Power &Functions of Courts in Bangladesh

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Power &Functions of Courts

Introduction:

We know that there are two main branches of our legal practices, they are Civil matters and another is Criminal matters. Civil matters are dealt by Civil Court and Criminal matters are dealt by Criminal Courts.

The both Civil and Criminal Court are divided into to main categories.

1. Higher Judiciary that is Supreme Court of Bangladesh.

2. Sub-ordinate Judiciary.

It is a very vast effort to describe all the power and functions of both the judiciary in a short report. Nevertheless I tried my best to highlight the main features of both civil and criminal court’s power and functions in nut shell.

Hierarchy of Ordinary Courts:

The general hierarchy includes both civil and criminal courts. At the top of the hierarchy of courts is the Supreme Court of Bangladesh. Article 94(1) of the constitution provides that there shall be a Supreme court for Bangladesh (to be known as the Supreme court of Bangladesh) comprising the Appellate Division and the High Court Division.

The Appellate Division

The Appellate Division of the Supreme Court has no original jurisdiction. As like as the High Court Division the source of jurisdiction of the Appellate division is also two- the constitution and ordinary law. But an ordinary law can give the Appellate Division only appellate jurisdiction as stated in Article 103(4) of the Constitution. For example, section 6A of the Administrative Tribunals Act, 1980 provides that appeal may be preferred to the Appellate Division against the decision of the Administrative Appeal Tribunal by way leave petition.

Constitutional Jurisdiction of the Appellate Division:

The constitution itself has conferred on the Appellate Division the following four types of jurisdictions:

A. Appellate Jurisdiction;

B. Jurisdiction as to issue and execution of process;

C. Jurisdiction as to review; and

D. Advisory Jurisdiction

A. Appellate Jurisdiction:

The constitutional appellate jurisdiction of the Appellate Division applies only against the judgment decree, order or sentence of the HCD as stated in Article 103 of the Constitution. This constitutional appellate jurisdiction has two dimensions:

a) Under Article 103 an appeal to the Appellate Division from the judgment, decrees, order or sentence of the High court Division lies as of right in the following three cases:

i) Where the High Court Division certifies that the case involves a substantial question of law as to the interpretation of the Constitution; or

ii) Where the HCD sentences a person to death or imprisonment for life; or

iii) Where the High Court Division punishes a person for its contempt.

It is stated in the last line of article 103(2) of the constitution that parliament may by law add to this list other cases in which appeal as of right may be filed.

b) In all other cases except the abovementioned three cases appeal shall lie from the judgment, decree, order or sentence of the HCD on if the Appellate Division grants leave to appeal.

B. Jurisdiction as to issue and execution of process:

This power of the Appellate Division is also called power to do complete justice. Article 104 of the Constitution provides that the Appellate Division shall have power to issue such orders or directions as may be necessary for doing complete justice in any case or matter pending before it. This power is discretionary and extra-ordinary in nature. The Appellate Division may use this power suo motu or on the application of any party. This power has not been circumscribed by any limiting words and no attempt has been made to define or describe complete justice.’ This is because any such attempt would certainly defeat the very purpose of the conferment of such power.

C. Jurisdiction as to review :

Article 105 of the Constitution empowers the Appellate...
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