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 Bangladesh portal |
Bangladesh is acommon law country, with its legal system inherited from the British during theircolonial rule overBritish India. The region now known as Bangladesh was referred to asBengal during both the British and Mughal periods, and by other names in earlier times. While religious and political institutions existed from ancient times, theMughals were the first to recognise and formalize them through state mechanisms. The Charter of 1726, granted by KingGeorge I, authorised theEast India Company to establish Mayor's Courts in Madras, Bombay andCalcutta and is recognised as the first codified law for the British India. As a part of the then British India, it was the first codified law for the then Bengal too. Since independence in 1971,statutory law enacted by theParliament of Bangladesh has been the primary form of legislation.Judge-made law continues to be significant in areas such asconstitutional law. Unlike in other common law countries, theSupreme Court of Bangladesh has the power to not only interpret laws made by the parliament, but to also declare them null and void and to enforce fundamental rights of the citizens.[1] TheBangladesh Code includes a compilation of all laws since 1836. The vast majority of Bangladeshi laws are in English. But most laws adopted after 1987 are in Bengali.Family law is intertwined withreligious law. Bangladesh has significantinternational law obligations.
During periods ofmartial law in the 1970s and 1980s, proclamations and ordinances were issued as laws. In 2010, theSupreme Court declared that martial law was illegal, which led to a re-enactment of some laws by parliament. A Right to Information Act has been enacted. Several of Bangladesh's laws are controversial, archaic or in violation of the country's ownconstitution. They include the country's prostitution law,special powers act,blasphemy law,sedition law,internet regulation law,NGO law, media regulation law,military justice and aspects of itsproperty law. Many colonial laws require modernization.
There are nojury trials in Bangladesh. All criminal and civil cases are decided inbench trials.
According to theWorld Justice Project, Bangladesh ranked 103rd out of 113 countries in an index of therule of law in 2016.[2]
Part III of the Constitution of Bangladesh includes the articles offundamental rights.[3]
Judicial precedent is enshrined under Article 111 of the Constitution of Bangladesh.[4]
The Supreme Court of Bangladesh has provided vital judicial precedents in areas like constitutional law, such as inBangladesh Italian Marble Works Ltd. v. Government of Bangladesh, which declared martial law illegal. The judgement ofSecretary, Ministry of Finance v Masdar Hossain asserted theseparation of powers andjudicial independence.
InAruna Sen v. Government of Bangladesh, the Supreme Court set a precedent againstunlawful detention and torture. The court affirmed the principle ofnatural justice in the judgement ofAbdul Latif Mirza v. Government of Bangladesh. The two verdicts were precedents for invalidating most detentions under theSpecial Powers Act, 1974.
The doctrine oflegitimate expectation in Bangladeshi law has developed throughjudicial precedent.
TheBangladesh Code has been published since 1977. Most of its laws, dating between 1836 and 1987, are inEnglish. Following a government circular in 1987, the code has been published primarily inBengali. The language of both the Appellate Division and the High Court Division of the Supreme Court is English. However, mostmagistrates courts anddistrict courts use Bengali. The lack of a uniform language has been a cause of concern, with arguments in favor of both English and Bengali. The country's financial sector depends on English, whereas cultural nationalists prefer Bengali.
The Right to Information Act of 2009, passed by theJatiya Sangsad, was hailed as a major reform. The law allows information requests to most government departments, except the military. Hence, security agreements with foreign countries are not under its purview.
As of 2016, 76,043 requests have been made to theChief Information Commissioner by citizens and organizations.[5]
The main criminal laws arethe Penal Code, 1860, theCode of Criminal Procedure of Bangladesh, theCattle Trespass Act 1871, the Explosive Substances Act 1908, thePrevention of Corruption Act 1947, the Anti-Corruption Act 1957, theSpecial Powers Act 1974, theDowry Prohibition Act 1980,the Narcotics (Control) Act 1990, theWomen andChildren Oppression Act 1995 and theAnti-Terrorism Act 2013.[6][7]
Bangladesh'scompany law has its roots in theJoint Stock Companies Act 1844 enacted by theParliament of the United Kingdom. It was later influenced by theCompanies Act 1857, Companies Act 1913 andCompanies Act 1929. The Securities and Exchange Ordinance, 1969 was the most important piece of legislation incorporating corporate activities during thePakistan period. After the independence of Bangladesh, post partitionIndian company law served as a model for reforms. The Company Law Reforms Committee was set up in 1979 with leading civil servants, chartered accountants and lawyers. The committee's recommendations were not implemented until 1994, when the Companies Act (Bangladesh) 1994 was passed by theJatiyo Sangshad. The Securities and Exchange Commission Act of 1993 created theBangladesh Securities and Exchange Commission to oversee the country's two stock markets.[8]
Contract law in Bangladesh is primarily governed by theContract Act 1872 and theSale of Goods Act 1930.
According to theWorld Bank's 2016ease of doing business index, Bangladesh ranks 189th in enforcing contracts.[9]
Islamic Shari'a law applies toBangladeshi Muslims in personal,family andinheritance matters, whileHindu personal law governs these areas forBangladeshi Hindus. BangladeshiBuddhists also follow Hindu personal law.[10] The Christian Marriage Act, 1872 applies toBangladeshi Christians.[11]
The Customs Act 1969 served as the foundation ofcustoms law until 2023, when it was replaced by the Customs Act, 2023.[12] TheIncome Tax Ordinance werepromulgated in 1984. In 2023, it has been replaced by the Income Tax Act of 2023.[13]Value Added Tax was revised with theValue Added Tax (VAT) and Supplementary Duty (SD) Act 2012.[14]
The Municipal Taxation Act 1881 governs municipal taxes.[15]
The Bangladesh Labour Act 2006 was amended with the Bangladesh Labour (Amendment) Bill, 2013 to improveworker rights, including greater but limited freedom to formtrade unions, and improving occupational health and safety condition in factories. In 2017, the government pledged to remove the ban on trade unions inexport processing zones.[16]
The Constitution guarantees the right toprivate property. TheTransfer of Property Act, 1882 is the principal legislation concerning property transactions. However, some government agencies likeRAJUK restrict property transfers in urban areas throughforeign direct investment. TheVested Property Act allows the government to confiscate property from entities or individuals deemed as enemies of the state.
ThePatent and Designs Act 1911 was the country's oldest legislation concerning patents and designs.[17] It has now been repealed and replaced by two separate laws: the Bangladesh Industrial Designs Act of 2023 and the Patents Act of 2023. The Copyright Act 2023 and the Trademarks Act 2009 are the other main laws.[18]
The general judicial hierarchy in Bangladesh includes both civil and criminal courts in districts, with the Supreme Court of Bangladesh at the top.
In Bangladesh,Judicial review is carried out throughwrit petitions filed with theHigh Court Division under Article 102 of the Constitution.
TheBangladesh International Arbitration Center is dispute resolution organisation for commercialarbitration in the country. It is the country's first center foralternative dispute resolution.
In Bangladesh, a lawyer is called an advocate after enrolling with the Bar. Law students also have the option to pursue legal education abroad–such as training to become barristers in the United Kingdom or other countries–and may return to Bangladesh to enroll as advocates with the Bangladesh Bar Council.Membership in theBangladesh Bar Council is mandatory for anyone wishing to become an advocate, and requires passing a prescribed enrollment examination. Before qualifying as an advocate, a law graduate must complete a minimum of six months of apprenticeship under a senior lawyer at aBar Association.
After becoming an advocate, one must practice for a minimum of two years at a Bar Association before becoming eligible to join theBangladesh Supreme Court Bar Association, which requires passing the prescribed High Court Permission Examination.
TheBangladesh Bar Council and theBangladesh Supreme Court Bar Association are the two principal leading bodies representing lawyers in the country. The Dhaka Bar Association is the largestBar Association inAsia in terms of membership.
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