Title: The Constitution of the People's Republic of Bangladesh - Part VI
PART VI: THE JUDICIARY
59[Chapter I: The Supreme Court
Art. 94.- Establishment of Supreme Court
(1) There shall be a Supreme Court for Bangladesh (to be Known as the Supreme Court of Bangladesh) comprising the Appeallate Division and the High Court Division.
(2) The Supreme Court shall consist of the Chief Justice, to be known as the Chief Justice of Bangladesh, and such number of other Judges as the President may deem it necessary to appoint to each division.
(3) The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division, and the other Judges shall sit only in the High Court Division.
(4) Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.
Art. 95.- Appointment of Judges
(1) The Chief Justice and other Judges shall be appointed by the President.
(2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and-
(a) has, for not less than ten years, been a advocate of the Supreme Court; or
(b) has, for not less than ten years, helf judicial office in the territory of Bangladesh; or
(c) has such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court.
(3) In this articles, "Supreme Court" includes 'a Court which at any time before the commencement of the Second Proclamation (Tenth Amendment) Order, 1977, exercised jurisdiction as a High Court or Supreme Court in the territory now forming part of Bangladesh.
Art. 96.- Tenure of office of Judges
(1) Subject to the other provisions of this article, a Judge shall hold office until he attains the age of 60[sixty-five] years.
(2) A Judge shall not be removed from office except in accordance with the following provisions of this article.
(3) There shall be a Supreme Judicial Council, in this article referred to as the council, which shall consist of the Chief Justice of Bangladesh, and the two next senior Judges:
Provided that if, at any time, the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or other cause, the Judge who is next in seniority to those who are members of the Council shall act as such member.
(4) The function of the Council shall be-
(a) to prescribe a Code of Conduct to be observed by the Judges; and
(b) to inquire into the capacity or conduct of a Judge or of any other functionary who is not removable from office except in like manner as a Judge.
(5) Where, upon any information received from the Council or from any other source, the President has reason to apprehend that a Judge-
(a) may have ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity, or
(b) may have been guilty of gross misconduct, the President may direct the Council to inquire into the matter and report its finding.
(6) If, after making the inquiry, the Council reports to the President that in its opinion the Judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct, the President shall, by order, remove the Judge from office.
(7) For the purpose of an inquiry this article, the Council shall regulate its procedure and shall have, in respect of issue and execution of processes, the same power as the Supreme Court.
(8) A Judge may resign his office by writing under his hand addressed to the President.
Art. 97.- Temporary appointment of Chief Justice
If the office of the Chief Justice becomes vacant, or if the President is satisfied that the Chief Justice is, on account of absence, illness, or any other cause, unable to perform the functions of his office, those functions shall, until some other person has entered upon that office, or until the Chief Justice has resumed his duties, as the case may be, be performed by the next most senior Judge of the Appellate Division.
Art. 98.- Additional Supreme Court Judges
Notwithstanding the provisions of article 94, if the President is satisfied that the number of the Judge of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified person to be Additional Judges of that division for such period not exceeding two years as he may specify, or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period as an ad hoc Judge and such Judge while so sitting shall exercise the same jurisdiction, powers and functions as a Judge of the Appellate Division.
Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for a further period under this article.
Art. 99.- Disabilities of Judges
(1) Except as provided in clause (2), a person who has held office as a Judge otherwise than as an Additional Judge shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any office or profit in the service of the Republic not being a judicial or quasi-judicial office 60a[or the office of Chief Adviser or Adviser].
(2) A person who has held office as a Judge of the High Court Division may, after his retirement or removal therefrom, plead or act before the Appellate Division.
61Art. 100.- Seat of Supreme Court
The permanent seat of the Supreme Court, shall be in the capital, but sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint.
Article 100 as amended by the said Act runs thus:
"100. Seat of Surpreme Court:
(1) Subject to this article, the permanent seat of the Supreme Court shall be in the capital.
(2) The High Court Division and the Judges thereo shall sit at the permanent seat of the Supreme Court and at the seats of its permanent Benches.
(3) The High Court Division shall have a permanent Bench each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet, and each permanent Bench shall have such Benches as the Chief Justice may determine from time to time.
(4) A permanent Bench shall consist of such number of Judges of the High Court Division as the Chief Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the Judges shall be deemed to have been transferred to that Bench.
(5) The President shall, in consultation with the Chief Justice, assign the area in relation to which each permanent Bench shall have jurisdictions, powers and functions conferred or that may be conferred on the High Court Division by this Constitution or any other law; and the area not so assigned shall be the area in relation to which the HighCourt Division sitting at the permanent seat of the Supreme Court Shall have such jurisdictions, powers and functions.
(6) The Chef Justice shall make rules to provide for all incidental, supplenental or consequential matters relating to the permanent Benches."
Art. 101.- Jurisdiction of High Court Division
The High Court Division shall have such original, appeallate and other jurisdictions, powers and functions as are or may be conferred on it by this Constitution or any other law.
Art. 102.- Powers of High Court Division to issue certain orders and directions, etc.
(1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution.
(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law:
(a) on the application of any person aggrieved, make an order:
(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or
(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order:
(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office to show under whatauthority he claims to hold that office.
(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.
(4) Whereon an application made under clause (1) or sub-clause (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of:
(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work; or
(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an advocate authorised by him in that behalf) has been given an opportunity or being heard, and the High Court Division is satisfied that the interim order would not have the effect refered to in sub-clause (a) or sub-clause (b).
(5) In this article, unless the context otherwise requires, "person" includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.
Art. 103.- Jurisdiction of Appellate Division
(1) The Appellate Division shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division.
(2) An appeal to the Appeallate Division from a judgment, decree, order or sentence of the High Court Division shall lie as of right where the High Court Division-
(3) An appeal to the Appellate Division for a judgment, decree, order or sentence of the High Court Division in a case to which clause (2) does not apply shall lie only if the Appellate Division grants leave to appeal.
(4) Parliament may by law declare that the provisions of this article shall apply in relation to any other court or tribunal as they apply in relation to the High Court Division.
Art. 104.- Issue and ececution of processis of Appellate Division
The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance or any person or the discovery or production of any document.
Art. 105.- Review of Judgments or orders by Appellate Division
The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that division to review any judgment pronounced or order made by it.
Art. 106.- Advisory jurisdictionof Supreme Court
If at any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to the Appellate Division for consideration and the division may, after such hearing as it thinks fit, report its opinion thereon to the President.
Art. 107.- Rule making power of the Supreme Court
(1) Subject to any law made by Parliament the Supreme Court may, with the approval of the President, make rules for regulating the practice and procedure of each division of the Supreme Court and of any court subordinate to it.
(2) The Supreme Court may delegate any of its functions under clause (1) and article 113 to a division of that Court or to one or more Judges.
(3) Subject to any rules made under this article the Chief Justice shall determine which Judge are to constitute any Bench of a division of the Supreme Court 63* * * * * and which Judges are to sit for any purpose.
(4) The Chief Justice may authorise the next most senior-Judge of either Division of the Supreme Court to exercise in that division any of the powers conferred by clause (3) or by rules made under this article.
Art. 108.- Supreme Court as court of record
The Supreme Court shall be a court of record and shall have all the powers of such a court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself.
Art. 109.- Superintendence and control over courts
The High Court shall have superintendence and control over all courts 64[and tribunals] subordinate to it.
Art. 110.- Transfer of cases from subordinate courts to High Court Division
If the High Court Division is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, or on a point of general public importance, the determination of which in necessary for the disposal of the case, it shall withdraw the case from that court and may-
(a) either dispose of the case itself; or
(b) determine the question of law and return the case to the court from which it has been so withdrawn (or transfer it to another subordinate court) together with a copy of the judgement of the division on such question, and the court to which the case is so returned or trnasferred shall, on receipt thereof, proceed to dispose of the case in conformity with such judgement.
Art. 111.- Binding effect of Supreme Court judgments
The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.
Art. 112.- Action in aid of Supreme Court
All authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court.
Art. 113.- Staff of Supreme Court
(1) Appointments of the staff of the Supreme Court shall be made by the Chief Justice or such other judge or officer of that Court as he may direct, and shall be made in accordance with rules made with the previous approval of the President by the Supreme Court.
(2) Subject to the provisions of any Act of Parliament the conditions of service of members of the staff of the Supreme Court shall be such as may be prescribed by rules made by that court.
Chapter II: Subordinate Courts
Art. 114.- Establishment of subordinate courts
There shall be in addition to the Supreme Court 65* * such courts subordinate thereto as may be established by law.
66[Art. 115.- Appointments to subordinate courts
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.]
Art. 116.- Control and discipline of subordinate courts
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 67[President] 68[and shall be exercised by him in consultation with the Supreme Court].
69[Art. 116A.- Judicial officers to be independent in the exercise of their functions
Subject to the provisions of the Constitution, all persons employed in the judical service and all magistrates shall be independent in the exercise of their judicial functions.]
Art. 117.- Administrative tribunals
(1) Notwithstanding anything hereinbefore contained, Parliament may be law establish one or more administrative tribunals to exercise jurisdiction in respect of matter relating to or arising out of-
(2) Where any administrative tribunal is established under this article, no court shall entertain any proceedings or make any order in respect of any matter falling within the jurisdiction of such tribunal:
71 * * * * *
(59) Chapter I was substituted for the former Chapters I, IA and IB by the Second Proclamation Order No. I of 1977 (w.e.f. 1-12-1977).
(60) The word "sixty-five" was substituted for the word "sixty-two'' by the Constitution (Seventh Amendment) Act, 1986 (Act I of 1986), s.2.
(60a) The words "or the office of Chief Adviser of Adviser" were inserted by the Constitution (Thirteenth Amendment) Act, 1996 (Act I of 1996), s.5.
(61) Original article 100 has been revived as the impugnedamendment of article 100 made by the Constitution (Eighth Amendment) Act, 1988 (Act XXX of 1988) held ultravires and declared invalid by the Hon'ble Court [B.C.R. 1989 (A.D.), Vol. IX].
Article 100 as amended by the said Act runs thus:
"100. Seat of Supreme Court.-
(1) Subject to this article, the permanent seat of the Supreme Court shall be in the capital.
(2) The High Court Division and the Judges thereof shall sit at the permanent seat of the Supreme Court and at the seats of its permanent Benches.
(3) The High Court Division shall have a permanent Bench each at Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet, and each permanent Bench shall have such Benches as the Chief Justice may determine from time to time.
(4) A permanent Bench shall consist of such number of Judges of the High Court Division as the Chief Justice may deem it necessary to nominate to that Bench from time to time and on such nomination the Judges shall be deemed to have been transferred to that Banch.
(5) The President shall, in consultation with the Chief Justice, assign the area in relation to which each permanent Bench shall have jurisdictions, powers and functions conferred or that may be conferred on the High Court Division by this Constitution or any other law; and the area not so assigned shall be the area in relation to which the High Court Division sitting at the permanent seat of the Supreme Court shall have such jurisdictins, powers and functions.
(6) The Chief Justice shall make rules to provide for all incidental, supplemental or consequential matters relating to the permanent Benches."
(62) The word "imprisonment" was substituted for the word "transportation" by the Constitution (Eighth Amendment) Act, 1988 (Act XXX of 1988), s.8.
(63) The words, brackets and figures "or any Bench of a permanent Bench of the High Court Division referred to in clause (3) of article 100" inserted by the Constitution (Eighth Amendment) Act, 1988 (XXX of 1988), omitted in consequence of the amendment of article 100 by the said Act being declared invailed and held ultervires by the Hon'ble Court [B.C.R., 1989 (A.D.), Vol IX]
(64) The words "and tribunals" were inserted by the Constitution (Twelfth Amendment) Act, 1991 (Act XXVIII of 1991), s.11 (w.e.f. 18-9-91).
(65) The words "and the High Court" were omitted by the Second Proclamation Order No. 1 of 1977.
(66) Article 115 was substituted for the formal article 115 by the Constitution (Forth Amendment) Act, 1975 (Act II of 1975), s.19.
(67) The word "President" was substituted for the words "Supreme Court" ibid, s.20.
(68) The words "and shall be exercised by him in consultation with the Supreme Court" were inserted by the Second Proclamation Order No. IV of 1978.
(69) Article 116A was inserted by the Constitution (Fourth Amendment) Act, 1975 (Act II of 1975) s.21.
(70) Sub-clause (c) was substituted for the former sub-clause (c) by the Second Proclamation order No. 1 of 1977.
(71) "PART VIA-THE NATIONAL PARTY" omitted by the Proclamation, dated the 8th November, 1975.
