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Table of Contents
Legislation
2
Supreme and Delegated
3-4
The Constitution
4–9
Act of Parliament & Ordinance
10
Order
10
Rule & Regulation
11
Bye-law
Recommendation
11 – 12
12
Page | 1
Legislation
Legislation is the business of Parliament
...
The RBG provides that the Ministry of Law, Justice and Parliamentary Affairs shall
be consulted on all proposals for legislation, and that all laws on subjects allocated to each
ministry shall be a part of its business
...
The Summary shall be self-contained as far as
possible, and shall include as appendices such relevant papers as may be necessary for
proper appreciation of the matter
...
At the drafting stage, detailed
file notes are usually made explaining the need for the law or the amendment and the
purposes to be served by it
...
After
internal review (and very seldom is there public review of draft statutes, or public
consultation prior to drafting, or even informal consultation
...
Once the Cabinet approves the draft, it is placed
before Parliament through the Ministry of Law, together with a brief one or two paragraph
statement of purpose, for a first reading, and then sent to the Parliamentary committee
concerned for further review
...
Once it receives the affirmative vote of Parliament, it is sent
to the President for signature, whereupon it becomes law
...
Those who have the formal
power to create legislation are known as legislators; a judicial branch of government will
have the formal power to interpret legislation (see statutory interpretation); the executive
branch of government can act only within the powers and limits set by the law
...
The Civil Courts Act 1887
delimits the pecuniary jurisdiction44 of subordinate courts, in that Assistant District
Judges (the lowest rung of the civil subordinate judiciary) have a limit of Taka 200,000
...
00, and Joint District Judges
have unlimited pecuniary jurisdiction
...
Prior to becoming a Joint District Judge
some 10 years or so after joining the judicial service, the judicial officer concerned deals
primarily with “civil matters”, i
...
real property and family dispute related matters
...
Therefore, at the time a judge of the subordinate courts begins to hear commercial
matters, he would have had very little opportunity to be exposed to such matters or to have
received training in the related laws
...
Similarly, lawyers appearing
in the subordinate courts do not have much experience in commercial matters
...
Certain company matters as prescribed by the Companies Act, 1994, income tax references
under the Income Tax Ordinance 1984, admiralty suits under the Admiralty Act, 2000 are
among a few commercially oriented matters which may be filed in the High Court Division
of the Supreme Court in its original jurisdiction
...
In these cases, the judges of the Supreme Court are certainly more experienced,
however the benches of the High Court Division with jurisdiction to hear such matters are
of necessity small, and also have large backlogs of cases
...
After
hearing a case, the court pronounces judgment and a decree follows on the judgment
...
The property of a judgment-debtor will be liable to attachment and sale
in execution of a decree, subject to the rules in this regard prescribed by law
...
The
courts may make orders of temporary injunction or other interlocutory orders in a suit
...
Delays are further incurred due to the enormous back-log of cases already there in the
subordinate courts
...
The Constitution
The Constitution of Bangladesh is the supreme law of Bangladesh
...
Passed by the Constituent Assembly of Bangladesh on
November 4, 1972, it came into effect from December 16, 1972, on the first anniversary of
Bangladesh's
victory
over
Pakistan
in
the Liberation
War
...
When adopted in 1972, it was one of the most liberal
constitutions of the time
...
All
laws inconsistent with the provisions of Part III of the Constitution which guarantees
fundamental rights are void
...
To enjoy the protection of the law, and to be treated in accordance with
law is the inalienable right of every citizen, and every other person for the time being
within Bangladesh
...
Bangladesh is a unitary, independent, sovereign, democratic
republic
...
The three
organs of the Republic are the Executive, the Legislature and the Judiciary
...
The Chief Justice of Bangladesh and the
Page | 4
other Judges are independent in the exercise of their judicial functions
...
The High Court Division has original, appellate and other jurisdictions, powers and
functions as are or may be conferred on it by the Constitution or any other law
...
It has extensive powers of judicial review over administrative actions
...
It has superintendence and control over all courts
and tribunals subordinate to it
...
Appointments of person to offices in
the judicial services (including judges of the subordinate courts) and as magistrates
exercising judicial functions are made by the President
...
All persons
employed in the judicial service and all magistrates shall be independent in the exercise of
their judicial functions
...
In the exercise of
all his functions, save that of appointing the Prime Minister and the Chief Justice, the
President acts in accordance with the advice of the Prime Minister
...
The executive power of the Republic is
exercised by the Prime Minister
...
The executive authority of the Republic
extends to the acquisition, sale, transfer, mortgage, and disposal of property, the carrying
on of any trade or business and the making of any contract
...
As of 2011 the Constitution of the People's Republic of Bangladesh has been amended 15
times
...
It amended Article 47 of the Constitution by inserting an additional clause which
allowed prosecution and punishment of any person accused of 'genocide, crimes against
Page | 5
humanity or war crimes and other crimes under international law'
...
Second Amendment: The Constitution (Second Amendment) Act 1973 was passed on 22
September 1973
...
Provision was made through this
amendment for the suspension of certain fundamental rights of citizens during an
emergency
...
This amendment altered Article 2 of the Constitution to give effect to an
agreement between Bangladesh and India for the exchange of certain enclaves, and the
fixing of boundary lines between the two countries
...
Major changes were brought into the Constitution by this amendment:
A presidential form of government was introduced in place of the parliamentary system;
A one-party system was introduced in place of a multiparty system;
The powers of the Jatiya Sangsad were curtailed;
The term of the first Jatiya Sangsad was extended;
The judiciary lost much of its independence; and
The Supreme Court was deprived of its jurisdiction over the protection and enforcement
of fundamental rights
...
Page | 6
Fifth Amendment: The Fifth Amendment Act was passed by the Jatiya Sangsad on 6 April
1979
...
The effect of the amendment was that all amendments or repeals made in
the Constitution from 15 August 1975 to 9 April 1979 (inclusive) by any proclamation or
Proclamation Order of the Martial Law Authorities were deemed to have been validly
made, and could not be called into question before any court or tribunal or other authority
...
)
Sixth Amendment: The Sixth Amendment Act was enacted by the Jatiya Sangsad; it
amended Articles 51 and 66 of the Constitution
...
It
amended Article 96 of the Constitution; it also amended the Fourth Schedule to the
Constitution by inserting a new paragraph 19, which amongst other things provided that
all proclamations, proclamation orders, Chief Martial Law Administrator's Orders, Martial
Law Regulations, Martial Law Orders, Martial Law Instructions, ordinances and other
laws made from 24 March 1982 to 11 November 1986 (inclusive) had been validly made,
and could not be called into question before any court or tribunal or other authority
...
)
Eighth Amendment: The Eighth Amendment Act was passed on 7 June 1988
...
This Amendment:
Declared Islam as the state religion;
Decentralized the judiciary by setting up six permanent benches of the High Court
Division outside Dhaka;
Substituted the spelling 'Bengali' with 'Bangla', and 'Dacca' with 'Dhaka', in Article 5 of
the Constitution;
Amended Article 30 of the Constitution by prohibiting the acceptance of any title,
honors, award, or decoration from any foreign state by any citizen of Bangladesh
without the prior approval of the president
...
Page | 7
Ninth Amendment: The Constitution (Ninth Amendment) Act 1989 was passed in July
1989
...
Tenth Amendment: The Tenth Amendment Act was enacted on 12 June 1990
...
The reservation was to
last for 10 years, with the members holding the reserved seats to be elected by the members
of the Sangsad
...
It
amended the Fourth Schedule to the Constitution by adding a new paragraph 21,
validating the appointment and oath as Vice President of Shahabuddin Ahmed (Chief
Justice of Bangladesh), and the resignation tendered to him on 6 December 1990 by the
then President Hussain M Ershad
...
The Act also confirmed and made possible the return of Vice President
Shahabuddin Ahmed to his previous office as Chief Justice of Bangladesh
...
It amended Articles 48, 55, 56, 57, 58, 59, 60, 70, 72, 109, 119,
124, 141A, and 142 of the Constitution with the following results:
The parliamentary form of government was re-introduced;
The President became the constitutional head of the state;
The Prime Minister became the head of the executive;
The Cabinet headed by the Prime Minister became responsible to the Jatiya Sangsad;
The position of Vice President was abolished;
The office of President now became elected by the members of the Jatiya Sangsad
...
Thirteenth Amendment: The Constitution (Thirteenth Amendment) Act 1996 was passed
on 26 March 1996
...
The non-party caretaker government, comprising the Chief Adviser and not
more than 10 other advisers, would be collectively responsible to the president and would
stand dissolved on the date on which the Prime Minister entered upon his office after the
constitution of the new Sangsad
...
This amendment amended several articles of the Constitution:
A new Article 4A was inserted, for the preservation and display of the portraits of the
President and the Prime Minister;
Clause (3) of Article 65 was amended regarding the seats reserved exclusively for
women members in the Parliament;
Articles 96 (1), 129, and 139 were amended to raise the retirement age of the Judges of
the Supreme Court, the Auditor General, and the Chairman and other members of the
Public Service Commission (PSC); and
Article 148 was amended, to provide for the administration of the oath to newly-elected
members of Parliament by the Chief Election Commissioner
...
An Ordinance must be laid before Parliament at it first meeting following the
promulgation of the Ordinance
...
The rule-making powers may be limited to certain parts of an
enactment, or be general in nature
...
There are usually no well-defined procedures of consultation prior to
making rules, and in particular, regulations
...
Parliament consists of 300
members elected from single territorial constituencies by direct election, and 30 women
members elected by those 300 members
...
When a bill is passed, it is presented to the President for assent
...
No tax may be levied or collected except by or under the
authority of an Act of Parliament
...
An Ordinance must be laid before Parliament at it first meeting
following the promulgation of the Ordinance
...
In the mid-1990s a Law
Reform Commission was formed, but it has not taken on the function of a central clearing
house for legislation
...
In the case of rules or regulations, usually no broad view of conflict or confusion with
other parent or subordinate legislative instrument is taken
...
While in some cases line ministries will take the
assistance of outside experts in drafting or reviewing laws, this is rare
...
In relation to fiscal laws, particularly customs-related laws,
statutory regulatory orders (SROs) are used abundantly to deviate from the parameters set
in many particulars in parent laws, especially in the setting of rates for duties and taxes
...
Bye-law
By the Law Reform Commission Act, 1996, a permanent Law Reform Commission was set
up, with the mandate to, among others, review the relevant laws and propose amendments
or new laws in order to expedite dispute resolution at various levels of civil and criminal
courts; make recommendations for the modernization of the judicial system; and specifically
with a view to attracting local and foreign investment and bearing in mind the
requirements of an open-market economy, recommend amendments or new laws in order to
create a competitive environment in industry and commerce, recommend amendments to
laws relating to copyright, trademarks, patents, arbitration, contract, registration and
other such matters, and review the need for setting up separate commercial and financial
courts
...
The Commission consists of a Chairman and two members, supported by a requisite
number of staff and funded from the national budget
...
As of 2004, the Commission has
Page | 11
only 3 research officers
...
It
appears that the Commission, like many other such institutions in the country, has never
been fully operational zed by access to adequate financial and human resources
...
Although it has the statutory mandate to act as a
clearing house of laws on its own account, it is not taking on that role
...
This is an activity where the
Commission could play a significant part
...
It should be made more effective by providing
for adequate expert input at the conceptual and drafting stage
...
Strengthening of the Law Reform Commission and
enabling it to perform its mandated tasks would go a long way towards addressing these
issues
...
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