The document discusses judicial reforms in Bangladesh, focusing on the separation of the judiciary from the executive, the impact of the Masdar Hossain case, and the need for further reforms in the criminal justice system. It highlights essential principles of criminal law, the structure of the judicial system, and historical changes, including significant rulings that reinforce judicial independence. The lecture concludes by addressing the ongoing issues within the police and upcoming discussions related to policing in the context of criminal justice.

1. Lecture-3
• Judicial Reforms, Separation of Judiciary and its impact on our
criminal justice system.
Prepared by Showkat Hossain,
Additional District Judge.

2. This topic shall include the Masder Hossain case and its aftermath, mobile courts, dual administration for the
courts, de-facto control of the government, what further reforms are necessary? (budget and etc.)

3. From the previous lecture ( Basic principles of
Criminal Law
• Benefit of doubt goes in favor of the accused
• The doubt must be reasonable
• Because the standard of proof is absolute on part of the prosecution
• Absolute standard vs preponderence of evidences in civil cases.

4. Basic Principles continued
• No time limitations for criminal offences except otherwise provided (negotiable
instrument act)
• No jury system in our country ( The system,The reasons)
• Doubt on police ( Produced in 24 hours, confession to police is no evidence, statement
to police is no evidence, no signatures required to the statement of the police, even at
the presence of the police )
• The 164 forms ( explain that I am not a police) , the reasons behind this ( the tiger and
deer, our investigations are mostly 164 based,
• Article 35 (4)- No person accused of any offence shall be compelled to be a witness
against himself. ( right against self incrimination)
• Article 35( 5) No person shall be subjected to torture or to cruel , inhuman or
degrading punishment.

5. Basic principles continued
• Abettor ( whoever aids) will receive the same punishment like the
principal accused.
• Conspirator will receive the same punishment.
• When a Criminal act is done by several persons , in furtherance of the
common intention of all – everyone will be equally liable as if the act
was done by him alone . Section 34 of the penal code.

6. Basic principles continued
• Things done in private defence. However this right is a defensive one, not an excuse for offence. Self
defence must be proportionate to what is necessary, the right commence when the apprehensions
start and continues as long as such apprehension continues.
• Act of judge when acting judicially
• Act done by mistake of fact believing was justified by law
• Accident in doing a lawful act
• Act likely to cause harm but done without criminal intent and to prevent other harm
• Act of child under 9 years of age
• Act of a person of unsound mind
• When the person is intoxicated against his will
• Act done ( in good faith) with or without consent for the benefit of a person
• Act done under threat
• Act causes slight harm

7. Principles of natural justice
• Natural justice principles applies to all human being across the universe
• Audi alterum partem ( No man shall be punished/ condemned
unheard)
• This principle is considered sacred and originated in the garden of eden
• Judges of the common law shall supply the omission of the legislator.
• Nemo judex in causa sua ( no one can be the judge of his own cause ) ,
that’s why judges sometimes feel embarrassed, that’s why mobile
courts are inherently against the principle of natural justice .

8. Lecture 3 started.
The system that prevailed since the British Period
• Every criminal proceeding have two parts namely the investigation and
the trial .
• The actual trial commenced after the charge is being framed.
• Prior to the that the record remain to the Magistrate. After the
investigation is done, the record is prepared for trial.
• The magistrates were members of the BCS administration cadre.
• Only the serious Cases were transferred to the Session Judges/ Judges.
• The system was reorganized by Bangladesh Civil Service (reorganization)
Order 1980.

9. The framework of the constitution.
• The republic , basic principles, fundamental rights, the executive , the
legislature, the judiciary ( chapter 1 & 2) , elections, cag, service of
the republic, emergency , amendment, miscellaneous.
• Article 22 of the constitution- The State shall ensure the separation of
the judiciary from the executive organs of the State.
• 109. The High Court Division shall have superintendence and control
over all courts and tribunals subordinate to it.
• 115. Appointments of persons to offices in the judicial service or as
magistrates exercising judicial functions shall be made by the
President in accordance with rules made by him in that behalf.]

10. Continued
• 116. The control (including the power of posting, promotion and grant
of leave) and discipline of persons employed in the judicial service
and magistrates exercising judicial functions shall vest in the President
and shall be exercised by him in consultation with the Supreme Court
• 116A. Subject to provisions of the Constitution, all persons employed
in the judicial service and all magistrates shall be independent in the
exercise of their judicial functions.

11. The famous Masdar Hossain Case
• They were given an extra pay scale which was later cancelled
• The official name of the case is Secretary, Ministry of Finance vs Masdar Hossain
• In 1995, 441 judicial officers filed a writ petition ( 2424 of 1995) claiming that
inclusion of judicial service under the BCS order 1980 is ultra vires the
constitution.
• The parliament is bound to frame rules under article 115 of the constitution.
• The High Court Division delivered its historic judgment on 7th may 1997
• Government preferred appeal . The AD delivered its judgment on 2nd december
1999

12. Twelve directive points of the judgment in a nutshell
• The judiciary is functionally and structurally distinct and separate from the
Civil Executive and Administrative Service of the Republic.
• It is the President who under Article 115 of the Constitution can create and
establish a Judicial Service and also a Magistracy exercising judicial
functions, and can make rules in respect of recruitment, pre-appointment,
suspension and dismissal.
• Inclusion of BCS (Judicial) Cadre along with other BCS Executive and
Administrative Cadres is Ultra Vires the Constitution.
• A new Judicial Service Commission shall be established comprising majority
members from the senior and subordinate judiciary for recruitment on
merit and with the objective of ensuring equality between men and women.

13. Continued
• Separate rules concerning posting, promotion, grant of leave,
discipline, pay, allowance, pension terms and conditions of the service
in consistent with 116 and 116(A) be made separately for Judicial
Service and Magistrates exercising judicial functions.
• A separate Judicial Pay Commission shall be established under Article
115 to review the pay, allowance and privileges of the judicial service.
• The views and opinion of the Supreme Court shall have primacy over
those of the executive in respect of exercising control and discipline of
persons in the Judicial Service and Magistrates exercising judicial
functions.

14. Continued
• To ensure judicial independence, rules shall be made under Article
133 of the Constitution or by the executive orders for ensuring
security of tenure; security of pension, salary and other benefits; and
institutional independence.
• The Supreme court shall not require government’s approval to incur
any expenditure on any item from the funds allocated to the Supreme
Court in their Annual Budget.
• Members of the Judicial Service are within the jurisdiction of the
Administrative Tribunal.

15. Continued
• If the Parliament so wishes, it can amend the Constitution of
Bangladesh to make the Separation of Judiciary more meaningful,
pronounced, effective and complete.
• Until the Judicial Pay Commission gives its recommendation, the
salary of the judges in the Judicial Service will continue to be
governed by the order dated 08.01.19994. If pay increases, the
judicial officers will get the increased payment, etc., commensurate
with their special status in the Constitution.

16. Progress so far
• The then BNP government-
• Caretaker government – the actual separation. 1st
November 2007
• Bangladesh judicial service commission rules, Bangladesh judicial service pay
commission rules, Bangladesh judicial service commission ( constitution of service,
appointment, suspension, removal and dismissal from the service) rules 2007,
Bangladesh judicial service posting, promotion, grant of leave, control discipline and
other condition rules 2007. Reaction from the administration cadre and the mobile
court ordinance.
• Awamileague government – the ordinance was passed by the parliament
• Judicial service pay commission.
• Disciplinary rules
• The de-facto dual administration

17. What to do
• A secretariate for the supreme court
• The budget
• A storm reformation.
• The mobile court

18. • The next lecture will be on police and policing .
• This lecture shall include History of policing, the evolution of policing,
role of police in criminal justice system, types of police, approach to
policing – whether they are law enforcer or law and order maintainer,
Reforms needed in police accountability, custodial death and custodial
torture, blast vs Bangladesh case, remand, focus and incentives,
investigation.

19. Meanwhile, last week in Bangladesh
• https://youtu.be/Iv9wxsxcY1o
• https://youtu.be/Uu-y8FMeyWo
• Woman died in RAB custody, family members allege
torture
• Prothom Alo reporter arrested, editor sued under DSA
• Mahiya Mahi arrested in DSA case; sent to jail for
'defaming police’, got bail at the evening

24. This week’s watch
• My cousin vinni
• Any question ?