Verification On an Opposite Practical Criminal Justice – Bangladesh Perspective (Comparative Criminal Justice System Analysis)

- Md. Tajul Islam

criminal-justice

Published On - October 24, 2016 [Vol. 5, Jul - Dec, 2016]

Abstract

This paper promotes liberal democracy in Criminal Justice System (CJS) in Bangladesh that deviates from the colonial hegemony. It attempts to make a critical analysis of the existing discipline and punishment apparatus in the CJS and prescribes some timely reforms in police, courts and correction. We believe, our recommendations advocate for social equality and justice and uphold human rights. This argument also focused on the necessity to internalize law and order in a society through an active participation of both CJS agencies as well as the public. Along with that, we stressed on the benefits of a Liberal Criminal Justice System which can bring many favorable outcomes like making Criminal Justice system more people oriented, winning public confidence on CJS as well as reduce State’s expenditure on CJS. However, we do not encourage the policy makers to follow any model being blindfolded, rather we establish that any model of CJS needs to be cross examined based on the environment of the very society where the system shall be integrated.

Introduction:

Talking about justice system in a society readily involves how a basic functionary of the system works and what its framework is. No system is devoid of problem, no exception occurs in the case of Criminal Justice System (CJS). It has been argued by different scholars that the present mode of Criminal Justice in Bangladesh is a legacy of the British colonial system. Imperial philosophy of the then authority developed a repressive mechanism, which externally tried to maintain public order and resolving disputes by making codified (yet, alien) law. This led them to forming an authoritative agency of police and punitive judiciary. It was an imposition on the local colonized people because it was hardly adopted by them. As a result, without a broad community support, the Criminal Justice System at that time was only able to punish the “criminals”. But it remained with enough doubt that whether the CJS was effective to control crime or deviant behaviors. This gap between people and legal and justice system has snowballed over the centuries and now has brought us in today’s anarchic situation where people no more have any confidence in any of the criminal justice institutions – police, courts and correction ( in this context, prison).

For a better understanding, we now try to pin down the problems of existing CJS; then in the second phase, we shall bring new models of CJS and following that, some recommendations are included in the last chapter.

Chapter: 1

Problems of our Criminal Justice System

Our traditional criminal justice system has lot to overcome. Let us say, the existing Criminal Codes and Procedures in Bangladesh were derived from the period of British rule, as amended by Pakistan and Bangladesh. Similarly, the basic documents such as the Bangladesh Penal Code, first promulgated in 1860 as the Indian Penal Code; The Police Act of 1861; The Evidence Act of 1872; the Code of Criminal Procedure of 1898; the Criminal Law Amendment Act of 1908; and the Official Secrets Act of 1911, Bengal Jail Code of 1864, the Muslim Personal Law (Shariat) Application Act, 1937 relating to Muslim Family Affairs are still in operation in Bangladesh. Reforms in the criminal justice system nowadays become a substance of frequent debate and review. The criminal codes and procedures in effect in Bangladesh derive from the period of British rule, as amended by Pakistan and Bangladesh. These key legislations regarding the criminal justice system of Bangladesh include the Penal Code, first promulgated in 1860 as the Indian Penal Code; the Police Act of 1861; the Evidence Act of 1872; the Code of Criminal Procedure of 1898; the Criminal Law Amendment Act of 1908; Evidence Act and the Official Secrets Act of 1911. Let us now chronologically consider the problems in our CJS:

a. Traditional Criminal Justice System: We are still far away to amend our traditional judicial system. Though we were the British colony with other countries of Indian Sub continent but we are still follower of the same laws which were the reflection of British colony. Our Judicial system is very much inconsistent with the needs of present day. So we should consider the matter that modern State policy always faces new trends of criminality and new mode of criminal activity.

b. Politicization of Criminal Justice Agencies: Political control of criminal justice agencies especially the police institution and lower courts remains a major problem in Bangladesh. In Bangladesh police institutions are not autonomous. Instead, the State exercises strong control over police agencies. As a consequence many policy decisions regarding police are instigated for political purposes. Evidence suggests that politicians even influence preparation of charge sheets and final reports; as a result “fall out” rate of arrest is high. Similarly, the influence on the politics on the judiciary has accelerated in recent years. There are many instances where the Judges of the Supreme Court are being appointed on the basis of their political affiliation. Also, the Judges of few cases have generated wide political controversy. For example, the change in the retirement age and the appointment of the judges of the Supreme Court ignoring seniority has created an opportunity for politically motivated appointments.[1] Research suggests that political influence, patronization and victimization are main problems for the police force and that must be stopped in order to ensure efficient services from the government.

c. Transformation in the Justice System: Evidence suggests that in Bangladesh, the higher level of Judiciary displayed a significant degree of independence and often ruled against the government in criminal, civil and even politically controversial cases. However, there have been allegations against these offenders because of a dysfunctional legal system and other extra legal system.[2]

d. Crime Control Politics: Enactment of Various anti-crime legislations: In response to growing crime rates many Western countries have increased the costs of crime by raising penalties (e.g. “three strikes law” in California, U S A)[3]. In Bangladesh, sentences are not harsh enough for most of the offenders who are responsible for the vast majority of crimes. It is learnt that if these groups of offenders could be arrested and adjudicated, crime rates would substantially decrease. Given their linkage with ruling parties and the absence of fairness on the part of the police in most of the cases, police are unable to arrest them. In addition to that, even if these offenders are arrested, prosecution fails to win conviction against these offenders because of a dysfunctional legal system and other extra-legal factors.[4] However, to combat the increasing rate of crimes, the successive government in Bangladesh has passed a number of anti- crime legislations. It has been observed that every elected government in Bangladesh, which enacted various anti-crime laws, were found guilty in the latest investigation. According to the CID report, investigators obtained confessional statements using force as per the desire of the past government laws in order to combating crime and terrorism (The daily Star, June 12, 2008).

e. Crime Control and Human Rights: There have been allegations that two specific laws that facilitate endemic human rights violations in Bangladesh: I) the Special Powers Act, 1974 (SPA); II) Section 54 of the Code of Criminal Procedure, 1898; Political parties have repeatedly promised to repeal the law when in opposition, but the law has been maintained so far. Each year, thousands of people are arbitrarily detained under SPA, which deny them access to judicial remedies.

f. Role and organization of Bangladesh Police: The police in Bangladesh are a centralized national force. The ministry of Home Affairs controls its functions while the operational responsibilities are vested in Police Headquarters. Inspector General is the chief executive of the police departments. Bangladesh Police follow the British police system of colonial era with some modifications. During the British rule the police were a repressive institution and their main purpose was to serve the interest of ruling class.

g. Problems of the Court system: A major problem of the court system was the overwhelming backlog of cases. As a result many accused persons remained in prison for many years. It has been observed that the corruption encountered in the judicial process, effectively prevented many persons from obtaining a fair trial. A survey of the world Bank 2005 found that the performance of judiciary is the worst among the participating countries in the survey. The average duration of civil case in the district court in Bangladesh on an average takes nearly five years to resolve excluding the time taken for appeal process. In some cases it is more than 15 to 20 years from filing in the trial court to decision by the appeal court.

h. Prosecution: Disposable Prosecutorial Service: Bangladesh does not have a permanent prosecution service. The attorney General is the principal law officer of the government. They represent the State in Supreme Court and conduct cases at courts on behalf of the State. On the other hand, at the sub-ordinate courts the prosecution wing consists of Public Prosecutor (PP), Government Pleader (GP) and Special Public Prosecutor (SPP). All these law officers are accompanied by assistants, whose numbers vary depending on the numbers of courts they must cover, and the size and population of the district. They represent the State in the sub-ordinate civil and criminal courts in the district and conduct cases in these courts on behalf of the State. All these law officers are appointed on the basis of their political affiliations. That is, recruitment process is based on the political choice of the ruling political party. As a result whenever a new political party has taken over government, all prosecutors have been removed from their offices and new group has replaced them.

i. Problems of Criminal Investigation: The most common preliminary step in seeking justice in Bangladesh is to lodge a complaint either with a police station or Magistrate’s court in the jurisdiction where the offense allegedly occurred. Complaints lodged with police are referred to as GR cases; those on the Government Register. However, in many cases lodging complaints with police stations is difficult for the poor and politically weak, especially if the complaints relate to wealthy and politically connected persons. Such cases are identified as CR cases i.e. those on the complaint register. In either type of cases police investigate, collect evidence and take necessary steps. It has been argued that successful prosecution of criminal cases requires a thorough and professional police investigation. But experience show that in our country police are highly biased while they are conducting investigation.

Chapter: 2

Towards a Liberal Democratic Model

Before an institutional reformation of the criminal justice towards a modern day system, a total ideological shift is required in order to achieve the desired change. The ideology must not only be free from colonial hegemony; rather, it should ensure social equality and justice and uphold human rights. Nevertheless, in the long run, the ideological change can be fruitful in the presence of political motivation, an agenda for law and order, procedural fairness in the system and an incorporation of an oriental mechanism of social control. A Liberal Criminal Justice System can bring many favorable outcomes like making Criminal Justice a people oriented system, winning public confidence on CJS as well as reduce State’s expenditure on CJS. To start with, we need to change our authoritarian model of Criminal Justice System that necessarily relies on a stricter law enforcement-punishment apparatus. Hung-En-Sung (2006)[5] suggests that such authoritarian Criminal Justice System only justifies higher rates of arrest, prosecution, conviction and incarceration as a way of order maintenance. But through the democratization of modern states, a liberal model of Criminal Justice is being embraced in today’s world which seeks justice ‘as the defense of civil liberties through the due process of law’. (p. 311) According to Hung-En-Sung, the differences between systems of Criminal Justice lie in the political soil, patterns of power distribution and the shared beliefs about government. All these determine the character of Criminal Justice System in a society. In his research, Sung documented a close connection between higher degrees of democratic achievement and the development of resourceful Criminal Justice System. Liberal democracies, in his view, can assert limits on state power through ‘legal restrictions against unreasonable searches and seizure, respect for habeas corpus, the right to legal counsel and prohibition of illegal detention, torture and cruel punishment.’ (p.315) But he assures (referring to Burnhum, 1980) that liberal democracy also encourages growth of Criminal Justice manpower with more judges in the courts, more police officers and more correctional personnel who serve diversified societal functions like ‘crime prevention, punishment and rehabilitation of offenders, protection of human rights, etc. (p.327-8). However, in more democratic societies, it is seen that increased personnel in the courts ‘convicted fewer prosecuted defendants, and employed more sanctions (like community sentencing) other than imprisonment and/or shorter prison sentences.’ (p.327). This obviously reduces pressure from the overloaded judiciary of a country and serves a dual purpose of compensating for both the victim and the society. It is not abnormal that the liberal model of Criminal Justice System is majorly confronted by the conservative politicians whose priority is to maintain law and order. This is exactly the case for Bangladesh where incarceration is perceived to be effective to make the society safer and deter any future offenders. Swayed by this view, conservative governments increase the 10 expenditure of police service – rising numbers of police officers, resources for improved equipments etc. and above all, major increases in police’s salaries remain constant concern for them. They also enact laws that results in generalized custodial sentences by the courts. Both these strategies are expensive considering our socio-economic context. Savage and Nash (1994) reviews British Criminal Justice policy which is characterized by its conservativeness, yet provides many alternative penal sanctions like “punishment in the community”; reduction of the use of custody; “parental fines” in case of juvenile offenders and measures like “short sharp shock” – a brief but toughened up detention in penal establishments. British Criminal Justice Act 1991 was an outcome of the policy that provided severe punishment for some offenders (for sexual and violent crimes) while extending and encouraging non-custodial and diversionary measures for others (property offenders).[6] All these strategies were driven by the financial constraints of limited public expenditure of the British government. But it also required political and ideological shift in the policies as well as increased number in trained personnel in all three major institutions of the Criminal Justice System in UK.

The Liberal model at times may appear as a failure to win public confidence on Criminal Justice as people feel crime is increasing since criminals are not punished severely enough. A liberal democratic system is often misunderstood or propagated as not being able to act congruently with the aim of reducing crime and punishing the guilt. Factors that most likely influence confidence in Criminal Justice System included ‘”more police on the streets, “tougher sentencing”, “offenders serving the full sentences” and “consistency in sentencing”[7]’ However, such hypotheses are proved otherwise in a recent research work by Bradford (2011). The liberal model advocates ‘due process of law’ that follows procedural fairness in the justice system. Procedural fairness communicates to people that the Criminal Justice authority(s) shares with them a similar framework of values and morals.[8] Also ‘the experience of procedural justice is marked and demonstrated by transparency, fair, equitable and respectful treatment, following correct procedure, and a feeling of control over the processes through which people interact with authorities’ (Bradford, 2011, p.348). Bradford’s work suggests that public contact with authorities (primarily police and courts) following procedural fairness play vital role in building satisfaction and confidence in the effectiveness of the overall Criminal Justice System. So, improving the way police and other legal authorities deal with the public can lead us to the desirable outcomes of a liberal CJS model. Such liberal model also entails crime reduction and control strategies through social control mechanism. In the West, many democratic countries like USA and UK accomplish social control through the use of law. Along with that they have many other technological crime control strategies. The strategy of “situational crime control” through environmentally based measures like improved security of premises, surveillance in public places and improved design of buildings to eradicate concealed entrances are good examples of “target hardening”. (Savage and Nash, 1994) However, the maintenance of such mechanism to control a vast population of Bangladesh may not be impossible but the cost would be a deterrent. In contrast to this technological control mechanism, G. Frederick Allen (1987) seeks for an “internal model” of social control in the oriental tradition.[9] In the East, through the intervention of religion(s), ‘greater emphasis is [placed] on discipline, self control, moderation, and detachment from the modern world.’ (Ibid, p.102) ‘Conformity to proper modes of conduct are not obtained through official sanction, but from a genuine understanding and acceptance of the rules.’ (Ibid.) This model is internalized through an early and on-going educational process undertaken by various social institutions (family, school, culture and above all, religion). Since, law cannot gain broad community support without the active involvement of these social institutions, Allen calls for a coexistence of both internal and external mechanism of social control in order to prevent crime.

Chapter: 3

Some Insights from Chinese Criminal Justice System[10]

Now, if we are to think of some feasible implementation of reforms in our CJS, China can be a role model for us. Some special characteristics of Chinese Criminal Justice System can be reviewed for this argument. Focusing on the police, courts, and corrections we are trying to highlight the two models of Chinese Criminal Justice System – a. The External Model; and b. The Internal Model.

The External Model: The use of law to accomplish social control is called ‘external model’ since it is based on the establishment of formal set of rules and procedures and the use of external mechanisms. Law can be perceived as government sponsored social control. It deals with a set of social arrangements involving legislation and litigation within a formal context. The adoption of an external model provides many advantages for the Chinese. Some of the advantages are: it makes the Chinese system more recognizable, more acceptable to others, provides a clear and rationalized system, and is helpful in maintaining a degree of public order. Such official law however, is not only the social control agency of the society. Considering China’s commitment to modernization and change, formal law can be used to publicize and enforce new social policies as well monitoring their implementation and the response to these policies. Social control is found wherever and whenever people hold each other to certain standards. Thus, the church, family, school, tradition, ethics, culture, habit and manners –to name a few- are controls which affect and determine how the individual behaves.

The Internal Model: Existing parallel to the formal system is China’s traditional informal system of social control. This system is different from the systems of other countries in some cases. Conformity to proper modes of conduct are not obtained through fear of official sanction, but from a genuine understanding and acceptance of the rules. For convenience, this model will be called the internal model since it is based on internal dynamics. In this model, the proper modes of conduct are internalized through an early and on-going educational process, whereby, each person learns and accepts common values and norms. This model is consistent with the Chinese traditional concept that persuasion and education are more powerful than force. Dramatized throughout the Chinese correctional program is the belief that the individual who is capable of understanding, can be reasoned with and can be guided toward positive ends. The Chinese have a strong belief that internalizing rules of conduct to the point where the individual will conform to accepted behavior because of a moral persuasion rather than because of the fear of punishment. Therefore, it is believed to be more effective policy. The Chinese believed that the law should be kept simple so that the masses are able to understand and use the law effectively. The fundamentals of internal model are stronger in Chinese Criminal justice system. This could be seen by viewing the police, the courts, and the correctional program.

The Police:

The department is responsible for six main tasks:

Registration: All Chinese must register with the census police officer. Before moving authorization must be obtained from the authorities, and on arrival of the new destination each Chinese must register with the police.

Education: The police play an important role in educating people about the social/ legal system. They inform citizens concerning laws and regulations, encourage them to abide by the law and help to educate others to do likewise. The police accomplish these tasks with the help of neighborhood committees in this jurisdiction. The police distribute literature and materials to these committees which help to educate the people.

Supervision of Volunteer Workers: The department uses part-time workers to assist with security at night. Usually, these volunteers will work for one year, then they are replaced by another worker. Retired worker are used to assist the police.

Investigation: A prime responsibility of the police is the investigation of suspected counter revolutionaries. Besides finding, investigating, and preventing crimes in the jurisdiction, the department assists the Public Security Bureau in locating active counter –revolutionary criminals.

Crime Prevention: Others are active in stopping and preventing criminal action, helping in the education, and rehabilitation of the criminal element. The police are actively involved with family and society to help educate criminals after their release from the custody. The police are responsible for maintaining social order.

General Assistance: The police are available for assistance and prevention of natural disasters.

The Courts:

Courts in China are divided in four levels: The Supreme People’s Court and the Local People courts. The local people’s courts have three levels: Higher People’s Court, Intermediate People’s Court, and District People’s Court. In these courts, civil, criminal and general offense matters are handled. A defendant may defend himself with or without the assistance of an attorney. Defendants may ask relatives or friends to represent them with permission of the court. This is usually when the defendant is disabled, deaf, or mute. According to the law, the criminal investigation period is one and a half months. In China, there is a collegial panel of one judge and two citizens. The opinion of the majority prevails. This process increases the involvement of the community, it bridges the gap between the community and the courts and it potentially could reduce disparity in sentencing.

The Correctional Program:

The purpose of the legal system of China is not simply to apply punishments to criminals and to make them pay for their crimes. Rather the goal is to reform offenders mainly labor and ideological education. This is based on a strong faith in rehabilitation and the basic belief that successful rehabilitation potentially leads to the restoration of harmony in the social order. The Chinese have their clear penal policy to reform their prisoners by various ways to make correction for the suitability of society.

Some measures to be taken considering with the Chinese Criminal Justice System:

There are some characteristics of Chinese criminal justice system which are to be applicable for Bangladeshi Criminal Justice System:

a. Young assistance Wing: There has been a “Young Assistance Wing” which is formed with the young generation from the whole country to assist the police or law enforcing authority. Because it is believed that young generation normally are honest and sincere in their duty and responsibility.

b. Law enforcing authority should properly be trained to become humanitarian to perform their duties and responsibilities for the greater interest of the people.

c. “Community involvement” of the prisoner may help them to become civilized.

d. We may apply the “reform through labor” policy of Chinese criminal justice in our country.

e. “Vocational Training Course” may be introduced among the prisoners so that they can do something after the completion of their conviction period.

f. Political involvement in our Criminal Justice System has badly affected our smooth criminal management and interrupted the daily activities of the criminal justice organs. It is necessary to take the criminal justice organs outside the political interference.

g. Corruption is one of the main problem of our Criminal Justice System that should be controlled through “check and balance”.

h. Amendment of traditional criminal law is very necessary to take the challenge of twenty first century.

i. There must be a “monitoring board” to monitor and supervise the activities of the criminal justice organs of the State.

j. There needs to be a research wing under the ministry of Home Affairs which shall be responsible for research in changing trends in crime, corruption and correction.

Conclusion:

Liberal democracy in Criminal Justice System in Bangladesh can bring spectacular changes in order to resolve some of the century old problems in our Criminal Justice System. It will surely challenge the existing discipline and punishment apparatus in our colonial CJS and prescribe for some timely reforms in police, courts and correction. We believe, the recommendations presented in this paper, are to advocate for social equality and justice and uphold human rights. Our argument also focused on the necessity to internalize law and order in a society through an active participation of both CJS agencies as well as the public. Along with that, we stressed on the benefits of a Liberal Criminal Justice System which can bring many favorable outcomes like making Criminal Justice system more people oriented, winning public confidence on CJS as well as reduce State’s expenditure on CJS. However, we do not encourage the policy makers to follow any model being blindfolded, rather we establish that any model of CJS needs to be cross examined based on the environment of the very society where the system shall be integrated.

References

  1. Beijing Review, (1986) 29, NO. 09, (March 3), pp. 5-6.
  2. Cohen, Jerome,; ( 1982), “ Chinese Criminal Code Symposium”. The Journal of Criminal law and Criminology 73:135-203
  3. Wei Min (1981) “Reforming Criminals” Beijing Review, No. 8 , February. P. 28
  4. Kashem , Mohammed B. “ Preventing Crime: police & Crime Control in Bangladesh”. Journal of Asian Association of police Studies 1, 1 (2003) : 89-114
  5. Jahan , Ferdous and Kashem, Mohammed B. “ Law and order Administration in Bangladesh”. Working Paper, Dhaka, Bangladesh. Center for Governance Studies, BRAC University, 2006.
  6. Ahsan, A. “Administration of Criminal Justice In Pakistan” . Resource Material Series, 42. Tokyo, Japan: United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders ( UNAFEI) , 1992.
  7. The Daily Inqilab, September 28, 2006, Dhaka, Bangladesh.
  8. Patwary, ABM Mofijul Islam , Legal System Of Bangladesh, Dhaka, 1991
  9. Sial, Omer. A Research Guide to the Peoples’ Republic of Bangladesh, Dhaka:2008
  10. BRAC Research and Evaluation Division & Center For Governance Studies, BRAC University . The Study of Governance in Bangladesh, Dhaka, : Bangladesh, 2006.
  11. Banglapedia , National Encyclopedia of Bangladesh, Legal System, Dhaka: Asiatic Society of Bangladesh, 2006.

Footnotes

[1] The State of governance in Bangladesh , 2006: Knowledge, Perceptions and Reality; Dhaka, Bangladesh; Center for Governance Studies; BRAC University, 2006.

[2] The Special Powers Act, 1974 (SPA) was promulgated by the Awami League Government of Sheikh Mujibur Rahman on 9th of February 1974. The overrides safeguards against arbitrary detention in excess of 24 hours in Bangladeshi laws. It allows the government not only to detain anyone without having to justify the detention before a court, but also to keep the detainee in prison for up to four months, or in certain cases. Although the SPA gives wide discretion to the detaining authority to act according to its own opinion, in practice , most detention orders are declared unlawful by the High Court on Procedural grounds

[3] The three strikes statutes that allow for stiff penalties, including life in prison for third time offenders.

[4] Kashem, Mohamad B, “Preventing Crime: Police and Crime Control In Bangladesh”. Journal of Asian Association of Police Studies , 1, 1 (2003): 89-114.

[5] See Hung-En-Sung (2006) Democracy and Criminal Justice in Cross-National Perspective: Crime Control to Due Process, The ANNALS of the American Academy of Political and Social Science, May, 2006. p.329.

[6] See Stephen P. Savage and Mike Nash in Yet Another Agenda for Law and Order: British Criminal Justice Policy and the Conservativeness, International Criminal Justice Review 1994.

[7] See Smith D (2007) Confidence in the Criminal Justice System: What Lies Beneath. Ministry of Justice Research Series 7/07. London: Ministry of Justice

[8] See Jackson J, Bradford B, Hough M and Murray KH (in press) Compliance with the law and policing by consent: Notes on legal legitimacy and cynicism. In: Crawford A, Hucklesby A (eds) Legitimacy and Compliance in Criminal Justice. London: Routledge.

[9] See G. Frederick Allen in Where Are We Going in Criminal Justice? Some Insights From the Chinese Criminal Justice System, International Journal of Offender Therapy and Comparative Criminology 1987. pp.101-110

[10] Supra note 10 at p. 11.

About The Writer

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Md. Tajul Islam

Joint District Judge

Thakurgaon

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