involved in
the judiciary. As a result, the judiciary has refused to provide the general public with
ultimate justice.
2. Structure of Judiciary in Bangladesh: The Constitution of Bangladesh came into effect
on December 16, 1972. In Article 95 (Appointment of Judges), Article 96 (Removal of
Judges) and Article 99 (Prohibition of Further Jobs if Judges) they provide fairly strict
protections for the independence of the judiciary, although the formal separation of
powers is not emphatically expressed. Over the years, through a number of constitutional
changes, the guarantees of judicial independence have been weakened rather than
enhanced and consolidated. Article 94 of the Constitution of Bangladesh provides that
there is a supreme court in Bangladesh consisting of two divisions, the High Court and
the Appellate Division. The Supreme Court shall be composed of the Chief Justice, who
shall be known as the Chief Justice of Bangladesh, and of a number of other judges which
may be deemed appropriate by the President to appoint to each division. It is also
mentioned in this section that, in the exercise of their judicial role, judges shall be
autonomous. Magistrates are controlled by the Ministry of Establishment and by the
government, not by the judicial branch. During their jobs with the government, magistrate
judges are usually moved to their magisterial posts for 3-10 years, and reverted back to
their old administrative roles. The diagram of present judiciary’s hierarchical structure
indicates that at the top of the hierarchy is the Supreme Court of Bangladesh. Supreme
Court has two divisions – HCD and AD. And there is a network of subordinate courts and
tribunals under the HCD.
3. Supreme Court of Bangladesh: The Supreme Court is Bangladesh's highest court.
Article 94(1) of the Constitution provides that the Bangladesh Supreme Court (known as
the Bangladesh Supreme Court) shall be composed of two divisions, the AD and the
HCD. The Supreme Court shall be composed of the Chief Justice, who shall be known as
the Chief Justice of Bangladesh, and of a number of other judges which may be deemed
necessary by the President to appoint to each division (Article 94(2) of COB). Only in the
division shall the Chief Justice and the Judges assigned to the AD sit, and only in the
HCD shall the other Judges sit (Article 94(3) COB The HCD has, by the constitution or
any other statute, "original, appeal and other jurisdictions and powers as conferred upon
it" (Article 101 of COB). It has a clear initial jurisdiction, too. It is allowed, within that
 jurisdiction, to enforce the constitutional rights of people and to issue certain orders and
instructions in the form of prohibition, mandamus, certiorari, habeas corpus and
quowarranto decisions (Article 102 of COB). Furthermore, under different statutes, the
HCD exercises special and statutory original, appeal, revisional, admiralty and
miscellaneous jurisdictions.
4. Subordinate courts: There is a number of subordinate courts and tribunals under the
HCD of the Supreme Court that have civil, criminal or special jurisdiction. The
overwhelming proportion of the population is directly related to the litigation of the
subordinate judiciary in the courts. The basis and cornerstone of the judiciary and
therefore the creatures of laws are this lower judiciary. In Bangladesh, subordinate courts
can be categorized into two broad categories, namely civil and criminal courts.
4.1. Ordinary courts of civil jurisdiction: The civil court system is more popularly
known as the subordinate judiciary. The civil courts are created under the Civil
Courts Act of 1887. The act provides for five tiers of civil courts in a district, which
are:
i. Court of the District Judge: At the district level, the Court of the District Judge
is the main court. It is essentially an appeal court with very limited initial
jurisdiction and deals only with probate and letters of administration cases. A
District Judge considers and decides such appeals against the decisions, decrees or
orders of Joint District Judges in the appeal jurisdiction. The pecuniary authority
of the District Judge is unrestricted and he has the right, under Sections 8,11,22,
23, etc. of the Civil Court Act 1887, to delegate his role or pass appeal under his
administrative control to the Additional District Judge or any other civil court.
Moreover, District Judge is authorized to hear and determine appeals against all
judgments or orders of Senior Assistant Judges.
ii. Court of Additional District Judge: The Additional District Judges' judicial
authority is similar to that of the District Judges, except that they are unable to
accept appeals from any lower courts. An Additional District Judge can, as
appointed by a District Judge, discharge all of the functions of a district judge.
The Additional District Judge holds the same authority as the District Judge when
administering those duties.
iii. Court of Joint District Judge: Both initial and appellate jurisdiction was held by
the Court of Joint District Judge. All cases exceeding the pecuniary authority of a
senior assistant judge shall be brought before the Court of Justice of the Joint
 District Judge. The jurisdiction of the Court of Justice of the Joint District Judge
shall, without any pecuniary restriction, apply to all original suits. This court is
qualified to try those cases whose worth exceeds Taka 4 Lac. In addition, where
such appeals are transferred to them by district judges pursuant to Section 21(4) of
the Civil Court Act 1887, the Joint District Judge may hear and decide appeals
against judgments, decrees or orders of senior assistant judges.
iv. Court of Senior Assistant Judge: The original jurisdiction of the Court of Senior
Assistant Judge is a claim the value of which does not exceed taka 4 lac, and the
Court of the District Judge has an appeal from this court. The District Judge may,
however, withdraw from the court below all proceedings pursuant to Section 23 of
the Civil Court Act and may either order them or move them to the Assistant
Judge's Court or to any other court under its administrative jurisdiction. This court
is also entitled under Section 25 of the Civil Courts Act to act on the Small Causes
Court.
v. Court of Assistant Judge: The base of the hierarchy of the subordinate civil
judiciary is the Court of Assistant Judges. Unless prohibited by the pecuniary
authority of the Court of Assistant Judge, all civil servants are brought before the
Court of Assistant Judge to a maximum of TK 200 000. This court's appeal is to
the Court of District Judge. The District Judge may, however, withdraw from the
court below all proceedings pursuant to Section 23 of the Civil Court Act and may
either order them or move them to the Assistant Judge's Court or to any other
court under its administrative jurisdiction.
4.2. Ordinary courts of criminal jurisdiction: The legal basis of the ordinary
criminal courts is the Code of Criminal Procedure 1898. It can be divided into
two categories of courts like as – Courts of Session and Courts of Magistrate.
i. Courts of Session: For the purposes of the administration of criminal justice
in the territory of Bangladesh, districts, each comprising a Court of Sessions,
have been divided into such sessions. There are three levels of judges in the
system of the Courts of Session, namely, Sessions Judge, Judge of Additional
Sessions, and Judge of Joint Sessions. The Judges of the Courts of Sessions
prosecute serious criminal offences. The Government is obliged, according to
the rules of Section 9 of the CrPC, to appoint a judge to each Court of Session.
The Court of Session for a metropolitan area is known as the Metropolitan
Court of Session, and these offices are appointed in practice by civil
 jurisdiction judges, district judges, special district judges and joint district
judges. Unlike judges of session courts in counties, judges assigned to such
courts do not hear or prosecute any civil matters. These are a form of criminal
court that is reasonably easy to monitor.
ii. Court of Magistrates: Under Subsection 6(2) of the CrPC provides that there
will be two types of magistrate court: Judicial and Executive Magistrates.
5. Current Situation of Courts: Bangladesh's Supreme Court has a legislative mandate
and is the guardian of Bangladesh's Constitution. Many notable rulings have been made
by the Supreme Court on the avoidance of constitutional transgressions, as well as on the
defense of fundamental rights. However, the court must also regard itself as an entity that
needs to control its finances, staff and operations in order to operate effectively. Current
issues are found in this regard:
i. The Independence and Autonomy of the Judiciary: There appears to be an
inconsistent application of the concept of judicial independence. The subordinate
courts are effectively reporting to two institutions instead of one, which leads to
serious operational problems for the courts because information takes longer to be
relayed and processed between two institutions. For example, judges of the lower
courts face considerable difficulties in matters requiring approval, which
effectively involves getting initial permission for leaves and other related matters
from the Supreme Court followed by a Government Order to be processed from
the Ministry of Law, Justice and Parliamentary Affairs. There is no office of
Independent Attorney Services in the justice sector nor effective dialogue between
the Bench and the Bar.
ii. No Centralized Registry Function: Advocates and litigants must deal directly
with the respective sherestadar for each judge, depending on the territorial or
pecuniary jurisdiction of that judge. This encourages 'forum shopping'.
iii. Lack of Customer/Client Service for Court Users: The current environment of
the district courts does not contribute to effective, efficient 'customer' or 'client'
service for the court users.
iv. Delay in the disposal of cases: Delay in the disposal of cases is another
important issue of the judiciary in Bangladesh. According to the report of the
Ministry of the Law, Justice and Parliamentary Affairs, there are more than
968,000 pending cases in Bangladesh.
 v. Corruption: Corruption is a great problem in Bangladesh and the judiciary is not
free from it. It is generally believed that the judiciary is extensively involved in
corruption. Transparency International in its Global Corruption Report 2007
disclosed that Bangladesh failed to ensure full independence of the judiciary and
the politicization of the judiciary is one of the major reasons behind judicial
corruption. According to this report, “Two thirds of the people who used a court in
2004 paid bribes, with the typical bribe amounting to 25 percent of average annual
income.”
vi. The politics of prosecutors: In Bangladesh, prosecutors are also thrown out
during a government’s tenure if they displease the whims of a local member of
parliament, a minister or some other political extreme. Their appointment and job
security are not determined by their ability or professionalism but by the extent to
which they have served the pecuniary and political benefit of the appointing party,
its leaders and workers.
6. Recommendations:
i. Set the Strategic Mission and Goals for the Court: The first task that should be
undertaken by any court interested in improving its work processes and case
management systems is to discuss, draft and adopt a mission and a vision statement as
well as its objectives in a strategic plan.
ii. Set up Technical Committees:
 Conduct a comprehensive workflow analysis.
 Prepare a detailed flowchart of the workflow as it currently exists.
 Work closely with line staff to identify steps or procedures that are duplicative,
redundant and unnecessary, or that do not add value to the respective work
processes.
 Suggest, propose or experiment with reengineered steps and procedures that
simplify, modernize or render more effective the current work processes.
iii. Institutional Memory and Decision- Making Power: The Supreme Court should
ensure that all the senior-most judges are included or apprised of the proposed
reforms. Similarly, in the district courts, arrangements should be made so that reform
efforts are not designed around an individual judge or judicial officer, but information
is retained within the institution.
 iv. Manage Expectations: The success of substantive judicial reform will be determined
by how well the Judiciary manages the following factors:
 Leadership
 Commitment
 Communication
 The learning environment.
v. Measure Delays: Statistics are an important part of the business process mapping
exercise because they help measure where delays are actually occurring. They also
provide the evidence base for initiating review of these processes where delays are
occurring.
vi. Promote Transparency and Accountability, and Incorporate Anti-corruption
Measures:
 Introduce barcode technology to prevent unauthorized movement or
disappearance of files.
 Introduce pilot schemes such as the Register of Actions card.
 Update and streamline records management.
 Randomly assign cases to judges to ensure equitable workload and prevent forum
shopping by lawyers.
 Develop and implement strong ethical guidelines for the Judiciary, Bar and court
staff.
 The Bar Council may be encouraged to hold disciplinary actions for members of
the Bar reported to be participating in or soliciting bribes, speed money, etc.
 Initiate dialogue with the court staff association and encourage its formal
registration.
 Maintain a 'zero tolerance' policy for reported cases of unethical behaviour.
 Establish a reporting mechanism whereby judges, court staff and lawyers may be
reported for unethical behavior.
7. Conclusion: The discussion made above ensures that there has been a regular
administration of the judiciary from the ancient times. It can be seen that several attempts
had been made from the very early period to ensure administration of justice; but is also
worth noting that the issue of independence of judges and their accountability was not
stable. There has always been some kind of interruption from the executive organ to
control the judiciary from the very early stage. The contemporary Bangladesh has also
faced much fusion of powers as well, and the country has tried to resolve such issues by
making sure that the judiciary is independent, not only in theory, but also in practice.