0. How to use this guide, and the shape of the exam
The exam is described as mainly broad and conceptual — so the examiner is testing whether you can explain an idea in your own structure (definition → elements/theories → Bangladesh application → criticism/exceptions), not whether you memorised a slide verbatim. Every section below ends with an Exam angle box telling you the shape a likely answer should take.
0201 · Jurisprudence & Foundations
- What is jurisprudence, why study it
- Administration of justice: growth, kinds
- Sources of law: legislation, precedent, custom, opinion, religion
0202 · Law as a System
- Nature/kinds/classification of law
- Legislation, codification
- Law vs public policy
- Legal systems of the world
- Court structure of Bangladesh
0203 · Law-Making
- From Cabinet Division to Gazette
- Primary vs delegated legislation
0204 · Punishment
- Theories of punishment
- Capital punishment debate
- Modern prisons
- Probation & parole
0205 · State Machinery
- Constitutional bodies
- Parliamentary committees
- Statutory bodies: ACC, NHRC
- Public servants’ duties
- Organs of state & separation of power
0206 · Constitution & Rights
- FPSP, fundamental rights, writs
- Rule of law
- Amendments & case law
- Caretaker government
1. Jurisprudence, Administration of Justice & Sources of Law — Session 0201
1.1 Jurisprudence: definition and utility
Working definitions worth having ready: Salmond — “the science of the first principles of civil law”; Austin — the study of “positive law” (law properly so called) as it is, stripped of morality; Holland — “the formal science of positive law”. Jurisprudence asks questions law itself does not: what is law, why should we obey it, what is a right, what is justice.
| Category | Question it asks |
|---|---|
| Analytical jurisprudence | What is law? Meanings/uses of legal concepts (right, duty, ownership, possession, person) |
| Normative jurisprudence | What is law for? Its moral basis and purpose |
| Schools of jurisprudence | Competing theories of how the above questions are best answered |
Schools of jurisprudence, in one line each
Natural Law
Law is an offshoot of nature/reason/morality; an unjust “law” is not really law (lex injusta non est lex).
Analytical (Austin)
Law is the command of the sovereign, backed by sanction; morality is irrelevant to validity.
Historical (Savigny)
Law is not made, it is found — it grows out of the Volksgeist (spirit of the people) over time.
Sociological
Law is a social institution; study it by its function and effect on society, not just its text.
Realist
Law is what courts, police and law offices actually do in practice, not what the statute book says.
Pure Theory (Kelsen)
Law is a self-contained hierarchy of norms, valid by reference to a basic norm (Grundnorm), purged of politics and morals.
- Natural Law: আইন প্রকৃতি/নৈতিকতা থেকে আসে; অন্যায় আইন আসলে আইনই নয়।
- Analytical (Austin): আইন মানেই সার্বভৌমের আদেশ + শাস্তির ভয় — নৈতিকতার সাথে সম্পর্ক নেই।
- Historical (Savigny): আইন তৈরি হয় না, খুঁজে পাওয়া যায় — জাতির চেতনা (Volksgeist) থেকে ধীরে ধীরে গড়ে ওঠে।
- Sociological: আইনকে সমাজের একটি প্রতিষ্ঠান হিসেবে দেখা হয়, এর সামাজিক প্রভাব বিবেচনা করে।
- Realist: আসল আইন হলো আদালত বাস্তবে যা করে, বই-এ যা লেখা আছে তা নয়।
- Pure Theory (Kelsen): আইন একটি স্তরবিন্যস্ত নিয়মের কাঠামো, রাজনীতি বা নৈতিকতা থেকে সম্পূর্ণ আলাদা।
উদাহরণ দিয়ে মনে রাখুন: একটি রাষ্ট্র যদি একটি বৈষম্যমূলক আইন পাস করে — Natural Law বলবে এটি “আইন নয়” কারণ অন্যায়; Austin (Analytical) বলবে এটি “বৈধ আইন” কারণ সার্বভৌম পাস করেছে, ন্যায্য কিনা তা প্রাসঙ্গিক নয়। এই একটি উদাহরণ দিয়েই দুই স্কুলের মূল পার্থক্য বোঝানো যায় — পরীক্ষায় এভাবে লিখলে ভালো নম্বর পাবেন।
More definitions worth quoting by name
| Jurist | Definition |
|---|---|
| John Austin | “The philosophy of positive law” — the study of law as it actually is (command of the sovereign), stripped of morality |
| Salmond | “The science of the first principles of the civil law” — the science of civil law, i.e. law administered by the state’s own courts |
| Holland | “The formal science of positive law” — formal because it studies the form/structure of legal ideas, not their moral content |
| Gray | Jurisprudence is “the science of law”, concerned with the exposition of legal principles rather than their history or ethics |
| Roscoe Pound | Law as “social engineering” — a tool for balancing competing individual and social interests |
Utility of jurisprudence
- Gives lawyers and judges the logical apparatus (concepts of right/duty/liability/ownership/person) they use in every branch of law — you cannot argue a contract or property case coherently without an agreed idea of what a “right” is.
- Enables criticism and reform of existing law by supplying a standard (justice, utility, rights) outside the law itself — reformers need a yardstick that is not simply “what the statute already says”.
- Trains a lawyer’s mind to reason about law as a system, not a list of unconnected rules — indispensable in hard cases where no existing rule directly fits the facts, and a judge must reason from principle.
- Bridges law to political theory, so that constitutional debates (rule of law, separation of powers, rights) can be argued coherently — jurisprudence is, in this sense, the shared vocabulary the rest of this module (§§5–6) depends on.
- Gives a lawyer the tools to compare legal systems and predict how courts will resolve novel problems (new technology, new social practices) where no legislation yet exists.
1.2 Relation of jurisprudence with other social sciences
Law & society
Sociological jurisprudence treats law as a social institution shaped by, and shaping, social facts (custom, class, economy).
Why people obey
Explains motive, intention and criminal responsibility — the mental element (mens rea) that criminal law depends on.
Law & morality
Ethics supplies the standard of “ought” against which law is judged just/unjust; natural law leans heavily on this link.
Cost & efficiency
Law and economics asks whether a rule allocates resources efficiently — used heavily in contract, tort and competition law.
Where rules came from
The historical school reads present law as the sediment of custom and precedent accumulated over time.
Who makes the rules
Law is the instrument through which the state exercises sovereignty — political theory explains legitimacy, jurisprudence explains validity.
1.3 The concept, growth and necessity of administration of justice
Growth: three stages
Necessity of administration of justice
- Uniformity — before organised courts, kings/chiefs decided disputes arbitrarily with no consistency; legal justice binds even the judge to a declared, pre-existing law.
- Certainty — because the law is known in advance, people can plan their conduct to conform to it.
- Impartiality — the judge applies the law to all alike, rather than favouring a class or individual — the core of audi alteram partem and nemo judex in causa sua (natural justice).
- Without it, disputes would be settled by force, the stronger party would always “win”, and social order would collapse — hence Hobbes’s point that without a sovereign to administer justice, life is “nasty, brutish and short”.
1.4 Classification of justice
| Type | What it is about | Example |
|---|---|---|
| Civil justice | Enforcement of private rights between parties (private wrong) | Breach of contract, tort — remedy: damages, injunction, specific performance |
| Criminal justice | Punishment of a public wrong committed against the state/society | Theft, murder, rape — remedy: fine, imprisonment, death |
| Distributive justice | Fairness in allocating benefits/burdens among people (pay, taxes, welfare) | Progressive taxation, reserved quotas |
| Procedural justice | Fairness of the process by which a decision is reached, regardless of outcome | Right to be heard, unbiased investigation, due process |
| Retributive justice | Justice as proportionate punishment for wrongdoing | Sentencing that matches the gravity of the offence |
| Restorative justice | Repairing the harm — involving the victim, compensation, reconciliation — rather than only punishing | Victim-offender mediation, community service |
1.5 Sources of law
“Source” here means where a rule gets its legal force from — why a court will enforce it. The five classical sources: legislation, precedent, custom, professional (juristic) opinion, and religion.
1. Legislation
Direct, deliberate law-making by a competent authority (Parliament, or a delegate). The most authoritative source in the modern state — clear, certain, and can be changed quickly.
2. Precedent
Judge-made law: a principle laid down in deciding a case (the ratio decidendi) binds courts of equal/lower rank in future similar cases — stare decisis (“let the decision stand”). Dominant in common-law systems, including Bangladesh.
3. Custom
A rule of conduct the community has spontaneously and continuously observed, not because a political superior commanded it, but out of a felt sense of obligation.
4. Professional/juristic opinion
The writings and commentary of learned jurists (e.g. Blackstone, Dicey, Salmond) — persuasive, not binding, but courts cite them to fill gaps or interpret ambiguous law.
5. Religion
In many legal systems (classical Islamic law, Hindu law, canon law) religious texts are themselves a direct source of binding rules, especially in personal/family law.
Precedent, in more depth
Precedent is the source examiners probe hardest because it structures the entire Bangladeshi court system (§2.6). Two ideas to keep separate inside any judgment:
The binding rule of law — the reasoning actually necessary to decide the case on its facts. This alone binds future courts.
“Said by the way” — remarks, examples or hypotheticals in the judgment that were not necessary to the decision. Persuasive only, never binding.
| Kind of precedent | What it means |
|---|---|
| Binding (authoritative) | Must be followed by a lower/co-ordinate court — e.g. an Appellate Division ruling binds the High Court Division and all subordinate courts (art. 111) |
| Persuasive | A court may consider it but need not follow it — e.g. judgments of foreign superior courts, or of a court of equal rank in another jurisdiction |
| Original | Creates a new rule on a point never decided before |
| Declaratory | Merely applies an already-settled rule to new facts |
Why precedent matters as a source of law: it gives certainty and predictability (like cases are decided alike), allows law to develop incrementally to meet new facts legislation hasn’t anticipated, and respects the doctrine of separation of powers by letting courts fill gaps without usurping Parliament’s law-making role. Its main weakness: it can entrench a bad decision until a higher court or Parliament corrects it, and can be rigid where social conditions have changed faster than the case law.
Ratio decidendi মানে রায়ের সেই অংশ যেটা মামলাটি সিদ্ধান্ত নিতে সত্যিই দরকার ছিল — এটাই আইন হিসেবে সব নিম্ন আদালতে বাধ্যতামূলক (সংবিধানের ৩১১ অনুচ্ছেদ)। Obiter dictum মানে বিচারক “যাওয়ার পথে” বাড়তি যা বলেছেন — এটা মানতে বাধ্য নয় কোনো আদালত, শুধু পরামর্শ হিসেবে গুরুত্ব পায়। মনে রাখার সহজ উপায়: Ratio = “সিদ্ধান্তের কারণ” (must-follow), Obiter = “পাশের কথা” (follow করা যায়, বাধ্যতামূলক না)।
What makes a custom legally valid?
Not every habit is law. Courts (and jurists such as Salmond) generally require a custom to be: ancient/immemorial (existing “since time out of mind”), continuous (unbroken), certain (definite in nature and scope), reasonable, peaceably enjoyed (not by force), not opposed to a statute or public policy, and obligatory — followed as of right, not merely as courtesy.
Legislation: supreme vs subordinate
Proceeds from the sovereign power itself; cannot be repealed or controlled by any other legislative authority. In Bangladesh: the Constitution, and Acts of Parliament within their field.
Made by an authority other than the sovereign, so its validity depends on, and is controlled by, a superior/parent law. Includes rules, regulations, bye-laws, SROs.
1.6 Practice questions — Session 0201
This session is weighted heaviest for revision, so work through all of these, not just the ones that look familiar. Broad questions test whether you can build a full essay from a one-line prompt; case questions test whether you can spot which concept a fact-pattern is actually testing.
Broad / essay questions
- “Jurisprudence is the eye of law.” Discuss this statement with reference to the definition, utility and scope of jurisprudence.
- Examine critically the major schools of jurisprudence. How do they differ on the question “what is the source of law’s authority”?
- Explain the relation of jurisprudence with sociology, ethics and history, with one illustration for each.
- Trace the evolution of the administration of justice through its three historical stages. Why did private vengeance give way to state-administered justice?
- “Administration of justice is the modern substitute for private vengeance.” Discuss with reference to the advantages of legal (state-administered) justice over private retaliation.
- Distinguish between civil and criminal justice. Why do the two follow entirely separate courts and procedures in Bangladesh?
- Explain distributive, procedural, retributive and restorative justice, with one real-world example of each.
- “Legislation is the most important source of law in the modern state.” Do you agree? Discuss all five sources of law before answering.
- What is precedent as a source of law? Explain ratio decidendi, obiter dictum, and the doctrine of stare decisis, with reference to Article 111 of the Constitution of Bangladesh.
- What are the essential characteristics of a valid custom? Can an unreasonable or immoral custom still be recognised as law?
Case-study / fact-pattern questions
Question: Analyse whether this practice can be recognised as a valid source of law. What conditions would it need to satisfy, and what result follows if it fails one of them?
Suggested answer
The practice is a candidate for recognition as custom, a valid source of law independent of legislation — so the newcomer’s objection (“Parliament never passed it”) misunderstands sources of law, since custom binds precisely because it was not legislated. To be recognised, it must satisfy the classical tests: ancient/immemorial, continuous, certain, reasonable, peaceably enjoyed, not opposed to statute or public policy, and obligatory (followed as of right, not courtesy). On the facts (over a century old, unbroken, apparently definite and accepted without complaint) it likely qualifies. If it fails even one condition — e.g. it turns out to be enforced only by intimidation rather than “peaceable” acceptance, or it conflicts with a fisheries statute — a court will refuse to recognise it, and the newcomer would then be bound only by the general (statutory) law, not the local custom.
Question: Using Flew’s criteria for punishment and the definition of administration of justice, explain why this cannot be classified as administration of justice, and identify which classification of “justice” (if any) it superficially resembles.
Suggested answer
Applying Flew’s criteria, the mob’s act fails at least two requirements of genuine punishment: it is not the work of a recognised institutional authority, and it is not imposed by a body with lawful power to try and punish — it is private retaliation, not state action. Administration of justice is defined precisely as the modern substitute for private vengeance, administered through the state’s courts under known, pre-existing law with an impartial decision-maker; this incident reverts to the pre-legal stage of “self-help.” It superficially resembles retributive justice (proportionate suffering for a perceived wrong) but is legally mere vengeance/private retaliation, and the mob members are themselves liable for the criminal offence of murder/grievous hurt — guilt of the original offence is never a defence to unlawful private punishment.
Question: Explain, using the concepts of ratio decidendi and obiter dictum, whether the High Court Division is bound to follow the remark, and what force (if any) it still carries.
Suggested answer
The damages rule in the contract case is the ratio decidendi — the reasoning actually necessary to decide the case — and under Article 111 it binds the High Court Division absolutely. The remark about tort claims was not necessary to decide the contract dispute before the court, so it is obiter dictum. The High Court Division is not bound to follow it, but because it comes from the highest court, it carries strong persuasive weight, and a court would ordinarily follow it unless there is good reason (a material difference between contract and tort principles) not to.
Question: Discuss, with reference to the schools of jurisprudence (particularly the analytical and realist schools) and to precedent as a source of law, whether judge-made law of this kind is legitimate.
Suggested answer
A strict Austinian/analytical view would side with the appellant — law is only the sovereign’s command, so a judge filling a gap is not stating “law” until Parliament ratifies it. The realist school, by contrast, treats what courts actually do as law in practice, and would say the judge’s gap-filling is legitimate judicial law-making, which is exactly how precedent as a source of law works: where legislation is silent, courts must still decide, and their reasoning (once it becomes a binding ratio) becomes an original precedent creating new law. In the common-law tradition Bangladesh follows, this is legitimate and expected — Parliament remains free to legislate over it later, so the appellant’s objection describes a theoretical (Austinian) purity that does not match how common-law systems actually operate.
Question: Identify which school of jurisprudence each lawyer is arguing from (name the school and its founding jurist), and explain the essential disagreement between them.
Suggested answer
The first lawyer argues from the Natural Law school (lex injusta non est lex — an unjust law is not law), reflecting the natural-law tradition traced through thinkers such as Aquinas and, in modern form, Fuller. The second argues from Analytical positivism (Austin) — law is the command of the sovereign backed by sanction, and its moral content is legally irrelevant to its validity. The essential disagreement is whether validity and morality are necessarily linked: natural law says a sufficiently unjust rule forfeits the title “law”; positivism separates the question “is it law?” from the question “is it just?”, treating the latter as a matter for politics/morality, not legal validity.
Question: Explain how a court should treat these two competing customs as sources of law, what conditions each must independently satisfy to be recognised, and what happens if the new Act is later found to conflict with either custom.
Suggested answer
Each custom must be tested independently against the standard requirements (ancient, continuous, certain, reasonable, peaceable, obligatory, not contrary to statute/public policy) — one community’s custom being older or larger does not automatically make it superior; the court examines the evidence for each separately, community by community, typically limiting a local custom’s operation to the community that actually practises it, so both may validly govern their own users even though they conflict with each other. Because the new Act is silent, both customs can continue to apply as gap-filling law. However, since legislation (supreme, enacted law) ranks above custom in the hierarchy of sources, if the Act is later amended or interpreted in a way that is inconsistent with either custom, the statute prevails and the conflicting custom loses legal force to the extent of that inconsistency.
Question: Using religion and legislation as two distinct sources of law operating together in Bangladesh, explain how such a dispute is typically resolved, and identify which source of law governs which part of the estate.
Suggested answer
Bangladesh runs the two sources side by side rather than making one exclude the other. Religion as a source governs personal/family matters — here, the actual division of the inheritance among heirs is decided under the deceased’s religious personal law (e.g. Muslim inheritance rules under Muslim personal law, administered alongside statutes like the Muslim Family Laws Ordinance 1961). Legislation of general application — the Contract Act 1872 and the general law of succession/administration of estates — governs procedural and creditor-related matters that are religion-neutral, such as the creditor’s right to be paid out of the estate before distribution to heirs. So: religion decides who gets what share among the heirs; general statute law decides how the estate is administered and how outside creditors’ claims are satisfied first.
2. Law: Nature, Kinds & Classification; Legal Systems; Court Structure — Session 0202
2.1 Nature of law
A working definition to build an answer around: law is a body of rules of conduct, of general application within a state, enforced by the political authority of that state. Its recurring features: (1) it is a rule of human conduct, (2) it comes from a determinate authority (sovereign/legislature/court), (3) it is generally applicable, not a one-off command, (4) it is backed by state sanction — that last feature is what separates law from mere morality or etiquette, which have no organised enforcement machinery.
2.2 Kinds and classification of law
| Division | Kinds |
|---|---|
| By subject matter | Public law (state ↔ individual/state: constitutional, administrative, criminal) vs Private law (individual ↔ individual: contract, tort, property, family) |
| By content | Substantive law (defines rights and duties, e.g. what is theft) vs Procedural/adjective law (how those rights are enforced, e.g. CrPC, CPC) |
| By force behind it | Municipal/national law (within one state, backed by the state’s own sanction) vs International law (between states, traditionally weaker enforcement) |
| By branch | Civil law, criminal law, constitutional law, administrative law, labour law, commercial law, etc. |
| By origin (Salmond/Austin) | Imperative law (direct command of the sovereign) and, more broadly, Statute law (enacted), Case law (judge-made), Customary law |
| By moral foundation | Positive law (created by humans/government, enacted by lawmaker authority, not necessarily tied to morality) vs Natural law (based on universal moral principles held to be inherent in human nature, discoverable by reason) — the same divide that separates the Analytical and Natural Law schools in §1.1 |
| By scope of application | International law (governs relations between nations — treaties, conventions; enforced through bodies like the UN) vs Domestic/municipal law (governs relations within one nation, enacted and enforced by that nation’s own institutions) |
| By force / hierarchy in the state | Supreme law — the Constitution, and Acts within their field, which no other authority can override — vs Subordinate law — rules/regulations/bye-laws made under delegated power, valid only so far as they conform to the parent Act and the Constitution |
2.3 Nature and kinds of legislation; codification
Legislation is law-making — “that source of law which consists in the declaration of legal rules by a competent authority” (Salmond). Two kinds, already met in §1.5:
| Supreme legislation | Subordinate legislation | |
|---|---|---|
| Source | Sovereign power itself (Parliament, or the President under emergency ordinance power) | Any authority to which power has been delegated |
| Control | Cannot be annulled by another legislative body | Depends for validity on the parent/enabling Act — ultra vires if it exceeds that delegation |
| Bangladesh examples | Constitution; Act of Parliament (art. 65); Ordinance (art. 93) | Rules, Regulations, bye-laws, Statutory Regulatory Orders (SRO), notifications |
Codification
- Aim: to make law accessible, certain, definite, harmonious, logically arranged and simple — instead of scattered across custom and case law.
- Historical debate: Bentham pushed hard for codification in England, supported by Thibaut; opposed by Savigny (the historical-school view that living law cannot be frozen into a code) — a genuinely examinable clash of jurisprudential schools.
- Ancient codes: Code of Hammurabi (~1790 BC, Babylon), the Laws of Manu.
- In the subcontinent/Bangladesh: Codification began under British rule via the First Indian Law Commission (Charter Act 1833), chaired by Lord Macaulay, which produced the Penal Code (1860), Code of Civil Procedure, and the Limitation Act — codes Bangladesh still largely operates under.
2.4 Law and public policy: relationship and differences
The broad principles/goals a government chooses to pursue in the general public interest (e.g. reducing poverty, promoting industry). It is a statement of intent — not by itself binding or enforceable in court.
A specific, enacted rule that implements a policy and is enforceable by the courts, with a defined sanction for breach.
- Relationship: policy is usually the raw material, law is the finished, binding instrument — the Fundamental Principles of State Policy in Part II of the Constitution are a good Bangladeshi illustration: they are policy directives, deliberately made non-justiciable (art. 8(2)), unlike the enforceable Fundamental Rights in Part III.
- Differences: law is certain and enforceable, policy is flexible and aspirational; law binds courts and citizens, policy binds (morally/politically) only the government of the day; breach of law has a legal sanction, breach of a policy commitment has only a political one (loss of the next election, public criticism).
- Courts also use “public policy” as a limiting doctrine — a contract, arbitration award or foreign judgment can be refused enforcement in Bangladesh if it is “opposed to public policy” (Contract Act 1872, s.23), even though no specific statute forbids it.
2.5 Different legal systems of the world
A “legal system” is the legal regimen of a country as a whole — its constitution, primary legislation, subsidiary legislation, judicially-applied customs, and the principles/practices (civil, common, Roman, or other) that tie them together. Legal systems arose because ancestors needed an organised way to deliver justice and keep social harmony; as caseloads and societies grew, systems had to grow with them.
What makes a legal system “good”
- Delivers fair, impartial justice without favouring any party.
- Is transparent — proceedings are public so judgments are seen to be unbiased.
- Keeps corruption out of the judiciary.
- Has little or no political interference over the courts.
- Resolves cases speedily — “justice delayed is justice denied.”
Elements of an effective legal system
| Element | What it requires |
|---|---|
| Fair & unbiased hearing | Clear rules of evidence/procedure, an impartial judge and jury, presumption of innocence through bail, a defined standard of proof |
| Effective access | A working appeal system, legal aid/pro-bono services, alternative dispute resolution (ADR) and tribunals, courts of varied jurisdiction so cases go to the right forum |
| Timely resolution | Continuous hearings (few adjournments), pre-trial procedures that resolve issues early, statutory time limits at each stage |
Recurring problems, even in a well-designed system: socially-disadvantaged groups are over-represented in the criminal justice system; language barriers cause misunderstandings; unfamiliarity with court procedure makes ordinary people submissive to authority; and the cost of legal representation puts genuinely equal access out of reach for many litigants — worth naming if a question asks you to critically evaluate any legal system, including Bangladesh’s.
Common Law
Judge-made, built on precedent (stare decisis); statutes interpreted against a background of case law. UK, USA, India, Bangladesh.
Civil (Continental) Law
Built on comprehensive written codes (traceable to Roman law/Napoleonic Code); judges apply the code rather than build binding precedent. France, Germany, Japan.
Religious Law
Derives directly from religious texts/tradition (Shari’ah, Halakha, Canon law) — often governs personal/family matters even within otherwise secular systems.
Customary Law
Unwritten rules from long-established community practice; still primary in parts of Africa and Pacific customary/tribal systems.
Socialist Law
Law as an instrument of state economic planning and the ruling party’s policy, subordinating private property/contract rights to collective goals (former USSR, still China in modified form).
Mixed/Hybrid Systems
Combine two or more of the above — Bangladesh itself mixes common law procedure/precedent with Islamic personal law and codified statutes.
| Common law | Civil law | |
|---|---|---|
| Main source | Case law / precedent | Comprehensive code |
| Judge’s role | “Discovers”/develops law through reasoning from past cases | Applies the code; less law-making role |
| Trial style | Adversarial — parties drive the case | Inquisitorial — judge actively investigates |
| Flexibility | Evolves case-by-case, can be slow to update | Systematic and predictable, updated by legislative amendment |
More detail: core features and the four families of civil law (for a fuller comparison answer)
Core features of common law
- No single codified law-book is required; often no single written constitution either (e.g. the UK).
- Judicial decisions are binding — a highest court’s decision is overturned only by that same court or by legislation.
- Extensive freedom of contract — few terms are implied by law.
- General principle: everything is permitted unless expressly prohibited.
- Core principles: individual rights exist alongside the state’s; trial is adversarial; there is a presumption of innocence; case law co-exists with statute law; crimes are punished, civil wrongs are compensated.
Core features of civil law
- A codified system tracing its origin to Roman law — a written constitution plus specific codes (civil code, corporate, tax, administrative, constitutional).
- A sharp distinction between private law (marriage, divorce, contracts) and public law (constitutional, criminal, administrative) — often heard in two separate court systems.
- Only legislative enactments bind everyone; judge-made law has little formal weight in ordinary courts (though judges informally follow precedent), while constitutional/administrative courts can nullify laws.
- Scholarly legal writing carries real influence in some systems (e.g. Germany).
- Less freedom of contract — many terms are implied by law and cannot be contracted out of.
Four families of civil law
French civil law
France, Benelux, Italy, Romania, Spain, and their former colonies
German civil law
Germany, Austria, Switzerland, the Baltics, former Yugoslav republics, Greece, Portugal, Turkey, Japan, South Korea
Scandinavian civil law
Denmark, Norway, Sweden (and, by cultural integration, Finland and Iceland)
Chinese law
A hybrid of civil law and socialist law, as used in the People’s Republic of China
2.6 Court structure in Bangladesh
Apex court, created by art. 94 of the Constitution; two divisions.
Hears appeals from the High Court Division; final court of the land. Jurisdiction: appellate, review, reference/advisory (art. 106), issue & execution of process.
Original, appellate, revisional, reference and constitutional/writ jurisdiction (art. 102) — the only court that can issue writs.
Two parallel ladders, both under High Court supervision (art. 109).
District Judge → Additional District Judge → Joint District Judge → Senior Assistant Judge → Assistant Judge (Civil Courts Act, 1887, s.3)
Courts of Session (Sessions Judge → Additional → Joint Sessions Judge) and Courts of Magistrates — Judicial Magistrate: Chief Metropolitan/Chief Judicial Magistrate → Magistrate 1st class (Metropolitan Magistrate) → 2nd class → 3rd class; plus a separate Executive Magistrate (CrPC 1898, s.6)
Bangladesh’s specialised tribunals (subordinate courts of special jurisdiction)
Beyond the ordinary civil/criminal ladder, Bangladesh has a large number of specialised tribunals and courts, each created by its own statute for a specific subject-matter — a useful list to have ready if asked to “name a few specialised courts/tribunals in Bangladesh”:
Full list of specialised tribunals & courts
- Acid Violation Prevention Tribunal
- Administrative Tribunal
- Administrative Appellate Tribunal
- Arbitration Tribunal
- Artha Rin Adalat (Money Loan Court)
- Bangladesh Bar Council Tribunal
- Bankruptcy Court (Deulia Adalat)
- Conciliation Board
- Court of Special District Judge
- Customs Appellate Tribunal
- Cyber Tribunal
- Election Tribunal
- Electricity Court
- Environment Court
- Environmental Appellate Court
- EPZ Labour Court
- Family Court
- Juvenile Court
- Labour Court & Labour Appellate Tribunal
- Mobile Court
- Money Laundering Court
- Settlement Court
- Small Causes Court
- Special Judge Court
- Special Tribunal
- Speedy Trial Tribunal
- Tax Appellate Tribunal
- Village Court
- Women & Child Repression Prevention Tribunal
Appointment & tenure of Supreme Court judges
Practice questions — Session 0202
Broad: (1) Classify law under different heads and explain the difference between substantive and procedural law. (2) What is codification? Discuss its history and relevance to Bangladesh. (3) Explain the relationship and differences between law and public policy. (4) Compare the common-law and civil-law systems, and explain why Bangladesh is best described as a mixed legal system. (5) Draw and explain the civil and criminal court structure of Bangladesh.
Question: Using the distinction between supreme and subordinate legislation and the limits on delegated legislation, advise whether the guideline is valid.
Suggested answer
The guideline is subordinate legislation — its validity depends entirely on staying within the parent Act’s delegation. Two problems arise: (1) the parent Act only delegated power to make procedural rules, so a guideline creating a substantive criminal offence exceeds (“is ultra vires“) that delegation; and (2) creation of an offence is on the list of matters that can never be validly delegated at all, regardless of how the parent Act is worded, because it involves a major restriction of liberty that only Parliament itself may impose. The guideline is therefore invalid, and the prosecution founded on it cannot stand.
Question: Explain, with reference to the adversarial vs inquisitorial distinction, why the foreign party’s expectation is mistaken, and identify which legal-system family Bangladesh belongs to and why.
Suggested answer
The foreign company is expecting an inquisitorial trial (typical of civil-law/continental systems), where the judge actively investigates the facts. Bangladesh, having inherited the British common-law tradition, follows an adversarial system instead — the parties themselves (through their lawyers) gather evidence, examine and cross-examine witnesses and present the case, while the judge acts as a neutral umpire deciding between the two competing cases rather than an active investigator. Bangladesh is therefore best classified as a common-law (mixed/hybrid) jurisdiction — common-law procedure and precedent, overlaid with a written Constitution and religion-based personal law — and the foreign party’s expectation, drawn from a civil-law background, does not match how Bangladeshi courts actually operate.
3. Law-Making Process in Bangladesh — Session 0203
Based on the Cabinet Division briefing in your slides (Tanvir Ahmed, Joint Secretary). Two things to keep separate: the constitutional legislative procedure for a Bill (art. 80), and the administrative drafting pipeline a Bill travels through before it ever reaches Parliament (Rules of Business / Cabinet Division Secretariat Instructions, 2024).
3.1 What counts as “law” — the hierarchy of instruments
3.2 Three routes into force: Act, Ordinance, delegated legislation
Act of Parliament
Made under art. 65(1): “the legislative powers of the Republic” vest in Parliament (the House of the Nation). The ordinary, deliberative route.
Ordinance
Art. 93(1): when Parliament is dissolved or not in session and the President is satisfied immediate action is necessary, he may promulgate an Ordinance with the “like force of law as an Act of Parliament”. Must be laid before Parliament at its first sitting and lapses after 30 days unless earlier approved/repealed.
Delegated legislation
Proviso to art. 65(1): Parliament may, by Act, delegate to a person/authority the power to make rules, regulations, bye-laws with legislative effect — but cannot delegate policy, creation of an offence, creation of statutory bodies, major restriction of fundamental rights, or taxation.
Primary vs secondary legislation, precisely
Primary legislation is foundational law passed directly by Parliament, or by the President in Parliament’s absence. Secondary (delegated) legislation is subordinate law made by the Government or an authorised agency under power delegated by a primary law.
- Constitution — Parliament, by 2/3 majority
- Act of Parliament — Parliament, by simple majority
- Ordinance — the President, in Parliament’s absence
- Presidential Orders — issued by the President during 1971–72 under the Proclamation of Independence
- Rules (বিধি) — by the Government or another authority
- Prabidhi (প্রবিধি) — by any Statutory Authority
- Bye-laws — by Local Government Institutions
- Statutory Regulatory Order (SRO)
Constitutional Rules — the President’s “plenary” rule-making power
In a few places the Constitution directly empowers the President to frame Rules — these are called Constitutional Rules, made under the President’s plenary rule-making power, and are treated as primary legislation, as good as an Act of Parliament (example: Rules of Business under art. 55(6); Judicial Service Recruitment Rules under art. 115).
3.3 Constitutional legislative procedure for a Bill (Art. 80)
“Every proposal in Parliament for making a law shall be made in the form of a Bill” — art. 80(1).
Assent; or (for a non-Money Bill) return with a message asking reconsideration; or do nothing.
President must assent within 7 days of re-presentation — or is deemed to have assented.
Gazette publication completes the process.
3.4 The administrative pipeline before a Bill reaches Parliament
Drafts the proposed Bill; consults stakeholders; publishes the draft on its website for public comment (Rules of Business).
Cabinet Division’s committee scrutinises and refines the draft.
Under the Ministry of Law, Justice & Parliamentary Affairs — vets the Bill for legal/drafting soundness, including Bangla-language quality.
Ministry places the vetted draft before the Cabinet for approval; Cabinet Division then finalises the Bill or Ordinance form.
The relevant Standing Committee examines the Bill and reports back.
Becomes law and is published.
Practice questions — Session 0203
Broad: (1) Describe, step by step, how a Bill becomes an Act of Parliament in Bangladesh. (2) Distinguish an Act of Parliament from an Ordinance — when may the latter be used, and what are its limits? (3) Explain “contingent” and “plenary” rule-making power of the President, with reference to Masdar Hossain.
Question: Explain the constitutional basis for this action, what happens to the Ordinance once the new Parliament sits, and any limits on what the Ordinance could validly contain.
Suggested answer
Article 93(1) permits exactly this: when Parliament is dissolved (or not in session) and the President is satisfied immediate action is necessary, he may promulgate an Ordinance having the “like force of law as an Act of Parliament.” Once the new Parliament sits, the Ordinance must be laid before it at its first sitting; it lapses automatically 30 days after that sitting unless Parliament approves it earlier (in which case it may continue, typically by being re-enacted as an Act) or repeals it sooner. Substantively, the Ordinance is still subject to the same limits as any law — it cannot violate fundamental rights (Part III) or exceed what art. 93 itself permits (e.g. it cannot amend the Constitution), so the new offence is valid only if it does not infringe rights such as the prohibition on retroactive criminal liability (art. 35).
Question: Explain what happens to the Bill in this situation, distinguishing the rule for an ordinary Bill from the rule for a Money Bill.
Suggested answer
For an ordinary (non-Money) Bill, the President has 15 days either to assent or to return it once, with a message, for reconsideration; if he does neither — as here — he is deemed to have assented on expiry of that period, and the Bill becomes an Act regardless of his personal disagreement. For a Money Bill, the President has no power to return it for reconsideration at all — he may only assent, and silence again results in deemed assent after the prescribed period. Either way, the President’s inaction cannot block legislation; this reflects Bangladesh’s parliamentary system, where the President holds only a suspensive, not an absolute, check on Parliament’s will.
4. Theories & Modes of Punishment, Prisons, Probation & Parole — Session 0204
4.1 What is punishment, and why justify it
Punishment is “any pain, penalty, suffering or confinement inflicted upon a person by the authority of the law and the judgment of a court, for a crime or offence committed by him.” Following Antony Flew’s classic analysis, a state act only counts as punishment (rather than mere revenge) if it is: (1) an evil/unpleasantness to the recipient, (2) for an offence, (3) of the actual offender, (4) the work of a personal/institutional agency, and (5) imposed by a recognised authority — an act by an aggrieved private person acting alone is revenge, not punishment. This is exactly why mob “lynching” or extrajudicial “cross-fire” killings fail to qualify as punishment, however much they resemble it in effect.
4.2 Theories of punishment
| Theory | Core idea | Main criticism |
|---|---|---|
| Retributive | The offender must suffer in return, proportionate to the wrong done (“an eye for an eye” — qisas in Islamic criminal law) | Backward-looking, does nothing to prevent future crime; can be seen as legalised revenge |
| Deterrent | Punishment should be severe enough to stop the offender (specific deterrence) and others (general deterrence) from offending | Assumes offenders calculate consequences rationally; can lead to disproportionately harsh sentences |
| Preventive | Simply keep the offender away from society (imprisonment, transportation, death) so they physically cannot reoffend | Ignores rehabilitation; can be indefinite/excessive if taken too far |
| Reformative | The offender is a product of social/economic conditions and can be reformed through education and training; especially suited to young offenders | May be too lenient for serious/repeat offenders; hard to measure success |
| Expiatory | If the offender repents/atones (expiates) for the wrong, they should be forgiven | Narrow — depends on subjective repentance, little practical application in modern secular criminal law |
4.3 Modes/forms of punishment
Imprisonment
- Simple
- Rigorous (penal labour)
- Solitary confinement
- Indeterminate sentence
Capital punishment
Death penalty — see §4.4
Fine / forfeiture
Monetary penalty; forfeiture of property
Deportation/exile
Expulsion from the country (of foreign nationals) or banishment (of nationals)
Community-based alternatives
Probation, community service, conditional discharge (see §4.6)
Corporal punishment
Physical chastisement — largely phased out in modern criminal justice as inhuman/degrading
4.4 Capital punishment: arguments for and against
- Justice/vengeance — some crimes are so heinous that only execution is a proportionate response.
- Deterrence — the ultimate penalty should deter the gravest crimes (though the evidence for this is contested).
- Value of life — “It is by exacting the highest penalty for the taking of human life that we affirm the highest value of human life” (Edward Koch).
- Public safety/incapacitation — an executed offender can never reoffend or escape.
- Cost — no lifetime cost of imprisonment (though in practice appeals often make execution more expensive than life imprisonment).
- Denial of the basic right to life — the most fundamental human right of all.
- Irreversible error — wrongful convictions cannot be corrected once carried out (e.g. Cameron Todd Willingham, executed in Texas in 2004, later shown likely innocent).
- Unfair/discriminatory application — falls disproportionately on the poor, the mentally ill, and minorities.
- Weak deterrent effect — statistics have not consistently shown that the death penalty reduces the homicide rate more than long imprisonment does.
- Trauma & brutalisation — it re-traumatises victims’ families and, some argue, legitimises violence as a societal response, being itself a state-sanctioned, premeditated killing.
- Global trend — a majority of the world’s states have abolished the death penalty in law or practice.
4.5 Modern prison system
Contemporary correctional policy shifts the emphasis from pure retribution/incapacitation toward the following pillars:
| Pillar | What it means in practice |
|---|---|
| Rehabilitation focus | Education, vocational training, therapy for substance abuse/mental illness — reduces recidivism (repeat offending) |
| Restorative justice | Victim involvement in the process; community service, so offenders confront the impact of their acts and society is repaired, not just punished |
| Mental health & support | Comprehensive care, counselling and support groups given the high rate of mental illness among the incarcerated |
| Safe, humane conditions | Minimising overcrowding and violence; staff trained in de-escalation and cultural competency |
| Community reintegration | Transitional housing, job placement, family-visit programmes to ease return to society |
| Sentencing reform | Diversion, probation and community service as alternatives to incarceration for non-violent offenders; addressing sentencing bias |
| Data-driven policy | Continuous evaluation of what actually reduces crime, in collaboration with criminologists and sociologists |
4.6 Probation and parole
| Probation | Parole | |
|---|---|---|
| When | Alternative to incarceration, imposed at sentencing | After the offender has already served part of a prison term |
| Granting authority | The sentencing court/judge | The Parole Board, which has final authority over the parolee |
| Supervision | Probation officer | Parole officer (sometimes the same person holds both roles) |
| Strictness | Generally somewhat less strict | Usually stricter, especially at first |
| Violation consequence | A fresh sentencing hearing for the original offence, possibly a new jail term | Return to prison to complete the original, un-served sentence |
Typical conditions attached (both probation and parole)
Regular reporting to the supervising officer; attending counselling (drug, alcohol, anger management); random drug testing; maintaining employment/schooling; performing community service; avoiding contact with known criminals; staying within a defined area; not committing any further offence during the period.
Bangladesh: The Probation of Offenders Ordinance, 1960 (Ordinance No. XLV of 1960)
Practice questions — Session 0204
Broad: (1) Discuss the theories of punishment, illustrating each with an example of a punishment that best fits it. (2) “Capital punishment is a denial of the most basic human right.” Discuss, presenting both sides of the argument. (3) What reforms define a “modern” prison system, as opposed to a purely retributive one? (4) Distinguish probation from parole, and outline the law on probation in Bangladesh.
Question: Advise the court on its options under the Probation of Offenders Ordinance, 1960 — could it use a conditional discharge, and/or a probation order? State the statutory conditions and time limits that apply.
Suggested answer
Both options are potentially open. Conditional discharge (s.4) is available since he has no prior conviction and the offence carries not more than 2 years’ imprisonment (here, 18 months qualifies), provided the court considers it inexpedient to inflict punishment — the court could release him on a bond, with or without sureties, for a period not exceeding 1 year. Alternatively, the court may prefer a probation order (s.5), having regard to his age and character, placing him under a probation officer’s supervision for a period of not less than 1 year, nor more than 3 years, instead of sentencing him immediately. Given his youth and clean record, a probation order (with active supervision) is generally the more rehabilitation-focused choice, but either is legally available on these facts, and the court must record its reasons in writing.
Question: Identify whether this is probation or parole, and explain what is likely to happen to him following the breach, contrasting the consequence with what would follow a breach of probation instead.
Suggested answer
This is parole — release happens after he has already served part of a custodial sentence (two-thirds), not instead of one. Because parole is typically the stricter regime and is granted by the Parole Board, which retains final authority, a curfew breach will most likely result in his parole being revoked and his return to prison to serve out the remainder of the original sentence. Contrast this with a breach of probation (which happens instead of imprisonment, imposed by the sentencing court): a breach there would usually trigger a fresh sentencing hearing for the original offence, at which the court decides afresh how to punish it — including, but not automatically, a prison term. The key structural difference is that parole breach reactivates an already-fixed sentence, while probation breach reopens sentencing itself.
5. Constitutional Bodies, Parliamentary Committees, Statutory Bodies & Organs of the State — Session 0205
The recurring trap in this session is confusing a constitutional body (created directly by the Constitution itself, so Parliament cannot abolish it by ordinary Act) with a statutory body (created by an ordinary Act of Parliament, so Parliament can amend or abolish it by ordinary majority).
5.1 Constitutional bodies
| Body | Article | Core function |
|---|---|---|
| Election Commission | 118–126 | Superintendence, direction and control of elections to Parliament, and of the office of President |
| Public Service Commission(s) | 137–141 | Recruitment to, and matters relating to discipline of, the public/civil service |
| Office of the Comptroller and Auditor-General (CAG) | 127–132 | Audits and reports on all public accounts of the Republic; a key financial-accountability check on the executive |
| Attorney-General | 64 | Chief law officer of the government; gives legal advice to the government and represents it in court |
| Office of the Ombudsman | 77 | Empowered to investigate maladministration by public servants and report to Parliament — provided for, but never actually made operational by a law bringing it into force |
| Bangladesh Public Service Commission (Judicial Service) | 115, 116 | Judicial Service Commission (statutory under art. 115 framework) recruits members of the subordinate judiciary |
5.2 Parliamentary committees
Ministry-based Standing Committees
One for each Ministry — scrutinise Bills, policy and the performance of “their” Ministry.
Public Accounts Committee (PAC)
Examines the CAG’s audit reports on how public money was actually spent against what was budgeted.
Committee on Estimates
Examines whether the budget estimates reflect sound financial policy.
Committee on Public Undertakings
Examines the affairs of state-owned enterprises/corporations.
Committee of Privileges
Examines questions of breach of parliamentary privilege.
Business Advisory / Rules Committee
Manages Parliament’s own procedure and legislative business schedule.
Why they matter: committees are Parliament’s main tool for holding the executive to account between full sittings — since Bangladesh runs a parliamentary system where the Cabinet is drawn from, and controls the confidence of, Parliament (fusion of legislature and executive), committees are one of the few structural checks that survive that fusion.
5.3 Statutory bodies: Anti-Corruption Commission & National Human Rights Commission
Created by the Anti-Corruption Commission Act, 2004 (replacing the earlier Bureau of Anti-Corruption). An independent statutory body with power to investigate and prosecute corruption offences (including under the Prevention of Corruption Act, 1947), summon persons, and require declaration of assets. Chaired by a Commissioner appointed by the President.
Created by the National Human Rights Commission Act, 2009. A recommendatory/promotional body: it can inquire into human-rights violations (largely by requesting reports and, for private complaints, by referral), recommend remedial action, and promote human-rights awareness — but generally lacks direct enforcement/prosecution power, unlike the ACC.
5.4 Rights, obligations and responsibilities of public servants
- Political neutrality: civil servants are expected to serve any government of the day impartially, not a political party.
- Rights: security of tenure (subject to disciplinary procedure — art. 135’s protection against dismissal without reasonable opportunity to be heard), pension/gratuity, and recruitment/promotion governed by the Public Service Commission.
- Discipline: governed by the Government Servants (Discipline & Appeal) Rules — a public servant may be censured, have increments withheld, be compulsorily retired, removed or dismissed, but only after a fair inquiry (natural justice).
- Masdar Hossain case, 52 DLR (AD) 82: the Appellate Division directed the government to actually implement art. 22’s separation of the judiciary from the executive — creating a distinct Judicial Service and Judicial Service Commission, so that judicial officers are no longer administratively controlled by the Executive (Ministry of Law/Public Administration). This case is the anchor for both §2.6 (court structure) and this topic — cite it in either context.
5.5 Organs of the state and separation of powers
Legislature
Unicameral Parliament (Jatiya Sangsad), art. 65 — 300 directly elected + 50 reserved women’s seats. Makes/amends law, approves budget, elects/removes the President, ensures executive accountability.
Executive
President (ceremonial head of state), Prime Minister and Cabinet (real executive power, art. 55(2)) — determines policy, executes and enforces laws through the public service.
Judiciary
Supreme Court (two divisions) and subordinate courts — interprets law, resolves disputes, and reviews the constitutionality of legislative/executive action (judicial review, art. 102 & 7(2)).
Separation of powers — theory vs Bangladesh reality
Example to fix the idea: in the USA (presidential), the President is elected separately from Congress and cannot simultaneously be a member of it — a genuinely separate executive. In Bangladesh (parliamentary), the Prime Minister must be a Member of Parliament, and the Cabinet is drawn from sitting MPs who continue to vote in Parliament — the same people effectively make the law and execute it. This is why calling Bangladesh’s system a “strict separation of powers” on the Montesquieu model would be inaccurate; it is better described as a system of checks and balances within a fusion of legislature and executive, with the judiciary standing genuinely apart.
যুক্তরাষ্ট্রের মতো রাষ্ট্রপতি-শাসিত ব্যবস্থায় আইন বিভাগ ও নির্বাহী বিভাগ সত্যিকার অর্থে আলাদা। কিন্তু বাংলাদেশের সংসদীয় ব্যবস্থায় প্রধানমন্ত্রী ও মন্ত্রিসভা সংসদ সদস্যদের মধ্য থেকেই আসে — অর্থাৎ আইন বিভাগ ও নির্বাহী বিভাগ কার্যত একীভূত (fused), আলাদা নয়। সংবিধান শুধু একটি বিষয়ে স্পষ্টভাবে পৃথকীকরণ দাবি করে — বিচার বিভাগকে নির্বাহী বিভাগ থেকে আলাদা রাখা (অনুচ্ছেদ ২২), এবং এটিই মাসদার হোসেন মামলার মূল বিষয়বস্তু।
| Check | Who checks whom |
|---|---|
| Legislature over Executive | Question hour, no-confidence motion, budget approval, committee scrutiny, impeachment of the President (art. 52) |
| Judiciary over Legislature/Executive | Judicial review under art. 102 & 7(2) — a law or executive act inconsistent with the Constitution is void |
| Executive over Judiciary (formally limited) | President appoints judges (art. 95, 98) on advice/consultation with the Chief Justice — a point of institutional friction |
| Legislature over Judiciary | Constitutional amendment power (art. 142) can, within limits, reverse the effect of a judicial decision — but not the “basic structure” (see §6.4) |
5.6 Legislature and Executive in more detail (for case questions)
Two extra blocks of detail from your slides that examiners like to turn into fact-pattern questions:
Qualification & disqualification for Parliament
| Qualification | Disqualification (art. 66) |
|---|---|
| Citizen of Bangladesh | Declared by a competent court to be of unsound mind |
| Minimum age 25 years | An undischarged insolvent |
| Not of unsound mind | Acquires foreign citizenship or affirms allegiance to a foreign state |
| — | Convicted of a criminal offence involving moral turpitude, sentenced to 2+ years’ imprisonment, with 5 years not yet elapsed since release |
| — | Holds an office of profit in the service of the Republic |
Major functions of the legislature
Make and amend law; amend the Constitution; approve the national budget; elect the President and, if necessary, impeach/remove him; ensure accountability and transparency of the executive; approve Ordinances; assent to war.
The Executive: President, Prime Minister, Cabinet
- The President is the ceremonial Head of State (British-monarch model), elected by Parliament for a five-year term, not more than two terms (consecutive or otherwise). By art. 55(4), all executive action is formally taken “in the name of the President”, but he acts almost entirely on the advice of the Prime Minister — the two clear exceptions being his own discretion in appointing a Prime Minister (art. 56(3)) and the Chief Justice (art. 95(1)).
- The Prime Minister and Cabinet hold the real executive power of the Republic (art. 55(2)) — real decision-making, policy formulation, piloting legislation, and coordinating the administration, because the Cabinet commands the confidence of the majority in Parliament.
- The executive cannot spend from the Consolidated Fund without an Appropriation Act, and cannot promulgate an Ordinance except under the strict conditions of art. 93 (Parliament dissolved/not in session + genuine urgency).
5.7 Practice questions — Session 0205
Broad / essay questions
- Distinguish constitutional bodies from statutory bodies. Give at least three examples of each, and explain why the distinction matters legally.
- Explain the role and powers of the Anti-Corruption Commission and the National Human Rights Commission. Why does one have prosecutorial power and the other largely does not?
- Discuss the role of parliamentary committees in ensuring executive accountability, with special reference to the Public Accounts Committee.
- Explain the constitutional duties and obligations of a public servant under Article 21, and describe the disciplinary safeguards that protect them.
- “Bangladesh follows a parliamentary, not a strict separation-of-powers, system.” Discuss with reference to the three organs of state and Article 22.
- Discuss the significance of the Masdar Hossain case for the independence of the judiciary in Bangladesh.
Case-study questions
Question: Advise whether the challenge succeeds. Would your answer differ if Parliament instead tried to abolish the Election Commission?
Suggested answer
The challenge fails. The NHRC is a statutory body, created entirely by an ordinary Act of Parliament (the NHRC Act, 2009) — Parliament that created it by ordinary majority can equally amend or abolish it by ordinary majority; no constitutional amendment is required. The answer would be different for the Election Commission: it is a constitutional body, created directly by Articles 118–126 of the Constitution itself. An ordinary Act of Parliament cannot abolish a body the Constitution itself establishes — doing so would require a constitutional amendment under Article 142 (2/3 majority), and even then could face a basic-structure challenge, since free and fair elections are close to the democratic core of the Constitution.
Question: Identify which constitutional article(s) and principle(s) are engaged, and explain what procedural protection the civil servant should have received.
Suggested answer
This engages Article 135 (protection against arbitrary dismissal without a reasonable opportunity to be heard) read with the general principles of natural justice (audi alteram partem) that also underlie the rule of law discussion in §6.3, and Article 21’s framing of public servants’ duty to serve the people impartially (which cuts both ways — it also implies they should not be punished for lawful, professional conduct). Procedurally, he should have received a formal disciplinary inquiry under the Government Servants (Discipline & Appeal) Rules: a written charge, an opportunity to respond/defend himself, and a reasoned decision — none of which occurred here, making the dismissal open to challenge (e.g. by writ of certiorari/mandamus in the High Court Division) as arbitrary and in violation of natural justice.
Question: Using Article 22 and the holding in Masdar Hossain, explain why the judge is right, and what institutional structure exists to prevent this kind of executive interference.
Suggested answer
The judge is correct. Article 22 directs the State to ensure the separation of the judiciary from the executive, and in Masdar Hossain the Appellate Division held this must be given real effect — the executive cannot direct, control, or administratively interfere with how judicial officers decide cases. Following that judgment, a separate Judicial Service and Judicial Service Commission were created, taking recruitment, posting, promotion and discipline of judicial officers out of the Ministry’s hands, precisely so that no ministry could pressure a judge in a pending matter as attempted here. The circular is unconstitutional and the judge may lawfully ignore it.
Question: Explain which committee this is, its constitutional basis, and whether the corporation’s objection is sound.
Suggested answer
This is the Public Accounts Committee (PAC) (or, depending on the corporation’s nature, the Committee on Public Undertakings), acting under Parliament’s power to appoint Standing Committees (Article 76), specifically to scrutinise the CAG’s audit reports on public money. The management’s objection is not sound: “independence” in day-to-day operation does not exempt a state-owned enterprise from parliamentary financial accountability once its accounts are audited by the CAG (Articles 127–132) — the whole point of the CAG/PAC mechanism is to check exactly this kind of body, which spends or is responsible for public funds regardless of its operational autonomy.
6. The Constitution: Human Rights and Rule of Law — Session 0206
6.0 Bangladesh Constitution — key facts and structure (memorise these numbers)
These are the facts examiners use as easy, gradient-separating marks in an otherwise conceptual paper. Have them cold.
| Fact | Detail |
|---|---|
| Adopted | 4 November 1972, by the Constituent Assembly |
| Came into force | 16 December 1972 (Victory Day) |
| Chairman of the Drafting Committee | Dr. Kamal Hossain |
| Original structure | 153 articles, 11 Parts, 4 Schedules (now 7 Schedules and additional articles after amendments) |
| Number of amendments (to date) | 17 |
| Type of constitution | Written, rigid (special 2/3 majority to amend — art. 142), and the supreme law of the Republic (art. 7) |
| Form of state | Unitary, independent, sovereign Republic (art. 1) — not federal |
| Form of government | Parliamentary republic (restored by the 12th Amendment, 1991) |
| State language | Bangla (art. 3) |
| State religion | Islam, alongside equal status for other religions (art. 2A, inserted by 8th Amendment 1988, retained with “secularism” by the 15th Amendment 2011) |
| National flag, anthem, emblem | Prescribed by law under art. 4; anthem is the first ten lines of “Amar Sonar Bangla” by Rabindranath Tagore |
| Citizenship | Determined by art. 6 and the Citizenship Act — citizens of Bangladesh are collectively “Bangalee” as a nation (art. 6(2), amended over time), “Bangladeshi” as a matter of citizenship |
| Official Bangla text vs English | Art. 153(3): in case of conflict between the Bangla and English texts, the Bangla text prevails |
The Preamble — four founding pledges
How the Constitution is organised (Parts, at a glance)
Part I
The Republic — arts. 1–7: unitary state, sovereignty of the people, supremacy of the Constitution
Part II
Fundamental Principles of State Policy — arts. 8–25 (§6.1)
Part III
Fundamental Rights — arts. 26–47A (§6.2)
Parts IV–V
The Executive (arts. 48–64) and the Legislature (arts. 65–93)
Part VI
The Judiciary — arts. 94–117 (Supreme Court, subordinate courts, administrative tribunals)
Parts VII–XI
Elections; the Comptroller and Auditor-General; the Services (public servants); Emergency Provisions; Amendment of the Constitution (art. 142) and Miscellaneous
“Basic structure” / eternal features — the parts even a 2/3 majority may not destroy
সংসদ সংবিধান সংশোধন করতে পারে (২/৩ ভোটে, অনুচ্ছেদ ১৪২), কিন্তু সংবিধানের মৌলিক কাঠামো — যেমন বিচার বিভাগের স্বাধীনতা, মৌলিক অধিকার, প্রজাতন্ত্রের গণতান্ত্রিক চরিত্র — ধ্বংস করতে পারে না। এটাকে এভাবে মনে রাখুন: সংশোধনী মানে বাড়ির ঘর সাজানো চলবে, কিন্তু বাড়ির মূল কাঠামো ভাঙা চলবে না। আনোয়ার হোসেন চৌধুরী মামলা (১৯৮৯) — যেখানে হাইকোর্টের স্থায়ী আঞ্চলিক বেঞ্চ তৈরির সংশোধনী বাতিল হয়েছিল — এই মতবাদের ভিত্তি।
6.1 Fundamental Principles of State Policy (FPSP) and their enforceability
- Non-justiciable = a citizen cannot go to court to force the State to implement an FPSP (e.g. you cannot sue the government simply for failing to “adopt effective measures to remove… economic inequality”, art. 19).
- They still matter legally in two ways: (1) as an interpretive aid — courts read ambiguous statutes/rights in light of FPSP where possible; (2) they express the social/economic goals the state is politically bound to pursue, comparable to India’s Directive Principles.
- This is the clearest illustration of §2.4’s “policy vs law” distinction inside the Constitution itself.
What Part II actually contains
| Principle | Article |
|---|---|
| Nationalism, socialism, democracy, secularism | 8 |
| Fundamental aim of the State (socio-economic justice, freedom from exploitation) | 9–10, 14 |
| Democracy and human rights | 11 |
| Principles of ownership (state, cooperative, private) | 13 |
| Provision of basic necessities (food, clothing, shelter, education, medical care) | 15 |
| Rural development and agricultural revolution | 16 |
| Free and compulsory education | 17 |
| Equality of opportunity | 19 |
| Work as a right, duty and matter of honour | 20 |
| Duties of citizens and of public servants | 21 |
| Separation of judiciary from the executive | 22 |
ধরুন সংবিধান বলছে — “রাষ্ট্র সবার জন্য কাজের ব্যবস্থা করবে” (রাষ্ট্র পরিচালনার নীতি, অনুচ্ছেদ ২০ — FPSP) এবং আরেকটি জায়গায় বলছে — “আইনের আশ্রয় লাভের অধিকার সবার আছে” (মৌলিক অধিকার, অনুচ্ছেদ ৩১)। প্রথমটির জন্য কেউ সরকারের বিরুদ্ধে মামলা করে “আমাকে চাকরি দাও” বলতে পারবে না — এটা শুধু নীতিগত প্রতিশ্রুতি (non-justiciable)। কিন্তু দ্বিতীয়টি ভঙ্গ হলে সরাসরি হাইকোর্টে গিয়ে রিট করা যাবে (justiciable) — কারণ এটি মৌলিক অধিকার অংশে (Part III) আছে। এক কথায়: Part II হলো “লক্ষ্য/প্রতিশ্রুতি”, Part III হলো “আদায়যোগ্য অধিকার”।
6.2 Fundamental rights and constitutional remedies
Part III of the Constitution (arts. 26–47A) guarantees 18 fundamental rights, unlike FPSP, these are justiciable — directly enforceable in court.
| Cluster | Examples (article) |
|---|---|
| Equality | Equality before law (27); non-discrimination (28); equality of opportunity in public employment (29) |
| Personal liberty & life | Right to protection of law (31); right to life and personal liberty (32); safeguards on arrest & detention (33) |
| Fair trial protections | Prohibition of retroactive/double punishment (35); freedom from torture and cruel, inhuman or degrading punishment (35(5)) |
| Freedoms | Movement (36); assembly (37); association (38); thought, conscience, speech (39); profession/occupation (40); religion (41) |
| Property & enforcement | Property rights (42); right to move the High Court for enforcement of fundamental rights (44) |
| Writ | What it does |
|---|---|
| Habeas corpus | “You may have the body” — orders a person detaining another to produce them and justify the detention; releases unlawful detention |
| Mandamus | “We command” — orders a public authority to perform a public duty it has failed/refused to perform |
| Prohibition | Forbids a lower court/tribunal from proceeding beyond, or without, jurisdiction |
| Certiorari | Quashes a decision already made by a lower court/tribunal/authority that acted without or in excess of jurisdiction |
| Quo warranto | “By what authority” — challenges a person’s right to hold a public office |
- Habeas corpus (দেহ উপস্থিত কর): কাউকে বেআইনিভাবে আটকে রাখলে, তাকে আদালতে হাজির করানোর নির্দেশ — যেমন পুলিশ কারণ না দেখিয়ে কাউকে অনেক দিন আটকে রাখলে ব্যবহার হয়।
- Mandamus (আমরা আদেশ করছি): কোনো সরকারি কর্তৃপক্ষ তার আইনি দায়িত্ব পালন করছে না — যেমন অনুমোদিত পেনশন না দেওয়া — সেটি পালনে বাধ্য করা।
- Prohibition (নিষেধাজ্ঞা): কোনো নিম্ন আদালত/ট্রাইবুনাল তার এখতিয়ারের বাইরে গিয়ে বিচার শুরু করলে, সেটা থামাতে — মামলা এখনো শেষ হয়নি এমন অবস্থায় ব্যবহার হয়।
- Certiorari: নিম্ন আদালত এখতিয়ারের বাইরে গিয়ে ইতিমধ্যে একটি রায় দিয়ে ফেলেছে — সেই রায় বাতিল করতে ব্যবহার হয় (Prohibition-এর “পরের ধাপ”)।
- Quo warranto (কোন কর্তৃত্বে): কেউ যোগ্যতা ছাড়াই সরকারি পদে বসে আছে কিনা তা চ্যালেঞ্জ করতে ব্যবহার হয়।
সহজ পার্থক্য মনে রাখুন: Prohibition ব্যবহার হয় মামলা চলাকালীন (রোধ করতে), Certiorari ব্যবহার হয় রায় হয়ে যাওয়ার পরে (বাতিল করতে) — এই একটি লাইনই পরীক্ষায় সবচেয়ে বেশি কনফিউশন দূর করে।
No fundamental right is absolute
Rights such as movement (36), assembly (37), association (38), speech (39), profession (40) and religion (41) are each expressly made subject to “reasonable restrictions” the State may impose by law in the interest of things like public order, morality, security of the State, or relations with foreign states. This is a frequent trap in case questions: a restriction on a right is not automatically unconstitutional — the court asks whether the restriction is (a) imposed by law, and (b) reasonable in relation to a permitted ground, not whether the right was restricted at all.
6.3 Rule of law: principles and relationship with human rights
Historical roots: Aristotle (~350 BC) on government by law, not men; Magna Carta (1215) as the first practical foundation; theorised by Samuel Rutherford (Lex, Rex, 1644), John Locke (Second Treatise, 1690) and Montesquieu (The Spirit of the Laws, 1748). Islamic jurists had developed the supremacy-of-law idea even earlier, holding that not even the Caliph stood above the law.
A. V. Dicey’s three pillars
- স্বেচ্ছাচারী ক্ষমতার অনুপস্থিতি: কাউকে শাস্তি দেওয়া যাবে শুধু তখনই, যখন সাধারণ আদালতে প্রমাণিত হয় সে সুনির্দিষ্ট কোনো আইন ভঙ্গ করেছে — মনগড়া ক্ষমতা প্রয়োগ চলবে না।
- আইনের সামনে সমতা: সাধারণ মানুষ থেকে শুরু করে সরকারি কর্মকর্তা — সবাই একই সাধারণ আদালতের একই আইনের অধীন, কারো জন্য বিশেষ ছাড় নেই।
- আইনি চেতনার প্রাধান্য: ব্যক্তির অধিকার (যেমন ব্যক্তিস্বাধীনতা) কোনো লিখিত বিশেষ সনদ থেকে আসেনি — বরং আদালতের সাধারণ সিদ্ধান্তের ধারাবাহিকতা থেকে তৈরি হয়েছে।
সমালোচনা সংক্ষেপে: বাস্তবে সরকারকে অনেক ক্ষেত্রে বিচক্ষণতা (discretion) প্রয়োগ করতেই হয় — তাই Dicey-র তত্ত্ব বাস্তবে পুরোপুরি খাটে না, এবং শুধু “আইন অনুযায়ী শাসন” বললেই তা ন্যায্য শাসন প্রমাণ করে না (স্বৈরাচারী সরকারও নিজস্ব আইন দিয়ে শাসন করতে পারে)।
Lord Bingham’s modern sub-rules
- The law must be accessible, intelligible, clear and predictable.
- Questions of legal right/liability should be resolved by law, not by unchecked discretion.
- The law should apply equally to all, save where objective differences justify differentiation.
- The law must adequately protect fundamental human rights.
- Means must exist to resolve civil disputes without prohibitive cost or delay.
The Delhi Declaration, 1959 (International Commission of Jurists)
The modern, human-rights-linked concept of rule of law owes most to this Declaration, which broke it into three working committees:
Individual Liberty
- State must not pass discriminatory laws
- Must not interfere with religious belief
- Must not place undue restriction on freedoms
Criminal Administration
- Due criminal process
- No arrest without lawful authority
- Presumption of innocence
- Legal aid
- Public trial and fair hearing
Judicial Process
- Independent judiciary
- Independent legal profession
- A standard of professional ethics
Rule of law as enshrined in the Constitution of Bangladesh
| Rule-of-law principle | Constitutional article |
|---|---|
| Equality before law | Art. 27 & 28 |
| Right to life and personal liberty save in accordance with law | Art. 32 |
| Right to protection of law; no action against life/liberty/property except in accordance with law | Art. 31 |
| Safeguards against arbitrary arrest & detention (grounds informed, produced within 24 hours, right to counsel) | Art. 33 |
| No conviction except under a law in force at the time of the act; no double punishment; speedy & public trial before an independent tribunal; no compelled self-incrimination; no torture or cruel/degrading punishment | Art. 35 |
6.4 Amendments of the Constitution and relevant case laws
Bangladesh has amended its Constitution 17 times since 1972. You don’t need every date memorised — know the landmark ones and their significance:
| Amendment | Significance |
|---|---|
| 1st (1973) | Enabled prosecution for genocide, crimes against humanity, war crimes of the 1971 Liberation War |
| 2nd (1973) | Introduced preventive detention and emergency powers; allowed suspension of fundamental rights during emergency |
| 4th (1975) | Introduced one-party (presidential/BAKSAL) system, departing sharply from the 1972 parliamentary design |
| 5th (1979) | Retroactively legalised acts of the first martial-law regime (1975–79) — later struck down (see case law below) |
| 7th (1986) | Legalised acts of the second martial-law regime — also constitutionally contested |
| 8th (1988) | Made Islam the state religion; created High Court Division permanent benches outside Dhaka — the latter struck down (see below) |
| 12th (1991) | Reintroduced the parliamentary system of government (from the presidential system) |
| 13th (1996) | Introduced the non-party Caretaker Government system for holding general elections |
| 15th (2011) | Abolished the Caretaker Government system; reinstated secularism/Bismillah alongside state religion; entrenched “basic provisions” against amendment |
| 16th (2014) | Gave Parliament power to remove Supreme Court judges for misconduct — struck down in 2017 (see below) |
Landmark case law on amendments
Anwar Hossain Chowdhury v. Bangladesh, 1989 (the 8th Amendment case)
The Appellate Division struck down the part of the 8th Amendment that created permanent High Court benches outside Dhaka, holding it destroyed the “basic structure” of the Constitution — the unitary character of the Supreme Court. This is the case that imported the basic structure doctrine into Bangladeshi constitutional law: Parliament’s amending power under art. 142 is wide, but cannot destroy the Constitution’s basic structure/foundational features.
Bangladesh Italian Marble Works Ltd v. Bangladesh, 2009 (the 5th Amendment case)
The Appellate Division declared the 5th Amendment (and the martial-law period it retroactively validated) illegal and unconstitutional, reaffirming that Parliament cannot use its amending power to ratify an extra-constitutional seizure of power.
The 13th Amendment case, 2011
The Appellate Division held the Caretaker Government system inconsistent with democratic, elected governance in the long run, but allowed it to continue for two further general elections as a transitional measure — Parliament then used the 15th Amendment to abolish it outright.
The 16th Amendment case, 2017
The Appellate Division struck down the 16th Amendment, restoring the Supreme Judicial Council (rather than Parliament) as the body competent to inquire into and recommend removal of Supreme Court judges — again on basic-structure/judicial-independence grounds.
The Doctrine of Necessity — where the trouble started
6.5 Caretaker Government: provisions
What the CTG was designed to do: hand over executive power, for a short, defined interval, to a politically neutral Chief Adviser and Advisers, whose only job was to assist the Election Commission in holding a free and fair general election — precisely because incumbents were widely distrusted to run elections against themselves. Its abolition remains one of the most politically contested constitutional questions in Bangladesh, and is a strong live example for a “critically evaluate” essay question.
6.6 Practice questions — Session 0206 (highest-priority section)
Because this session is the constitutional core of the whole module, expect the exam to draw on it for at least one long, multi-part broad question and one detailed case study. Practice writing full answers to these, not just outlines.
Broad / essay questions
- Distinguish between the Fundamental Principles of State Policy and Fundamental Rights under the Constitution of Bangladesh. Why did the framers make one justiciable and the other not?
- Explain the five writs available under Article 102 of the Constitution, with an example of the kind of grievance each one addresses.
- “Rule of law means more than mere government according to law.” Discuss with reference to A. V. Dicey’s exposition, its criticisms, and Lord Bingham’s modern sub-rules.
- Explain the relationship between rule of law and human rights, with reference to the Delhi Declaration, 1959.
- Discuss how rule of law is enshrined in the Constitution of Bangladesh, citing specific articles.
- Explain the constitutional procedure for amending the Constitution of Bangladesh. Is Parliament’s amending power unlimited? Discuss with reference to the basic structure doctrine.
- Critically discuss the Anwar Hossain Chowdhury case (the 8th Amendment case) and its significance for constitutional law in Bangladesh.
- Trace the history of the Caretaker Government system in Bangladesh — its introduction, its constitutional basis, the 2011 judicial ruling, and its eventual abolition. Do you think its abolition was justified?
- “No amendment can destroy the basic structure of the Constitution.” Explain this doctrine with reference to at least two decided cases.
Case-study / fact-pattern questions
Question: Will the suit succeed? Explain the justiciability of Fundamental Principles of State Policy, and what remedy (if any) the citizen might pursue instead.
Suggested answer
The suit will fail. Article 19 sits in Part II (FPSP), and Article 8(2) expressly declares these principles non-justiciable — no court can compel the State to implement them, however long the delay. They operate only as a guide to governance and an interpretive aid, not as directly enforceable obligations. The citizen has no direct remedy to compel action on Article 19 itself; the realistic route is political (advocacy, elections) rather than judicial, though the citizen could try to use the FPSP indirectly — e.g. asking the court to interpret an ambiguous statute or a Part III right (such as equality, art. 27–28) in light of Article 19’s spirit, since FPSP can inform, even if it cannot itself found, a claim.
Question: For each of (a)–(d), name the specific writ under Article 102 that is the appropriate remedy, and briefly explain why.
Suggested answer
(a) Habeas corpus — this is an unlawful detention (no grounds disclosed, no magistrate informed, well beyond the 24-hour safeguard in Article 33); the writ orders the detaining authority to produce the man and justify the detention, releasing him if it cannot. (b) Mandamus — the department has a clear public duty to release an already-approved pension and has refused without lawful reason; mandamus compels performance of that duty. (c) Quo warranto — this challenges the person’s right/authority to hold the office at all, given he does not meet the statutory eligibility criteria. (d) Prohibition — since the tribunal has not yet decided the matter, prohibition stops it from proceeding further in a matter outside its jurisdiction (if it had already decided, certiorari would instead be used to quash that decision).
Question: Analyse this conduct against Dicey’s three pillars of rule of law and against the rule-of-law provisions enshrined in the Constitution of Bangladesh (arts. 27, 31, 32).
Suggested answer
This directly violates Dicey’s first pillar — absence of arbitrary power — since the executive is substituting its own will for a lawful court order rather than submitting to law determined through the ordinary courts. It also breaches the equality before law pillar: if a private citizen defied a court order this openly, they would face contempt proceedings; a minister instructing non-compliance claims an effective immunity ordinary citizens do not enjoy. Constitutionally, this conduct is inconsistent with Article 31 (right to protection of law — action only in accordance with law) and, depending on the agency’s action against the affected party, potentially Article 32 (life/personal liberty save in accordance with law) and Article 27 (equality before law, since the government is placing itself above the very law that binds everyone else). The minister’s instruction, if acted upon, would itself be unlawful and contemnable, and a further writ (mandamus, or contempt proceedings) could be sought to compel compliance.
Question: Using the basic structure doctrine and the Anwar Hossain Chowdhury and 16th Amendment precedents, advise whether this amendment can be sustained if challenged before the Appellate Division.
Suggested answer
The amendment is very unlikely to survive. While Article 142 gives Parliament a formally wide amending power, Anwar Hossain Chowdhury established that this power cannot be used to destroy the Constitution’s basic structure — which includes judicial independence and the courts’ power of judicial review as guardians of the Constitution’s supremacy (art. 7). The 16th Amendment case (2017) confirms the Appellate Division’s willingness to strike down even a validly-passed, 2/3-majority amendment that undermines judicial independence. Removing Article 102 review entirely would gut the judiciary’s ability to check the other two organs altogether — arguably an even more severe basic-structure violation than either precedent — so the Appellate Division would almost certainly strike the amendment down as unconstitutional despite Parliament’s procedural compliance with Article 142.
Question: Summarise the constitutional history of the Caretaker Government provision (13th Amendment, the 2011 case, the 15th Amendment) that each side is relying on, and explain the strongest constitutional argument available to each.
Suggested answer
History: the 13th Amendment (1996) introduced the non-party Caretaker Government to hold elections; the 2011 Appellate Division ruling (the 13th Amendment case) held the system inconsistent with democratic principle in the long run but allowed two further elections as a transition; Parliament then used the 15th Amendment (2011) to abolish it entirely. Ruling party’s strongest argument: the current constitutional text, validly amended, contains no Caretaker Government provision at all — the 15th Amendment is the settled law, and the 2011 judgment itself anticipated and endorsed its eventual removal. Opposition’s strongest argument: the 2011 judgment’s core reasoning was about restoring public confidence in election neutrality, and if that confidence has not in fact been achieved through the current system, this is a legitimate basis for a fresh constitutional amendment reinstating some neutral election-oversight mechanism — a political, not strictly legal, argument, since nothing currently in force obliges the government to reinstate the CTG. In short: legally, the ruling party is correct that no CTG obligation currently exists; the opposition’s claim is essentially a demand for a new amendment, not an assertion of an existing right.
Question: Using the doctrine of necessity and the Bangladesh Italian Marble Works precedent, advise whether the retroactive validation can stand.
Suggested answer
Following Bangladesh Italian Marble Works Ltd v. Bangladesh (2009), the retroactive validation is unlikely to stand. The Appellate Division in that case rejected the “doctrine of necessity” as a basis for legalising an extra-constitutional martial-law regime, holding that Parliament cannot use its ordinary amending power to bless orders made outside the constitutional order in the first place — an unconstitutional seizure of power cannot be cured merely by later parliamentary ratification, because the amending power under Article 142 itself derives its legitimacy from the Constitution and cannot be used to legitimise its own earlier suspension. The citizen’s challenge to the order affecting his property is therefore likely to succeed, and the “validating” amendment itself is vulnerable to being struck down to the extent it purports to ratify actions taken outside constitutional authority.
Question: Is the ban a valid restriction on the freedom of assembly under Article 37? Explain the test a court would apply, and what evidence the government would need to justify the restriction.
Suggested answer
Article 37 guarantees assembly “subject to any reasonable restrictions imposed by law in the interest of public order or public health,” so a restriction is not automatically unconstitutional — the court asks (1) whether the restriction is imposed by law (here, yes — a duly passed statute) and (2) whether it is reasonable in relation to a permitted ground (public order is a valid ground given recent communal violence). Reasonableness is assessed by proportionality: is the restriction rationally connected to the stated aim, no broader than necessary, and time-limited to the actual emergency rather than indefinite? A blanket ban on all assemblies over five people, applied without regard to whether a specific gathering (like a peaceful, pre-notified protest march) actually threatens public order, risks being found disproportionate/unreasonable — the government would need evidence of a genuine, continuing risk specific to gatherings of this kind, and the restriction should be no wider or longer than that risk justifies; a total, open-ended ban is the kind of measure courts are most likely to strike down as unreasonable.
Question: Which of the two amendments is more likely to be struck down as violating the basic structure, and why? Would your answer to Amendment A change if the real motive was shown to be removing a specific sitting judge?
Suggested answer
Amendment B is far more likely to be struck down: it abolishes Part III entirely and makes fundamental rights subject to ordinary legislative whim rather than constitutional guarantee — this destroys the basic-structure element of fundamental rights as an entrenched, justiciable core (and is now also expressly protected as unamendable “for perpetuity” by Article 7B), so it would almost certainly fail. Amendment A, a routine adjustment to a retirement-age figure, is on its face a legitimate exercise of the ordinary amending power and would normally be upheld, since it does not by itself touch judicial independence in substance. However, if the real motive is shown to be the removal of a specific sitting judge (a targeted, disguised removal rather than a genuine general policy change), the amendment becomes vulnerable on the same basic-structure ground as the 16th Amendment case — courts will look past the amendment’s neutral wording to its actual effect on judicial independence and security of tenure, and may strike it down as a colourable device to achieve an unconstitutional removal.
7. Recap & Exam Toolkit
A one-page-style summary to run through the night before. If you can explain every card below in your own words, you’re ready.
0201
- Jurisprudence = study of theories/philosophy of law
- 6 schools: Natural, Analytical, Historical, Sociological, Realist, Pure Theory
- Admin. of justice: 3 stages (self-help → weak state → crime/civil-wrong split)
- 5 sources: legislation, precedent, custom, juristic opinion, religion
0202
- Substantive vs procedural; public vs private; supreme vs subordinate
- Codification: Bentham (for) vs Savigny (against)
- Common law vs civil law vs religious/customary/socialist — Bangladesh is mixed
- Supreme Court: Appellate Division + High Court Division; two subordinate ladders
0203
- Constitution → Act/Ordinance → Rules/Regulations → SRO/Bye-laws → Circulars
- Bill route: Ministry → Vetting Committee → LPAD → Cabinet → Parliament → Standing Committee → Assent → Gazette (arts. 65, 80, 93)
- Cannot delegate: policy, offences, statutory bodies, rights, taxation
0204
- 5 theories: Retributive, Deterrent, Preventive, Reformative, Expiatory
- Capital punishment: justice/deterrence/cost vs right-to-life/irreversible-error/discrimination
- Probation of Offenders Ordinance 1960: ss. 4 & 5
0205
- Constitutional bodies (EC, PSC, CAG, Attorney-General, Ombudsman) vs statutory bodies (ACC, NHRC)
- Art. 76 parliamentary committees; art. 21 duties of public servants
- Legislature+Executive fused; Judiciary constitutionally separate (art. 22, Masdar Hossain)
0206
- FPSP (Part II, art. 8) non-justiciable vs Fundamental Rights (Part III) justiciable, art. 26 voids inconsistent law
- 5 writs under art. 102: habeas corpus, mandamus, prohibition, certiorari, quo warranto
- Dicey’s 3 pillars; Delhi Declaration 1959; rule of law in arts. 27, 31, 32, 35
- Basic structure doctrine: Anwar Hossain Chowdhury (1989), BD Italian Marble (2009), 13th Amdt case (2011), 16th Amdt case (2017)
- Caretaker Govt: 13th Amdt (1996) → crisis (2007–08) → conditional continuation (2011) → abolished by 15th Amdt (2011)
7.1 How to structure a broad/essay answer under time pressure
7.2 How to structure a case-study answer
- Spot the issue: read the fact pattern once for the story, then again to identify exactly which doctrine/article/case it is testing — most case questions in this module map onto one clear concept (a writ, a source of law, a punishment theory, an amendment limit).
- State the rule: the relevant article, case, or statutory provision, briefly and accurately.
- Apply to the facts: explain why the facts do or don’t satisfy the rule — this is where most marks sit, not in restating the rule.
- Give a conclusion/advice: a direct answer (“the writ of mandamus is appropriate because…”, “the amendment would likely be struck down because…”).
Last Updated on 5 hours ago by Asiful Haque
