Topics of the Assignment:

Century old legal system: whether change necessary or not

Submitted to:

Mr. Azizul haque

Lecturer, Green University Bangladesh

Submitted by:

Md. Shabbir Hossen

ID: 171011019

Department of law

Green University Bangladesh

Introductory historical Background of legal
system

Legal System developed gradually in Bangladesh with her growth as a nation over the centuries. It is interesting to note how from
customary law of the tribal communities, originally inhabiting the country, enriched by the usage and custom of other communities who
had either migrated or invaded the country, and finally by the Aryan invasion and colonisation. Divine law of the colonizers further
developed the local customary law administered originally by the tribal communities, thereafter by the tribal chiefs and their council of
advisers derived from the tribal panchayet and ultimately by the king and his council of advisers drawn from the local Brahmin caste.
Legal system of the country was further enriched by the law promulgated by the king through royal edicts in respect of matters not
covered by the customary and divine laws. These laws better known as Hindu law were ultimately replaced by Islamic law after the
Muslim conquest though the members of the Hindu community were regulated in personal matters by the principles of Hindu law.
Islamic legal system was also replaced subsequently by the British colonial power by the common system of law and justice. Legislation
initially by the Governor-General-in-Council and ultimately by the elected legislature and administration of justice by a higherarcy of
courts were the distinctive features of the common law system continued even after the liberation of Bangladesh with the only addition of
written constitution as the supreme law of the country enshrining therein, amongst others, fundamental rights of the citizens and judicial
review by the High Court Division.

Aboriginal legal system was based on customary law of the tribal communities. Customary law has evolved from the past practice and
traditions of the tribal communities through the common consensus of their members considering their usefulness and reasonableness
followed from time immemorial. Customary law as rules of conduct of the members of the tribal community was administered by the
tribal PANCHAYET and their violation was punishable either with fine or ex-communication from the tribe considering gravity of the
situation. The territory which formed Bengal from the ancient time part of which now constitute Bangladesh was inhabited originally by
austroloid people, and in course of time this race was mixed up with other races entering the country through migration or invasion and
enriched the local customary law by their customs and traditions. Panchayet system is said to have directly descended from tribal
practice of the austroloid people. In course of time tribal community system gave rise to the tribal chieftainship in Bengal. These
chieftains wielded coercive power not only to the members of the tribal community to observe the customary rules of conduct but also to
impose their directives. The chieftain assumed the function of dispute settlement with the help of the members of the panchayet chosen
from the elders of the community. But in course of time such chieftainship gave rise to small kingdoms in the country each ruled by a
king. Such king might have dispensed with the service of the panchayet or absorbed some of the members of the same as members of his
council of advisers having power to dispense with their advice. Thus kings became more powerful than the chieftains. Like the chieftains
the kings also used to apply customary rules of conduct not only to administer justice but also to maintain law and order in the society.
The king also used to issue edicts and directions to meet novel situations in the society to be followed by the members of the society under
pains of penalty for violation of the same. So before the Aryan invasion of the country legal system was based mainly on customary laws
supplemented in the later period by the edicts and directives of the chieftains and subsequently of the kings.

Aryan legal system:

 After coming to India the Aryans followed certain norms in their conduct with one another. The rules of conduct (achar) of each class
included religious observances which were binding, and violation of the same was expiated by the rituals of penance (prayaschitta). The
Brahmins, the priestly class, helped the wrongdoers in performing those rituals. Those rules of conduct were called dharma and included
duties and obligations. In course of time it became the dharma of the king to compel the people to observe their rules of conduct, and the
Brahmins, as the repository of knowledge of those rules, advised the king in administering the same. Legal obligations and their
violations were subject matter of litigation (vyavahara). The king and the judges appointed by the king decided the litigations. It was the
obligation of the subjects to obey the command and law laid down by the king. As military chief he had the power to coerce people to
obey his orders. The king maintained social order by awarding punishment (danda) to the violators of the law. Dandaniti or the rules
about punishment was an essential part of the education of the king. But the king had to apply danda according to the established canons
of dharma. Hindus believe that dharma emanated from the Almighty through the sages of the primitive period and hence claim to be
divine origin law.

After Bengal came under Aryan rule, the system of law of the Aryans as modified by local customs and usages was in practice in Bengal.
Though the king or his appointed judges administered law and justice in the country, the village panchayet continued the function of
administering justice in the village community about petty disputes in addition to assisting revenue administration. During the rule of the
Palas the chief justice was called Mahadandanayaka or Dharmadhikar and during the rule of Chandras, Varmans and Senas he was
known as Mahadharmadhyaksha. That system of law was also known as Hindu law. Laws compiled by Gautama, Budhyana, Apastamba,
Harit, Vaisishtha, Visnu, Manu, Yajnavalkya, Narada, Brihaspati, Katyanya etc were the main sources of the Hindu law. In Bengal
Jimutabahana's Dayabhaga, a digest of all codes of HINDU LAW, was followed in respect of inheritance and partition of joint property
only, and in the rest of India Vijnaneshwar's Mitaksara, a commentary of the code of Yajnavalkya was followed.

Turko-Afghan legal system:

 After the conquest of Bengal by BAKHTIYAR KHILJI in 1204 AD, the application of Hindu law was limited to the personal laws of the
Hindus, and in the administration of the country and delivering justice the principles of Islamic law were applied. Principles of Islamic
law as ordained in the Quoran, words and deeds of the Prophet called sunnah, later supplemented by ijma or consensus of opinion of the
Prophets' disciples and learned scholars in Islamic law, and qiyas or analogical deduction are the sources of Muslim law. The country
was then either ruled by independent sultans or by the representatives of the Delhi sultanate until the conquest of the province by the
Mughals. None of the independent sultans except the rulers of Husayn Shahi dynasty could rule the country for long.

However, their administration was modelled on the set up of the Delhi sultanate. The sultan was the head of not only civil and military
administration but also of justice. The country was divided into units called IQLIM or ARSAH. Each division was under an officer who was
not only head of the civil administration of that area, but also head of the local army and maintained law and order. The sultan also
appointed a judicial officer called qazi in each division for administration of justice in accordance with the Islamic law. The sultan also
appointed a qazi in each and every town. Qazis administered justice with the help of the ulema, learned men in Islamic law. The qazi
decided litigations between the disputing parties, whereas the sultan decided cases of rebellion and blasphemy. As head of the judiciary
the sultan had power to revise the decisions of the qazis.

There was perhaps a hierarchy among the qazis, but no definite information is available on this matter. The sultan was the source of all
power. He had the power to promulgate and enforce law through the officers appointed by him. The only limitation on his power was the
rules of Islamic law which he obeyed. The learned men in Islamic law known as the ulema exerted much influence on the sultans. The
sultans ordinarily promulgated law in respect of civil and revenue administration through his firmans issued from time to time to meet
the exigencies of the situations arising in the civil and revenue matters, matters relating to marriage, succession, inheritance,
maintenance, partition, religious institutions etc were regulated by the principles of Islamic law. Petty disputes among the villagers were
settled by the village panchayet selected from amongst the residents of the village. The non-Muslims were guided by their personal law in
matters between themselves. This shows that the Islamic law did not altogether replace the Hindu law.

Legal System under the Mughals:

 During the Mughal rule, the legal system introduced by the Turko-Afghans was not changed, rather consolidated. In every Pargana
(mahal) consisting of several villages, there was a qazi to decide civil and criminal cases, a sikdar to maintain law and order, an amin to
assess revenue and to decide land and revenue disputes, and an amil or malguzar to collect revenue. Similarly in every district there was
a district qazi to hear civil and criminal cases of district town and also to hear appeals from the decisions of the pargana qazis.

The faujdar maintained law and order in the district and also administered criminal justice arising from violation of law and order, and
malguzar was the head of revenue administration of the district and also decided land and revenue disputes. He also had power to revise
decisions of the amins. Qazi-ul-quzat (chief justice) decided civil and criminal cases of the provincial capital and also heard appeals from
decisions of the district qazis. The qazis administered justice according to the principles of Islamic law. But rules of the personal laws of
the non-Muslims were applied by him in deciding disputes between them. The qazi was assisted by the mufti in deciding cases according
to the rules of Islamic law and with the help of a person well versed in the personal law of the non-Muslims in deciding cases amongst
them. The sikdar of the pargana and faujdar of the district could punish the offenders for breach of peace only. The nazim (provincial
governor) had powers to revise the decision of the chief qazi in criminal offences punishable with death or mutilation.

The provincial diwan had the power to revise the decision of the district Malguzar. The village panchayet's power was also intact during
the Mughal rule. Though the Zamindars, as government agents for collection of revenue, had no judicial power they usurped the same
during the declining period of Mughal rule. By issuing firmans, the Mughal emperors promulgated laws in respect of secular matters and
the same were binding. But they did not make any law contrary to Islamic principles. Rather, the Mughal emperor Aurangzeb appointed
a commission for compiling the Islamic laws followed by the sunni school. The said compilation is known as Fatwa-i-Alamgiri.

Legal system under Company rule:

 After the battle of Palashi (1757), the power of the nazim started to dwindle further. However, the EAST INDIA COMPANY  did not assume
power till the granting of diwani in 1765. In 1772 the Company's governor WARREN HASTINGS for the first time appointed English
Collectors in each district for collection of revenue and administration of civil justice to the litigants with the help of Muslim ulema and
Hindu pundits, but did not interfere with the administration of criminal justice by the qazis in the districts. The collectors were
empowered to control police force and had magisterial power to arrest offenders and send them for trial to the criminal court of the
qazis. LORD CORNWALLIS divested the collectors of judicial power and appointed English officers as judges of the district civil courts. He
also stripped the qazis of their power to administer criminal justice, and created a circuit court of sessions in each division with English
officers to decide criminal cases of grave nature with the help of a qazi and a mufti. He established divisional courts to hear appeals from
the decisions of the district civil courts with the same judges of the circuit court of sessions. The divisional courts had to decide cases with
the help of Muslim ulema and Hindu pundits. Petty offences were tried by the judges of the district civil courts as magistrates. Petty civil
cases were tried by native judicial officers, called munsifs. Judges of District civil court also issued licences to the legal practitioners and
allowed them to receive fees from their clients for their services and this created the legal profession.

Lord Hastings again bestowed magisterial power on the collectors and appointed native judicial officers called sadar amins in the district
civil courts. Sadar Dewani Adalat initially constituted with the governor general and members of his council and subsequently with
experienced senior English officers, heard appeals from the decisions of the district or divisional civil courts, Sadar Nizamat Adalat
constituted with the self same judges of Sadar Dewani Adalat heard appeals from circuit courts of sessions. The REGULATING ACT of 1773
empowered the governor general-in-council to make regulations for administration of the country. Regulations made from time to time
started gradually to modify the Islamic legal system prevalent in the country. Ultimately Islamic law lost its sway and continued to apply
some of its principles as MUSLIM PERSONAL LAW.

The King of England in 1774 established a supreme court in Calcutta to decide civil, criminal, equity, admiralty and ecclesiastical cases
arising within Calcutta presidency town except petty civil cases. The Supreme Court tried civil disputes as a court of common pleas
following its procedure and tried the accused charged with grave offences with the help of grand jury and petty jury as the King's court
of England. The Supreme Court had power to issue writs like the King's Court of England and also power of supervision and control of
the subordinate courts. By the Act of Settlement 1781, the power of the Supreme Court to issue writs was much circumscribed and
limited within the Presidency town. Supreme Court in the presidency town had jurisdiction on the residents of Calcutta and the
European servants of the Company serving in India, and administered justice according to the English law.

But the courts set up by the Company administered justice according to Islamic law as modified by the regulations and subsequently by
the Acts made by the Governor-General-in-Council as legislature since 1833 from time to time. Lord WILLIAM BENTINCK created the posts
of principal sadar amins in the district civil courts with power to hear appeals from the decision of munsifs and additional judges to
exercise all powers vested in the district judges. He abolished the circuit courts of sessions and the divisional courts. He appointed
divisional commissioners not only to supervise the functions of the collectors but also to hold sessions to try offenders charged with grave
offences. He also made a regulation authorizing the governor general to empower district judges to hold sessions to try cases of grave
offences. District and sessions judges were empowered to reject fatwa of the qazis and muftis in cases where they obtained opinion of the
jury or assessors. Gradually district judges were also made session judges to try grave offences with the help of jury or assessors. Under
the Charter Act of 1833, the governor general in-council was turned into a legislature with a law member, and was empowered to make
Acts instead of regulations. Law commissions were constituted with eminent jurists to codify laws. These steps gradually replaced Islamic
system of law by the principles of common law of England.

Legal system under British rule: 

In 1857, Queen Victoria by a proclamation took over the administration of India from the hands of the Company. Codification of laws by
the extended legislature under Government

of India Acts was accelerated on the basis of recommendations of the law commissions. In 1862, the Calcutta High Court was established
by amalgamating the Supreme Court, the Sadar Diwani Adalat and the Sadar Nizamat Adalat. At the same time, the Islamic system of
law was replaced by the English common law system in 1862 with some modifications allowing both Hindus and Muslims to be regulated
by the rules of their respective personal laws as enjoined by their respective religion. In 1864, the posts of qazis, muftis, moulavis and
pundits were abolished. Muslim personal law deals with marriage, divorce, paternity, guardianship, maintenance, succession,
inheritance, gift, will, wakf, preemption etc.

The judicial officers of the subordinate courts were appointed from amongst the law graduates, practising lawyers and administrative
officers who were members of the Indian Civil Service (ICS). High court judges were appointed from amongst the practising barristers,
advocates and the district judges. The lowest level civil court was presided over by the munsif and criminal court by the magistrate in the
subdivisional headquarters. However, there were three classes of magistrates having first class, second class and third class power of
imposing sentences. Above the aforesaid courts were the courts of district judges, additional district judges and subordinate judges in
civil matters, and the courts of the district and additional district magistrates, the sessions judges, additional session judges and assistant
session judges in criminal matters in the district headquarters. The session courts were presided over by the same officer who decided
civil cases also as district judge, additional and subordinate judge. Appeal lay with the high court from the decision of the district court
and with the Privy Council in England from the decision of the high court. Since 1937 Indian Federal Court decided appeals from the
decisions of High Court where any question of interpretation of any law or Government of India Act 1935 was involved. Under the
Government of India Act 1861 Legislatures were set up in the provinces including Bengal with limited representation and also increased
of number of members of the central legislature with limited local representation to make provincial and local laws respectively.
Gradually representation in the control and provincial legislatures was extended and under the 1935 Act majority members of those
legislatures were elected through limited franchise of the people of the country. Till the partition of the country in 1947, the modified
English legal system was in operation. Before the introduction of English legal system, massive codifications were undertaken starting
with the enactment of the Evidence Act, 1853 and 1855, CRIMINAL PROCEDURE CODE  1861, Small Causes Court Act 1860, Penal Code
1860, CIVIL PROCEDURE CODE 1859, Contract Act 1872, Transfer of Property Act 1882, EASEMENTS ACT 1882, Civil Courts Act 1871, and
myriad other Acts, all mostly incorporating principles of English Law. Code of Criminal Procedure, Code of Civil Procedure, Civil
Courts Act, Small Causes Court Act and Evidence Act were subsequently modified and reenacted.

Legal system in Pakistan:

 During the Pakistan period except abolition of the jurisdiction of the Privy Council and conferment of the same on the federal court
established in 1937 under the Government of India Act 1935, there was no change in the structure and constitution of the courts. By an
amendment of the Act of 1935 the high courts were given power to issue writs, but subsequently that amendment was declared invalid by
the federal court. The Constitution of Pakistan 1956 empowered the high courts to issue writs not only to enforce fundamental rights, but
also to declare any action of public authorities to be without lawful authority and of no legal effect and to grant other remedies. After the
constitution came into force central and provincial legislatures were constituted according to the constitutional provisions. But prior to
that constitutional Assembly functioned also as central legislature and provincial legislatures elected under 1935 Act acted as such
legislatures.

The Supreme Court which replaced the federal court was given power to issue writs to enforce fundamental rights in addition to the
power to hear appeals from the decision of the High Courts. The Supreme Court and the High Courts could also declare null and void
any laws which was inconsistent with the fundamental rights. The laws made during British rule continued with minor modifications.
However, after the promulgation of martial law in 1958, the Constitution was abrogated. Trial by jury was abolished in June 1959, and in
1961 conciliation courts were constituted with the chairmen of the union prishads and representatives of the disputing parties to decide
petty civil and criminal cases. The Constitution of 1962 as amended in 1964 gave power to the high courts to enforce fundamental rights
in addition to power to issue writs, and the Supreme Court to hear appeals from the decisions of the high courts. But the constitution was
again abrogated in 1969 after the promulgation of second martial law.

Legal system in Bangladesh: 

After the emergence of Bangladesh in 1971, initially there was no change of laws and the judicial system. But with the coming into force
of the Constitution of Bangladesh on 16 December 1972, the Supreme Court of Bangladesh with two divisions, the High Court Division
and the Appellate Division, came into being. As the apex court the High Court Division has been vested with the power to hear appeals
and revisions from subordinate courts, and also to issue orders and directions in the nature of writs to enforce fundamental rights and to
grant other reliefs available under the writ jurisdiction.

The Appellate Division is vested with power to hear appeals from the decisions of the High Court Division or from any other body under
any statute. The High Court Division has also powers of supervision and control of the subordinate courts and tribunals. The Supreme
Court is a court of record and can punish any one for its contempt or contempt of the courts subordinate to it. The law declared by the
Appellate Division is binding on the High Court division and law declared by either division is binding on all subordinate courts. The
High Court Division may declare any law inconsistent with the fundamental rights as null and void. The President of the Republic
appoints and controls the judicial officers of the subordinate courts in consultation with the Supreme Court.

There are labour courts and labour appellate tribunals to decide labour disputes, administrative tribunals and administrative appellate
tribunal to decide service disputes of public servants, income tax appellate tribunal to decide income tax disputes, custom, excise and
VAT Appellate tribunal to decide disputes regarding custom and excise duties and VAT, court of settlement to decide disputes about
abandoned properties, special judges to try corruption cases against public servants, special tribunals to try criminal cases under the
Special Power Act 1974 and Nari-o-Shishu Nirjatan Daman Adalats to decide cases of crimes committed against children and women. To
decide election disputes the election tribunals are constituted with judicial officers. Other tribunals follow the same procedure as the civil
and criminal courts unless there is contrary provision in the concerned law. Family courts have been constituted with assistant judges to
decide family disputes. To decide money claims of the banks and other financial institutions Artha Rin Adalats have been set up presided
over by judges, and insolvency courts have been set up presided over by district or additional district Judges to declare defaulting
borrowers as insolvent. To try offences committed by children below the age of 16 years, juvenile courts have been formed with the
magistrates and sessions judges, and juvenile courts follow the special procedure laid down in the Children's Act.

Court martial formed under the provisions of the Army Act, Air Force Act, and Navy ordinance, tries the offences committed by the
members of the armed forces, and the decision of such a court cannot be challenged before the Supreme Court. There are village courts
in the rural areas and municipal conciliation boards in the urban areas to decide petty civil and criminal cases. The land appeal board is
the highest authority to hear revenue appeals from the decisions of the subordinate land revenue authorities, and the national board of
revenue decides tax, duty, excise and VAT matters at the highest level.

Almost all the substantive laws creating rights and obligations are those enacted during the British period, and are still in operation with
modifications from time to time. The most important modifications of the Code of Criminal Procedure are abolition of the provisions of
enquiry made by the magistrate to see whether there is a prima-facie case against the accused to send him for trial in the court of sessions
and trial of sessions cases by the assessors.
The legal system of Bangladesh is basically a common law system with the difference that the supreme court can not only interpret laws
made by the Jatiya Sangsad but can also declare the same null and void and enforce fundamental rights of the citizens. Though the legal
system is founded on the English common law, most of the laws of Bangladesh are statutory laws enacted by the legislature and
interpreted by the higher courts. The procedural laws provide for an adversarial system of litigation in which prosecution has to prove
the guilt of the accused who has no burden save in some exceptional cases, and the accused is presumed innocent till found guilty after
trial, whereas in a civil case the burden is divided between the litigating parties. Moreover, there is a separation of powers amongst the
legislature, executive and judiciary. The Supreme Court is not only independent of the other organs, but also acts as the guardian of the
Constitution. Subordinate judiciary is independent in exercising of judicial power. Since 1st November 2007 there are two classes of
magistrates, judicial and executive. Consecutive governments committed themselves to separation, but as yet no action has been taken at
the ground level. The Sangsad can enact laws, but the same cannot be inconsistent with the provisions of the Constitution, which include
a number of fundamental rights. Thus the legislative power of the Bangladesh Jatiya Sangsad is not unlimited like that of the British
parliament which is said to have power to make any law.

The basic law of Bangladesh is the CONSTITUTION of the People's Republic of Bangladesh, 1972 as amended from time to time. Till 2003,
fourteen amendments have been made. All laws of the country are made by the Jatiya Sangsad conforming to the tenets of the
Constitution. The laws enacted by the legislature and now in operation regulate almost all spheres of life. Ordinarily, executive
authorities and statutory corporations cannot make any law, but can make by-laws to the extent authorized by the legislature. Such
subordinate legislation is known as rules or regulations. Unless found ultra vires of the parent law, such rules or regulations are also
enforceable by the court like the laws made by the legislature. Important laws of the country may be classified under some broad heads
such as land and property laws, personal laws, commercial laws, labour and industrial laws, election laws, law of crimes, service laws,
fiscal laws, press laws and laws relating to the remedies.

In addition, there are various other laws on different subjects regulating different fields and spheres of activities of national life. To seek
remedy a person has to file a case before the appropriate court, tribunal or authority. Claims regarding money, property, compensation
etc is to be filed before the civil court presided over by the assistant judge or joint district judge according to value of the claim, and
complaint against commission of crime is to be filed either with the local police station or in the criminal court of judicial magistrate of
the first class of the locality. The police investigates the cognizable cases lodged with the police station and produces witnesses before the
court during trial. On the other hand, it is the responsibility of the complainant to produce witnesses before the court in the cases in
which magistrates take cognizance on the basis of a written complaint. There are other authorities before which remedies may be sought
by an aggrieved party. Those authorities are administrative authorities or tribunals. Except in respect of enforcement of fundamental
rights, admiralty, company matters and writ petitions, relief cannot be sought directly from the high court division which mainly deals
with appeals and revisions from the decisions of the subordinate courts.

The legal system is so vast and complicated that an ordinary person without the help of a legal practitioner (known as advocate) cannot
effectively seek legal remedy from the court, administrative authorities or tribunals though there is no legal bar in seeking remedy
directly without engaging a lawyer.

The attorney general is the principal law officer of the government. He is also leader of the bar and ex-officio chairman of
the BANGLADESH BAR COUNCIL. He is assisted by the additional attorney general, deputy attorney generals and assistant attorney
generals. They represent the state in the supreme court and conduct cases at courts on behalf of the state. The government pleader is the
principal law officer of the government in the district and he is assisted by the additional and assistant government pleaders. They
represent the state in the subordinate civil courts in the district and conduct cases in those court on behalf of the state. Similarly the
public prosecutor is another principal law officer of the government in the district in criminal matters. He is assisted by the assistant
public prosecutors. They conduct prosecution cases on behalf of the state in the courts of sessions, sessions level courts or tribunals in the
district. The police inspectors conduct prosecution cases on behalf of the state in the courts of the magistrates.

In Bangladesh every one is equal before the law, and entitled to equal protection of law, and there cannot be any discrimination on the
ground of religion, race, sex, etc and no one can be detrimentally affected in life, liberty, body, reputation or property except in
accordance with law. RULE OF LAW is one of the basic features of the legal system of Bangladesh.

Why Changes Necessary And How?

Before going to discuss regarding the present situation, problems and solution in the legal system related to the
corruption control let us see firstly the meaning of the term Corruption. Corruption is a serious problem
affecting the entire society at all levels and in all sectors. It is also the most obvious social concern - a theme of
everyday decision and debate. Where corrupt individuals are few, it is a personality problem. That can be
contained by correcting individuals. On the other hand, where corruption is all pervasive, as it is at present, it is
more important to reform the system itself rather than punishing individuals.

The nature of Corruption

2

Corruption operates mainly in two ways :

1. by misappropriation of public income or public assets which impoverishes the Society; and

2. by levying a charge for performing legitimate public duty which curtails its growth Society is
impoverished because it loses the assets that are its due. Growth is retarded in two ways  : directlyby
increasing transaction costs and indirectly by delays.

Factors of corruption
3

1. source : secrecy and complex regulations.

2. driving forces : individuals need and greed.

3. supportive environment : political interference leading to insecurity and low morale.

4. restrictive environment : transparency and accountability. Corrective measures, feedback, certainty of

punishment, Further, the remedies that are likely to overcome these factors are :

Fulfilling basic needs of officials and removing operational constraints that force officials to practice corruption
or connive at it; modifying these features of organizational culture which encourage corruption and minimizing
opportunities for corruption, particularly delays.

5. Increasing transparency and accountability to force officials to be more honest.

6. Modify disciplinary procedures to ensure quick disposal of cases and minimize obfuscation.

Klitgaard summarizes the “basic ingredients of corruption” in the following formula :

To effectively deal with administrative corruption, a three pronged action plan comprising of proper preventive,
detective and punitive measures needs to be devised and systematically implemented. Even though widespread
prevalence of corruption in administration has been sufficiently highlighted and also decried by all concerned,
remedial action, if any, has only been sporadic, unsystematic and lukewarm.

Corruption = Monopoly + Discretion - Accountability

4

Nobody today deny the right of the state to regulate individuals liberty and freedom in the interest of social as
well as criminal justice. Article 29 of the UNIVERSAL DECLARATION RIGHTS deals with this idea also.

When a crime is committed, justice must be done. Though it is easy to create an appearance of justice, more
appearance may turn out to be only an illusion.

Existing law in the Country/Present Situation

6

1. Criminal Law Amendment Ordinance, 1944 (Ord. XXXVIII of 1944).

2. Prevention of Corruption Act, 1947.

3. Anti-Corruption Act, 1957 (Act XXVI of 1957).

4. Anti-Corruption Rules, 1957.

5. Criminal Law Amendment Act, 1958 (Act XL of 1958).

6. Anti- Corruption (Tribunal) Ordinance, 1960 (XVI of 1960).

7. Criminal Law Amendment (sanction for prosecution) Rules, 1977.

Historical Background : Prevention of Corruption Act, 1947 .

7

During the second world war economy in British India had under-gone serious setback. The turmoil of the war
and the conditions thereafter facilitated the scope of corrupt practices among the public servants and
Government agencies. Prior to this Act the Criminal Law Amendment Ordinance, 1944 was promulgated for the
purpose of preventing the disposal or concealment of property or money procured by means of illegal acts
punishable under the Penal Code. The provisions of Criminal Law amendment Ordinance, 1944 were applicable
only with reference to the cases of the Penal Code-enumerated under sections 161,165,406,408,409, 417 and 420
where the person deceived is the Government or anybody acting on behalf of the Government. In the face of
prevailing situation all these laws were considered to be not adequate to combat the menace and as such the
Prevention of Corruption Act, 1947 was enacted. The purpose of legislation is to provide for the more effective law
to prevent and eliminate bribery and corruption for the public servants.

This Act operates throughout the whole of Bangladesh and applies to all her citizens and all the persons in the
service of Republic wherever they may be. It has got both intra-territorial and extra-territorial jurisdiction. In the
ambit of its intraterritorial jurisdiction it applies to all the persons residing in Bangladesh involved in the
commission of the offence enumerated thereunder, whether they are citizens of Bangladesh or not. In its
extraterritorial jurisdiction this Act applies to all persons in the service of the Republic of Bangladesh whether
they are in and out side Bangladesh. More precisely speaking this Act as it appears in the later part of sub-section
(2) of section 1, applies equally to all citizens of Bangladesh in the service of the Republic even when they are out
side Bangladesh.

For the purposes of this Act, “Public Servant”means a Public servant as defined in section 21 of the Penal Code
and includes an employee of any Corporation or other body or organization set-up by the Government and
includes under any law.

Penal Code VS Preventation of Corruption Act

10

Offenders under Sections 161 and of the Penal Code to be Cognizable Offences. - An offence punishable under
sections 161,162,163,164,165 or 165 - A of the Penal Code shall be deemed to be a cognizable offence for purposes of
the Code of Criminal Procedure, 1898, notwithstanding anything to the contrary contained therein.

11

For the purpose of showing what constitute the offences punishable under sections 161,162,163,164,165 or 165 - A of
the Penal Code, these are reproduced as below in illustrations form.

12

To establish the charge under section 161 of the Penal Code the following ingredients must be proved :-

(a) That the accused was a public servant or he was expected to be a public servant;

(b) That he accepted or obtained gratification or agreed to accept or attempted to obtain gratifications from some
persons;

(c) That such gratification was not legal remuneration and was not due to him;

(d) that he accepted or obtained or agreed to accept or attempted to obtain such gratification as a motive or
reward for doing or forbearing to do an official act or showing or forbearing to show favour or disfavour to some
one in the exercise of his official function or rendering or attempting to render any service or disservice to some
one with the Government or the Legislature or any public servant.

Thus to establish the charge under this section the ingredients at (a), (b), (c), and any one of those enumerated at
(d) must be proved and the evidence therefore, must be conclusive.
Section 162 relates to the offence of accepting or obtaining or agreeing to accept or attempting to obtain such
gratification as a motive or reward for himself or for any other person for including by corrupt or illegal means
any public servant for the purposes as contained in section 161.

Section 163 relates to the offence of including any public servant by exercise of personal influence for the
purposes as mentioned in the foregoing sections 161 and 162 of the Penal Code. Therefore the ingredients
constituting the offence under section 163 are more or less of the same type as in sections 161 and 162 with the only
difference that the accused in respect of offence under section 161 is a public servant or is expected to be a public
servant while the accuseds under sections 162 and 163 are persons other than public servants excercising personal
influence upon the public servant but the motive being the same for undue gains precipitated by corrupt and
illegal means consequently affecting the interest of the Government.

Criminal Misconduct
13

Section 5 of this Act speaks about Criminal Misconduct in the following manner :-

(1) A public servant is said to commit the offence of criminal misconduct-

(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other
person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section
161 of the Penal Code, or

(b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any
valuable thing without consideration . or. for a consideration which he knows to be inadequate, from any person
whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or
about to be transacted by him, or having any connection with the official functions of himself or of any public
servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the
person so concerned, or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property
entrusted to him or under his control as a public servant or allows any other person so to do, or

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains or attempts to
obtain for himself or for any other person any valuable thing or pecuniary advantage, or

(e) if he or any of his dependents is in possession, for which the public servant cannot reasonably account, of
pecuniary resources or of property disproportionate to his known sources of income.

14

Explanation.- In this clause “dependent” in relation to a public servant, means his wife, children and
stepchildren, parents, sisters and minor brothers residing with and wholly dependent on him,

(2) Any public servant who commits or attempts to commit criminal misconduct shall be punishable with
imprisonment for a term which may extend to seven year, or eith fine, or with both.
(3) In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person
on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources
or property disproportionate to his known sources of income may be proved, to his known sources of income may
be proved, that the accused person is guilty of criminal misconduct and his conviction therefore shall not be
invalid by reason only that it is based solely on such presumption.

(4) The provisions of this section shall be in addition to, and not in derogation of any other law for the time being
in force and nothing contained herein shall exempt any public servant from any proceeding which might, apart
from this section, be instituted against him.

15

From the above provisions the cardinal principles or the necessary ingredients for constituting the offence
under section 5(1) (a) of this Act are-

(1) the accused was a public servant;

(2) that he accepted gratification for himself or for any other person from any person ; and

(3) that he accepted the gratification as a motive or reward for doing or forbearing to do an official act to show
favour or disfavour to some one in the excersise of his official functions.

16

To constitute an offence under section 5(1)(b) of the Act the following ingredients must be present-

(1) that the accused was a public servant at the time of the commission of offence;

(2) that he accepted or obtained valuable thing without or with inadequate consideration from any person
concerned any with any official business pending before him.

17

The offence under section 5 (1)(c) requires the following ingredients to be present-

(1) that the accused was a public servant,

(2) that the dishonestly or fraudulently misappropriated any property entrusted to him.

18

For the purpose of bringing the offence under section 5(1)(d) of the Act there must be the following ingredients :-

(1) That the accused was a public servant at the relevant time;

(2) that he used corrupt or illegal means or otherwise abused his official positions;
(3) that he received for himself or for any other person valuable thing or pecuniary advantage.

To constitute offence under section 5(1) (e) the ingredients are :-

(1) That the accused was a public servant;

(2) that he himself or any of his dependents is in possession of property disproportionate to his known sources of
income;

(3) that he cannot satisfactorily account for such property.

Therefore, a public servant who accepts or obtains or agrees to accept or attempts to accept from any person any
illegal gratification or valuable thing without or with inadequate consideration, or dishonestly or fraudulently
misappropriates or otherwise converts for his own use any property entrusted to him or by corrupt or attempts to
obtain for himself or for any other person, any valuable thing or pecuniary advantage or is in possession of
property either by himself or any of his dependents beyond known sources of income and fails to account for such
property, is said to have committed the offence of criminal misconduct. On the introduction of section 5 in the
Act, sections 161,165 and 409 of the Penal Code have not been repealed by implication. As contemplated in sub-
section (4) of section 5, a public servant can will be prose cuted for the offence of criminal misconduct under
section 5 of the Prevention of Corruption Act, 1947 as well as for the offences under sections 161,165 or 409 of the
Penal Code.

The Criminal Law Amendment Act, 1958

19

The Prevention of Corruption Act, 1947 has been enacted for providing more effective law to deal with cases of
Corruption, while the Criminal Law Amendment Act, 1958 has been passed for providing speedy trial and
effective punishment thereof. Therefore the Criminal Law Amendment Act, 1958 is fundamentally supplemental
to the Prevention of Corruption Act, 1947 for accomplishment of its object. The Criminal Law Amendment Act,
1948 has altogether been repealed by way of replacement by the Criminal Law Amendment Act, 1958. This Act
does not create ‘any substantive offence but deals with procedural matters and special rules of evidence only. This
is undoubtedly a self-contained procedural law but not exhaustive by itself. Therefore it can be said “The
Criminal Law Amendment Act, is a comprehensive and self-contained statute.”

Problems
20

1. Criminal Justice as Social Criticism :

In any modem society criminal justice has three stages. In the first there is an accusation that is critical of some
act by a person who has said to have thereby broken the law. But the accusation itself must then be critically
tested in order to determine guilt or innocence, and this takes place in the second stage. It the accusation survives
the test and proves to be sound, there is a third stage to allow for condemnation of what was done through
punishment of the accused for what he did. Since all three stages are occupied with critical activities that are
governed by social rules of the highest authority-the law- it seems apt to speak of criminal justice as social
criticism.

21

2. Criminal Justice as Moral Criticism :

“Crime is morally wrong, and punishment for it is morally right.” Though it is altogether too simple and hides a
nasty tangle of problems, this statement seems uncontroversial. But even the plainest truths are sometimes
challenged, and it is not inconceivable that some skeptic may ask why crime is morally wrong and punishment
for it is morally right. We must then take a look first our penal laws and show why it is morally wrong to violate
the rules of conduct they establish. Criminal punishment itself must also be examined and shown to be more than
simply an evil that we tolerate. Finally we must look at those principles of criminal law upon which criminal
liability turns and show if we can that these principles are the hinges of moral judgements as well.

22

3. Morality and Criminal Justice :

The case against a moralistic conception of criminal justice is sometimes thought to be a case against moral
criticism of the criminal law and its administration. Such a view is profoundly mistaken, for criminal justice
must always remain under close and constant moral security, and must avoid whatever is morally wrong if it is
not in one way or another to become official injustice. Rules of conduct may not curtail beyond what is morally
justifiable the political liberties that citizens are entitled to enjoy in civil society, nor may such rules encroach
needlessly upon rights that allow people to live their lives just as they see fit. The procedures followed by a system
of criminal justice must be designed to find and then to respect the truth about matters bearing on liability while
at the same time conforming to principles of fair play and respect for human dignity when confronting
individuals with the awesome of the state. Moral matters, then, are of the greatest importance in carrying on the
business of criminal justice, though it is not for the sake of moral matters that it is carried on And one may
include among the many ironies of criminal justice that it is least likely to be morraly sound when it is carried on
most moralistically.

Solutions
23

Criminal Justice as a Feature of Removal and Correction The Popular View

Crime control has an important place among the major concerns of government of every country, and criminal
justice is at times thought by almost everyone to be part of a large public enterprise that is carried on to reduce
crime- to the vanishing point if possible. Law enforcement appears to play the most important part in this larger
enterprise since it involves apprehending and taking out of circulation people who have shown themselves to be
socially dangerous, both those who are already known to be criminals and those who have revealed their criminal
tendencies for the first time . Seizing and removing dangerous people makes the social environment that much
safer, at leat for the time of their removal ; and there is then opportunity to change those people who are
dangerous so that when they are once again free their presence will not longer constitute a danger.
24

After the police apprehend criminals, those administering the law in courtrooms (and courthouse corridors) try
to make sure that only those persons who really have shown themselves to be dangerous by committing a crime
are deprived of their liberty. These officials also distinguish the more dangerous from the less dangerous among
those who break the law, and exercise the discretion that they possess under the law to prosecute more readily
and charge more heavily those who are more dangerous, and to pass heavier sentences upon those whose absence
will benefit the community most. When a dangerous person is convicted he is sentenced to a custodial institution
designed to prevent him from doing further harm, and he is supposed to be subjected there to a regime of
correction intended to change him so that he is no longer a criminal danger. In all of this, criminal justice plays
only an ancillary role- that of making sure that only the criminally dangerous are deprived of their liberty, and of
measuring the deprivation imposed upon such people according to how criminally dangerous they have shown
themselves to be.

25

This picture of removal and correction has one other crime-prevention feature. The enterprise is designed not
only to correct those who have committed crimes, but also to correct inclinations to crime before a crime is
committed, by holding up as a standing threat to everyone the unpleasant consequences that a criminal may
except. Many in the business community believe that self-regulation is the right solution and that it is preferable
to government a regulation. Antibusiness groups argue that self-regulation is a sham- that only government
action can be expected to component of a comprehensive anticorruption programme, but they are not a
substitute for government controls. Both are needed, and each reinforces the other. The following area should be
or need to be improved in the practical point of view as per state desire :

26

1. Criminal Justice and the Rule of Law.

2. Human right of the accused under the Rule of Law.

(a) Legislative under the Rule of Law.

(b) Executive under the Rule of Law.

(c) Criminal process under the Rule of Law.- Rule of Law ensures certain minimum right of the accused in the
interest of justice and fairplay and provides adequate procedural mechanism by which these rights are
safeguarded. Inter alia, it provides for the following :

(a) Protection against arbitary arrests.

(b) Protection against arbitary searches of an accused’s premises.

(c) Right to be produced before a Magistrate within 24 hours of arrest.

(d) Right to go on bail. The Supreme Court has held that a release on P.R. Bond and speedy trial are the basic
rights of an accused.

(e) Right not to be prosecuted more than once for the same offence.

(f) Right not to be compelled to a witness against himself.

(g) Right not to be punished under a retroctive penal statute.

(h) Right to have the benefit of the presumption of innocence till his guilt is proved.

(i) Right not to be surprised at the trial and therefore to get copies of the documents and statements of witness on
which the prosecution wants to builds its case.

(j) Right to insist that evidence be recorded in his presence except in some special cases.

(k) Right to examine defence witnesses.

(l) Right to have notice of the charge.

(m) Right to test the evidence for the prosecution by means of crossexamination.

(n) Right to get an opportunity for explaining away evidence in court.

(o) Right to move at least one higher court in case of conviction or refusal of bail.

(p) Right not to be prosecuted for minor offences (i.e. punishable up to three years imprisonment) beyond a
maximum period of three years with certain exceptions.

(q) Right to be heard on question of sentence.

(r) Right of a child offender to be tried by a Juvenile Court.

(d) Judiciary process under the Rule of Law.

(e) Judicial Review of excutive and Legislative Actions.

(f) Fair prosecution and investigation under the Rule of Law. - Rule of Law thus regulates the functioning of every
organ of the State machinery. So the Legislative, the executive and judiciary including the agency responsible for
conducting State prosecutions and investigation must confine themselves within the four corners of the law and
the Constitution, and cannot be permitted to exceed the limits* of decency, fairplay and principles of natural
justice. Undoubtedly, the aim of criminal justice is protection of society, but in attempting to ensure that
protection it also intends to protect and promote human rights, including those of the accused. The idea is to
secure a conviction if it can be had by the use of utmost fairness both at the stages of investigation and
subsequent precaution.

(i) Prosecution.
(ii) Investigation.

27

The prevailing Laws related to Corruption Control in criminal justice system are appropriate and reasonable in
Bangladesh. As discussed in this country report different aspects of corruption related to criminal justice we
need to modernise the laws and its application. Because in this new millenium the advancement of science and
information technology and computer related society the pattern and mode of corruption changing day by day to
cope up with modern corruption pattern we need to modernise our laws and justice system . The investigation
system, the legal system and criminal justice system should be modernised with computer application, V.D.O.
and Audio recorded evidence for speedy disposal of corruption cases. In this regard I am providing a statistics of
corruption cases in a Special Tribunal designated for corruption cases of Dhaka Division, a Divisional Head
Quarter in Bangladesh including Capital city Dhaka.

28

217 corruption cases have been filed till last year and in this year from January to September 2002,102 cases has
been filed. Out of 219 cases 40 cases has been disposed of, still 179 cases pending in that court. The statistics shown
that about 12 cases in a month in filed, which is not alarming in densly populated Dhaka Division of Bangladesh.
For speedy disposal of corruption cases the number of judges should be increased and modern techniques should
be adopted in the Courts and the investigation system. The modem system prevailing in developed countries
like Japan may be adopted in Bangladesh

Bibliography:
 Sir HS Marine, The Ancient Law, Boston, 1993
; ABM Mofizul Islam Patwary, Legal System of Bangladesh, Dhaka, 1991;
HJ Abraham, The Judicial Process, New York, 1980
; WH Morley, The Administration of Justice in British India, New Delhi, 1976;
NC Sengupta, The Evolution of Law, Calcutta, 1925. The Constitution of Bangladesh 1972;
KE Hoque, Administration of Justice in Bangladesh, Dhaka 2006.