Civil Laws at Bangladesh
Bangladesh operates a common law legal system, a legacy of British colonial rule over the Indian subcontinent. However, it's a hybrid system that incorporates elements of statutory law, judge-made law (precedent), and personal laws based on religion.
1. Sources of Civil Law in Bangladesh:
The Constitution of Bangladesh (1972, with amendments): This is the supreme law of the land. It defines fundamental rights and freedoms, establishes the framework for the judiciary, and dictates the general principles by which all other laws must conform. Article 26 notably states that "all existing law inconsistent with the provisions of this Part [Fundamental Rights] shall, to the extent of such inconsistency, become void."
Acts of Parliament (Statute Law): The Jatiya Sangsad (National Parliament) enacts laws that are the primary form of legislation. Many of these are codifications or adaptations of laws inherited from the British period, such as:
The Code of Civil Procedure, 1908: This is the cornerstone of civil litigation in Bangladesh, setting out the procedures for civil courts.
The Specific Relief Act, 1877: Deals with specific remedies for civil wrongs, like specific performance of contracts or injunctions.
The Contract Act, 1872: Governs the principles of contracts.
The Transfer of Property Act, 1882: Deals with various aspects of property transfer.
The Evidence Act, 1872: Governs the admissibility and weight of evidence in both civil and criminal cases.
The Limitation Act, 1908: Prescribes time limits for filing lawsuits and applications.
The Companies Act, 1994: Based on earlier British and Indian company laws, governs corporate activities.
Other specialized laws: Such as the Money Loan Courts Act, Insolvency Act, etc.
The Bangladesh Code is a compilation of all laws since 1836. Many laws enacted before 1987 are still in English.
Common Law and Principles of Equity: As a common law country, judicial precedents (decisions of the Supreme Court, particularly the Appellate Division) play a significant role in interpreting statutes and developing law where statutes are silent. The doctrines of equity are also applied to ensure fairness and prevent injustice.
Personal Laws (Religious Laws): This is a unique and significant feature of Bangladesh's civil law. Specific religious laws govern personal matters for different communities:
Islamic (Sharia) Law: Applies to Muslims in matters of marriage, divorce, maintenance, guardianship, and inheritance.
Hindu Personal Law: Governs similar personal matters for Hindus (and generally also for Buddhists).
Christian Marriage Act, 1872: Applies to Christians for marriage and related issues.
These personal laws often differ significantly from the general statutory civil law and from each other.
Customs and Usages: While not as prominent as statutory or personal laws, long-standing customs and usages can have legal force if they are certain, reasonable, and not contrary to statute law or public policy. Their role is relatively minor compared to personal laws.
International Treaties and Conventions: Treaties ratified by Bangladesh can influence the interpretation and development of domestic civil law.
2. Key Areas of Civil Law in Bangladesh:
Contract Law: Deals with the formation, enforceability, and remedies for breach of agreements between parties.
Tort Law: Addresses civil wrongs that cause harm to others, leading to claims for damages (e.g., negligence, defamation, nuisance).
Property Law: Covers ownership, transfer, and various rights related to immovable (land, buildings) and movable property. Land laws can be particularly complex due to historical land reforms and different types of tenure.
Family Law: As mentioned, this is largely governed by personal laws based on religion. This includes:
Marriage and Divorce
Maintenance and Alimony
Custody and Guardianship of Children
Adoption (primarily under Hindu law, limited for other communities)
Inheritance and Succession: Also determined by personal laws.
Company Law: Governs the establishment, operation, and winding up of companies and other business entities.
Employment Law: Regulates the relationship between employers and employees, including wages, working conditions, and dispute resolution.
Consumer Protection Law: Aims to protect consumers from unfair practices.
Banking and Financial Law: Covers regulations for banks, financial institutions, and loan recovery.
3. The Civil Justice System:
Bangladesh has a hierarchical judicial system for civil cases:
Subordinate Civil Courts: These are the courts of first instance and are structured in a hierarchy based on the pecuniary (monetary) jurisdiction of the case:
Assistant Judge Court: Handles cases with lower monetary value.
Senior Assistant Judge Court: Handles cases with higher monetary value than Assistant Judges.
Joint District Judge Court: Handles cases with unlimited pecuniary jurisdiction (above a certain threshold).
Additional District Judge Court: Exercises powers similar to the District Judge, often handling cases referred by the District Judge.
District Judge Court: The principal civil court of original jurisdiction at the district level. It also hears appeals from lower civil courts.
Specialized Courts and Tribunals: Alongside the general civil courts, specific tribunals handle certain types of civil disputes:
Money Loan Courts (Artha Rin Adalat): Deal with loan recovery cases by financial institutions.
Labour Courts: Adjudicate employment disputes.
Administrative Tribunals: Deal with service-related disputes of public servants.
Family Courts: Often integrated into the civil court structure but specialized in family matters.
Land Survey Tribunals: Deal with land-related disputes arising from surveys.
Supreme Court of Bangladesh: The apex court, consisting of two divisions:
High Court Division: Primarily an appellate court for decisions from subordinate courts, but also has original jurisdiction in certain matters (e.g., company matters, admiralty, and crucial writ jurisdiction under Article 102 of the Constitution to enforce fundamental rights and review administrative actions).
Appellate Division: The final court of appeal for all civil (and criminal) matters, hearing appeals from the High Court Division. It also has the power of judicial review to declare laws unconstitutional.
Key Features and Challenges:
Adversarial System: Bangladesh adheres to the adversarial system, where parties present their arguments and evidence, and the court remains impartial.
Standard of Proof: In civil cases, the standard of proof is generally the "balance of probabilities" (it is more likely than not that the claim is true).
Case Backlog: A significant challenge in Bangladesh's civil justice system is the large backlog of cases, leading to delays in justice delivery.
Alternative Dispute Resolution (ADR): There is increasing emphasis on promoting ADR mechanisms like mediation and arbitration to alleviate the burden on courts and facilitate quicker resolution of disputes.
Independence of Judiciary: While efforts have been made to separate the judiciary from the executive, maintaining full judicial independence and combating corruption remain ongoing challenges.
In essence, Bangladesh's civil law system is a dynamic blend of its common law heritage, extensive statutory enactments, and deeply embedded personal laws, constantly evolving to meet modern challenges.
RELATED Blog
0 comments