Analyses on the History Of Bangladesh Legal System.

Purpose

The main intention of this study is to analyze the Legal System of Bangladesh, which comprises all courts that perform to ensure law in the society. This paper portrays the history and evolution of the Legal System of Bangladesh from ancient period to the British period.

Introduction

The Legal System of Bangladesh has not grown overnight or any specific period of history. It reached here through various phases and has been steadily developed as a continuous historical process. The Legal System of Bangladesh overdrawn its origin mainly to 200 years British rule in the Indian subcontinent. The Indian subcontinent has an obvious history of 500 years with Hindu and Muslim periods which come ahead of the British period and each of these early periods had an established Legal System with their own characteristics. In this paper, I have shortly explained the Legal System of Bangladesh from the ancient to the British under the title of Hindu, Muslim, British periods.

Hindu period: ancient judicial system

In ancient times, the Bengal (present Bangladesh) was ruled by the Hindu Kings for nearly 1500 years before and after the Christian era. Throughout the period, India was fragmented into several independent states and the king was the supreme authority of each state and contemplated to be the fountain of justice. If we talk about the court structure of ancient Hindu period, there were five preeminent types of court system.

1.The King’s Court

2. The Chief Justice’s Court

3. Special Tribunal

4. Town or District Court

5.Village Council

The King’s Court was both the original court as well as the apex court of appeal in the state. In the King’s court learned Brahmins, the Chief Justice and other judges, ministers, elders and other agent of the trading community used to give advice to the King for discharging of his judicial function.

In the process of appointment of the Chief Justice and other judges, the question of consideration played a vital role. While appointing the Chief Justice and other judges, the Brahmins were the first priority. The Kshatriyas and Vaisyas were the next preference but a Sudra was never considered to be appointed as a judge. Aside from this, women were not allowed to hold the office of a judge. Judges were asked to take promise that they would be impartial while deciding disagreement between citizen.

The judicial trial consisted of four stages like the plaint, reply, trial, investigation and and lastly the verdict or decision of the court. The administration of adjudication was governed by a bench of more than one judges even the king decided cases in his council. To reach a fair verdict doctrine of Precedent and evidences like documents, witnesses and the possession of incriminating and circumstantial evidence was used. Another noticeable part of ancient judicial system was trial by ordeal. Major types of ordeals were ordeal by fire, ordeal by water, ordeal by poison, ordeal by rice grains and lastly ordeal by lot.

For instance, ordeal by fire is explained here. The trial by fire method was based on the Hindu myth. According to the myth, fire is considered to be God and has the power of purifying. In the ordeal of fire, the accused was asked to walk through or sit or stand in fire for some specified time. If the accused comes out from the fire without any harm, he was declared to be innocent (Halim).

There were four methods of punishment.

1.By gentle admonition

2. By sever reproof

3.By fine

4.By corporal punishment

Caste consideration was a great factor in resolving punishment. According to Gautama, a Brahmin could flout a Sudra with impunity in contempt cases. A Kshatriya or Vaisya abusing a Brahmin was to be punished with 100 panas and 150 panas respectively

A Sudra was punished by corporal punishment for example cutting of tongue. Correspondingly, for committing murder, the murderer was to pay 1000 cows for killing a Kshatriya ,100 cows for a Vaisya and 10 cows for a Sudra. Alternatively, if a Brahmin was killed by a person who belongs to a lower caste, the murderer would be sentenced to death and his property confiscated. If a Brahmin was killed by another Brahmin, he was to be branded and vanished. If a lower caste person was killed by a Brahmin, he was to compound for the offence by fine (Abdul Halim).

Muslim Period: judicial system of Sultanate and Mughal Empire

The Muslim period starts with the infringement of the Turkish Muslim in the Indian subcontinent in 1100 AD. The period of conquest of India by Muslim in the year 712 when Muhammad Bin Qasim, well known Arab general defeated king Dahir and conquered Sindh and Multan (hossain,1934). The theory of Muslims was based on Quran, the religious book Muslim. According to the Quran, sovereignty lies in Allah. The King is His humble servant to carry out His will on earth. In Muslim period, everyman was considered as equal before Allah, overriding distinction of class, nationality, race or color and the ruler was Almighty’s chosen agent and trustee.

 The whole Muslim period in India may be divided into two separate periods – the Sultanate of Delhi and the Mughal Empire.

The judicial system under the Sultanate:

The Sultan was the prime authority of the administration of justice in his Sultanate. The judicial system under the reign of Sultanate was organized on the basic of administrative units. A systemic classification and gradation of the court were available at the seat of the capital, in province, districts, parganah and villages. The powers and jurisdiction of each court were clearly defined.

The courts established at the capital of the Sultanate were as, the King’s court, Diwan-e-Mazalim, Diwan-e -Risalat, Sadre Jehan’s court, Chief Justice’s court and Diwan-e-Siyasat.

The highest court in the capital was the King’s court, which exercised both original and appellate jurisdiction(article). It was presided over by the sultan himself and assisted by two legal experts with high reputation known as Muftis.

The apex courts of criminal and civil appeals were the court of Diwan-e-Mazalim and the court of Diwan-e-Risalat respectively. The Chief justice was known as Qazi-ul-Quzat and was appointed by the Sultan from amongst the most virtuous of the learned men in his kingdom.

Judicial System under Mughal Empire:

During this period, the Mughal Emperor was considered the ‘fountain of justice’. A separate department called Mahuma-e-Adalat was created by the emperor with a view to administering justice properly. Quran, Sunnah (ideology of prophet SM), Ijma, Qiyas and Fatwa were the main source of laws and legal procedures during this period . The Legal System was regulated by two Muslim codes called Fiqh-e-Firoz Shahi and Fatwai-I-Alamgiri and crime was classified under three broad types.

1.Crime against God

2.Crime against king

3.Crime against individual

During the Muslim period, there was nothing called trial by ordeal instead it was prohibited. There was a Qazi assigned for Parganah to decide civil and criminal cases, a sikder to maintain law and order, an amin to estimate revenue and to decide land and revenue disputes and an amil to collect revenue. Similarly, in every district, there was district qazi assigned to hear civil and criminal cases of district town and also to hear appeals as of the decision of the pargana qazis

There were three types of punishments for three types of crimes.

1.Hadd (fixed penalties):

Hadd means specific punishment for specific crime according to Sharia, like theft, robbery, rape, apostasy, defamation and drunkenness. For example, stoning to death was prescribed for adultery or drinking wine, cutting off right hand for theft. It was equally applicable to Muslim and non-Muslim.

2.Tazir (discretionary punishment):

Tazir was another type od punishment that prescribed for those crime which were not classified under hadd.

3.Qisas(retaliation) and Diya (blood money):

Qisas meant in principle life for life on the other hand, Qisas become Diya when the next kin of victim were satisfied with money as compensation for the price of blood. This also could not be reduced or modified either by the qazi or the emperor.

British period: modernization of ancient Indian Legal System

The British period in Bengal began with consolidation of power of the East India Company and the British ruler modernized the Legal System of ancient India under a series of Royal Charters. East India Company gradually established control and possession over Bombay, Madras and Calcutta which were later on known as presidency towns. Some changes were brought in judicial system with the intervention of some charters issued from time to time by the company in three presidency towns.

In the following periods, different kind of experiment made on Legal System. The Civil Procedure Code, Criminal Procedure code, Penal Code, Evidence Act etc. were enacted. The judges of High Court were appointed from amongst the practicing barristers, advocate, and the district judges. At that time, the English Common Legal System replaced the Islamic Legal System. In 1862 with some changes allowing both Hindus and Muslims to be regulated by the rules of their respective personal law as enjoined by their respective religion. By that, the posts which existed in Muslim period, were abolished. The most important changes were made by creating a hierarchy of civil and criminal Courts by Civil Court Act,1887 and Code of Criminal Procedure ,1898  under section 3 of the Civil Court Act,1887 created the following four classes of Civil Courts.

1.The Courts of the District Judges

2.The Courts of the Additional Judge

3.The Courts of the Subordinate Judge

4.The Courts of the Munsif

On the other hand, under Code of Criminal Procedure ,1898 created the following five types of Criminal Courts.

1.Courts of Session

2.Presidency Magistrates

3.Magistrates of the First Class

4.Magistrates of the Second Class

5.Magistrates of the Third Class

The judicial officers of the subordinate Courts were appointed from amongst the law graduates, practicing lawyers and administrative officers who were member of the Indian Civil Service.

Conclusion:

After completing the whole study, we can clearly see the caste difference, partiality amongst castes, illogical and brutal system of trial by ordeal. Also, women were deprived of their right. In the Muslim period, we can notice some improvement in Legal System where there was no caste difference. At the same time, we can see that judiciary was not independent. Punishment of stoning was so cruel and inhuman. Then we can see radical change and difference in the Legal System of British period especially in procedure of hearing, evidence, witness and punishment. The cruel punishment like trial by ordeal and stoning was removed in this period. However, the subordinate criminal judiciary was not separated from the executive. Lastly, I would say, comparing to Hindu and Muslim periods, the Legal System of British period was better.