What is law?
According to the Article 152 of the Constitution of the People’s Republic of Bangladesh, 1972, “law” means any Act, ordinance, order, rule, regulation, bye law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh.
According to Austin, law is the aggregate of rules set by men politically superior or sovereign to men as politically subject. In other words law is the command of the sovereign. It imposes a duty and is backed by a sanction. Command, duty and sanction are the three elements of law.
According to Justice Holmes, law is a statement of the circumstances in which the public force will be brought to bear upon men through courts.
According to Gray, the law of state or of any organized body of men is composed of the rules which the courts, that are the judicial organs of that body, lay down for the determination of legal rights and duties.
According to Bentham, law or the law, taken indefinitely, is an abstract or collective term which when it means anything, can mean neither more nor less than the sum total of a number of individual laws taken together.
According to Salmond, law may be defined as the body of principles recognized and applied by the state in the administration of justice. In other words, law consists of the rules recognized and acted upon by the courts of justice.
How law is made?
The Constitution of the People’s Republic of Bangladesh is the supreme law of the land. The all other laws have to pass by the Parliament. The Acts of Parliament are treated as the national laws of Bangladesh. In order to make an Act of Parliament there is a stipulated procedure which must have to be followed. And this procedure is given in the Article 80 of the Constitution. According to this Article every proposal in Parliament for making a law shall be made in the form of a Bill. When a Bill is passed by Parliament it shall be presented to the President for assent. The President, within fifteen days after a Bill is presented to him, shall assent to the Bill or, in the case of a Bill other than a Money Bill, may return it to Parliament with a message requesting that the Bill or any particular provisions thereof be reconsidered and that any amendments specified by him in the message be considered; and if he fails so to do he shall be deemed to have assented to the Bill at the expiration of that period. If the President so returns the Bill Parliament shall consider it together with the President’s message, and if the Bill is again passed by Parliament with or without amendments by the votes of a majority of the total number of members of Parliament, it shall be presented to the President for his assent, whereupon the President shall assent to the Bill within the period of seven days after it has been presented to him, and if he fails to do so he shall be deemed to have assented to the Bill on the expiration of that period. When the President has assented or is deemed to have assented to a Bill passed by Parliament it shall become law and shall be called an Act of Parliament.
There is another procedure to promulgate laws which is commonly known as the ordinance making power of the President. The ordinance making power of the President is provided for in Article 93 of the Constitution. It is also called the law making power of the president. According to this Article, at any time when Parliament stands dissolved or is not in session, if the President is satisfied that circumstances exist which render immediate action necessary, he may make and promulgate such Ordinances as the circumstances appear to him to require, and any Ordinance so made shall, as from its promulgation have the like force of law as an Act of Parliament; but such ordinance can not be made, which could not lawfully be made under this Constitution by Act of Parliament; or for altering or repealing any provision of this Constitution; or continuing in force any provision of an Ordinance previously made.An Ordinance shall be laid before Parliament at its first meeting following the promulgation of the Ordinance and shall, unless it is earlier repealed, cease to have effect at the expiration of thirty days after it is so laid or, if a resolution disapproving of the Ordinance is passed by Parliament before such expiration, upon the passing of the resolution.At any time when Parliament stands dissolved, the President may, if he is satisfied that circumstances exist which render such action necessary, make and promulgate an Ordinance authorizing expenditure from the Consolidated Fund, whether the expenditure is charged by the Constitution upon that fund or not, and any Ordinance so made shall, as from its promulgation, have the like force of law as an Act of Parliament.
Do judges make laws?
Regarding the making of laws by the judges, there are two views on this point; one is that the judges can only declare the laws and another view is that judges can make the laws. According to the declaratory theory, judges are no more than the discoverers of law. They discover the law on a particular view and declare it. This view has been supported by many writers, jurists and judges.According to Sir Mathew Hale wrote, “The decisions of courts of justice do not make law properly so called, for that only Parliament can do; yet they have a great weight and authority in expounding, declaring and publishing what are the law of this state”.According to Blackstone, “They (judges) are the depositories of the law; the living oracles who must decide in all cases of doubt and who are bound by an oath to decide according to the law of the land”.
In Rajeshwar Prasad V State of West Bengal, Justice Hidayatullah observed: “No doubt, the law declared by the Supreme Court of India, binds courts in India but it should always be recommended that this court does not enact”.Blackstone’s theory that judges make no new law but merely can declare it, is only a fiction. If we only want to have a sound theory of the nature of judiciary law and the true operation of precedents, it is necessary to reject the fiction that the duty of the judges is only to expound the pre-existing law.The other view is that the judges can make the laws. A number of jurists have supported this view. Lord Bacon said that the points which the judges decide in cases of first impression are a “distinct contribution to the existing laws”.According to Dicey, “As all lawyers are aware, a large part and as many would add, the best part of the law of the UK is judge-made law; that is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by the Act of Parliament and is not recorded in the statute book. It is the work of the courts; it is recorded in the reports; in short, it is the fruit of the legislation”.
Speaking on the role of the judges, the US President Roosevelt said, “The chief law-makers in our country may be the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process or law, liberty, they necessarily enact into law parts of the system of social philosophy; and as such interpretation is fundamental, they give direction to all law making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century.
What is judicial law?
Judicial laws are those laws which are created by the courts. Judicial laws are the creation of law by the recognition and application of new rules by courts in the administration of justice. These are judicial decisions which provide a rule of law for subsequent decisions. Judicial laws are created by the judges or it can be said these are judge-made law. The application of judicial law arises after the cause has arisen. Judicial laws are in particular, limited and definite form. However a judicial decision primary settles a dispute between definite parties and it is not that much easy to interpret; the judicial law has only retrospective effect.
What is judicial law making?
Many areas of our law have been developed by the decisions of judges, for example, the tort of negligence. The speed at which the law develops can depend on whether the judge is an active or passive law maker. Active law making can be seen in the case of R v R (1991) where the House of Lords ruled that rape within marriage was a criminal offence. An example of passive law making is seen in the case of C v DPP (1995) where the House of Lords refused to change the presumption about criminal responsibility of children under the age of 14, feeling that it was the job of Parliament to make such major changes to English law.
Separation of powers
Actually the judicial law making is the legislative function of the judiciary. The judicial branch interprets laws and sets precedents, which is making laws, which is a legislative function.
Authority of judicial law making under Constitution of Bangladesh
Unlike the English legal system where the doctrine of judicial precedent is purely based on judicial decisions the doctrine in our system is based on the both the confined law and judicial decisions. Article 111 of the Constitution provides for the Constitutional status to the theory of precedent in respect of law declared by either Division of the Supreme Court. It states:“The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division shall be binding on all subordinate Courts.”By virtue of Article 111 of the Constitution the judge of the Supreme Court so far as it settles a point of law is a declaration for the nation as to what the law is.
Opinion of Supreme Court under Article 106
There appears to be some differences of opinion as to whether opinion of the Sumpreme Court under ti sadvisory jurisdiction would [be binding or not. The Indian Supreme Court has itsle f laid down that the advisory opinion does not have a binding force of law (Estate Duty Bill 1944 FC 73, ST. Xavier’s College case 1974 SSC 1389). Opinion of the Supreme Court rendered under its advisory jurisdiction, though not bindidng as precedent sare entitled to great weight and are normally to be followed by the courts (in Re Canvery Water Dispute Tribunal, AIR 1992 SC 522).
Role of judiciary in the development of the judicial law making in Bangladesh
Sher Ali & ohers Vs State, 46 DLR (AD) 67
In this case the leave was granted to put an end to the chaos, confusion and anarchy in the administration of criminal justice, by the judgment of the High Court Division. The question raised is whether the High Court Division has got power under section 561A of the CrPC to interfere with a decision of a Session Judge in revision under section 439A of the CrPC. The Appellate Division by a series of judgment held ‘yes’, but the High Court Division in the instant case said ‘no’. In that decision it was held that the judgment of the Appellate Division as per the mandate of the Article 111 of the constitution is binding on the High Court Division. Thus in the instant case the learned judges clearly violated the constitutional mandate of the Article 111 of the constitution. The learned judges have placed themselves well inside the perimeter of the contempt of this court and openly and consciously flouted Article 111 of the Constitution.
Bangladesh Agricultural Development Corporation (BADC) Vs Abdul Barek Dewan, 19 BLD (AD) 106
In this case Bimelandu Bikash oy Choudhury J. clearly spelt out hat is meant by ‘perincurium’ and the bindin effect of the udgment of the Supreme Court, Appellate Division, in paragraph 18 follows, “the word perincunium is a latin expression; which means through inadvertence. A decision can be said generally to be given per incurium when the court had acted in ignorance of a previous decision of its own or when the HCD had acted in ignorance of a decision of the appellate Division. Nothing could be shown that the Appellate Division in deciding the said case had over looked any of its earlier decision on the point so it was not open to the High Court Division to describe it as one given per incurium. Even if it were so it could not have been ignored by the High Court Division in View of the Article 111 of the constitution which embodies a rule of law, the doctrine of precedent”.
State Vs D.C. of Satkhira
In 1992 this case was on the basis of a newspaper report issued a Suo Moto rule on the D.C. of Satkhira and others to show cause as to why the detainee MD. Nazrul Islam should not be brought before the court to be dealt with in accordance with law and also to show cause under what authority he was being detained, the court found that the said defense was in custody in 1977 when he was a boy of 9 years of age in connection with 12 criminal cases and in some cases he was acquitted in some case period of his sentence expired and in some case no charge sheet was submitted by the police against him. The court therefore directed that the said detainee be set at liberty and held that: “so the detention of the detainee in custoy in connection with all the aforesaid criinal cases which have, in the eye of law, no existence at all is absolutely illegal void ab initio and without jurisdiction”.
Hefzur Rahman Vs Shamsun Nahar Begum, 47 DLR
The Daily Star & The Prothom Alo Vs State, 53 DLR
Child Trafficking Case, High Court Division, 1996
The petitioner sought to stop kidnapping and trafficking of Bangladeshi children and using them as camel jockeys, especially in UAE and rule was issue.
Dr. Mohiuddin Farook Vs Bangladesh & others 17 BLD (AD)1997
The Masder Hossain Case
Independence of the judiciary (also judicial independence) is the principle that the judiciary should be politically insulated from the legislative and the executive power is subsumed under the Article 14 of the International Covenant on Civil and Political Rights. The constitutional provision of a judicial branch of government, and the formal assurance that it is separate and independent of the other branches, represents the main way by which most states seek to comply with the principles contained in the Constitution.The landmark decision of Secretary, Ministry of Finance v Masdar Hossain (1999) 52 DLR (AD) 82 was determined on the issue that to what extent the Constitution of the Republic of Bangladesh has actually ensured the separation of judiciary from the executive organs of the State. In essence, the case was decided on the issue of how far the independence of judiciary is guaranteed by our Constitution and whether the provisions of the Constitution have been followed in practice.In 1995 by a writ petition number 2424 Masder Hossain along with 441 judicial officers who were judges in different civil court? Alleged inter alia that:
i. Inclusion of judicial service in the name of BCS (Judicial) under the Bangladesh Civil Services (Re-organization) Order, 1980 is ultra vires the Constitution;
ii. Subordinate Judiciary forms chapter II of the PART VI (THE JUDICIARY) of Constitution and thereby the Subordinate Judiciary has already been separated by the Constitution. Only the rules under Article 115 of the Constitution and/or enactments, if necessary, are required to be made for giving full effect to this separation of judiciary.
iii. Judges of the subordinate Judiciary being the presiding judges of the courts cannot be subordinate to any tribunal and as such. The judicial officers are not subject to the jurisdiction of the Administrative Tribunal.
The court delivered its historic judgment with 12 directive points on 7th May 1997 (reported in 18 BLD 558). The Government preferred an appeal by leave (Civil Appeal No. 79/1999) and the Appellate Division partly reversed the decision of the High Court Division by its judgment delivered on 2nd December 1999 (reported in 52 DLR 82) .In the said land mark ruling in 1999 what is popularly known as the Masdar Hossain case, the Appellate Division directed the Government to implement its 12 point directives, including for formation of separate Judicial Service Commission (JSC) to serve the appointment, promotion and transfer of members of the judiciary in consultation with the Supreme court. A further 12-point directive called for a separate Judicial Service Pay Commission, amendment of the criminal procedure and the new rules for the selection and discipline of members of the Judiciary.Bangladesh Supreme Court Bar Association played a significant role to implement this landmark judgment.
The last Caretaker Government taking a positive stance to separate the judiciary from the executive based on the constitutional directive principles and Appellate Division’s judgment in the Masder Hossain’s Case. Accordingly 4 service rules namely
(a) Bangladesh Judicial Service Commission Rules, 2007,
(b) Bangladesh Judicial Service (Pay Commission) Rules 2007,
(c) Bangladesh Judicial Service Commission (Construction of Service, Appointments in the Service and Suspension, Removal & Dismissal from the Service) Rules, 2007 and
(d) Bangladesh Judicial Service (Posting, Promotion, Grant of Leave, Control, Discipline and other Condition of Service) Rules, 2007 have been enacted and changes were bought in the existing Code of Criminal Procedure 1898 by Ordinance No II and No.IV of 2007. Finally the throughout a virtual journey the judiciary is separated from the executive and started functioning from 01, November 2007 independently.
Advantages of judicial law making
Judicial law making has some advantages. When judicial laws are made by the decision of the court, the judges decide cases in a calm atmosphere and can afford to hold the scales even between the contending parties. They perform their functions impartially and fearlessly.According to Salmond, case law enjoys greater flexibility than statute law. Statute law suffers from the defect of rigidity. Courts are bound by the letter of law and are not allowed to ignore the same. And in the arena of judicial precedent, analogical extension is allowed.
Disadvantages of judicial law making
There are certain disadvantages of the judicial law making. In the first place, the decisions of the judges are not intelligible to the common man. Those are to be found in the law reports which are not accessible to the man in the street. It is not possible for an ordinary individual to understand them and draw correct conclusions for them. Although the people are bound by them and are liable to be punished if they disobey them, but as a matter of fact, they are not in a position to understand them without the help pf the competent lawyers.Another disadvantage of judicial law making is that they create an atmosphere of uncertainty. Judges make law only when certain cases are brought before them and not otherwise. Moreover, a decision by one court may be reversed by another court. The result is that so long as a decision s not given by the highest court of the country, the law on the point is not settled and the atmosphere of uncertainty.Then the natural justice demands that the law should be known before it is enforced. In the case of judicial legislation, what happens is that a case is brought before a court of law and then the decision is given by a judge. It is only when a decision is given that the law is laid down. It is obvious that when the act was actually done, the law had not been laid down. No wonder the critics criticize the retrospectivity of operation of judicial law making.
The law making function of the judges has taken a new turn in the twentieth century. The sociological approach emphasizes the creative role of the judges in the society. During recent times some political systems left enough powers in the hands of the judges to make laws. Case laws are practical in character. It is based on the experience of actual cases brought before the courts rather than on logic and theory. The interest of justice also demands impartiality from judges and this can be assured by the existence of a binding precedent.The judicial law making is a common and generally accepted role in all legal systems. Judicial decisions play a creative part in the process of evolution of the law. But it seems that when major policy issues are involved, courts in the civil law system tend to observe a larger-degree of self-restraint in judicial law making than their counterparts in the common law system.It is submitted that in the present age, both the Act of Parliament and the judge-made law are equally important and one can not attain its end without the other. The aim of the law is the protection and progress of society and individual. For planned progress, legislation is necessary. To interpret it and to apply and to adopt it to a particular case, case law is equally necessary. Both legislation and the judicial laws contribute equally for the development of law.
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