Author’s Name: KANAK KANTI KARMAKAR
Co-Author’s Name: MD.
MAHAMUDUN NOBY RUPOK
The judicial use of
international laws, judgments in formal adjudicative courts is being seen and
recognized around the world to an increasing extent. This practice is not
something contradictory with state sovereignty but must be treated liberally.
In spite of being an unequivocal follower of dualism, Bangladesh is constitutionally
committed to respect international laws.
The ingrained gist of Article
25
of the Constitution of Bangladesh is that Bangladesh respects both customary
and conventional rules of international laws and the principles described in Article
1 of the UN Charter. In a nutshell, the constitutional
provision on international law is the portraiture of jus
cogens norms and exemplary in nature. Furthermore, section
13
of the Code of Civil Procedure (CPC), 1908 sets the foundation of
conclusiveness of foreign judgments considering some exceptions mentioned
thereby. Section
14
of the CPC also stipulates that the production of any documents on foreign
judgments shall be presumed as it was given by a court of competent
jurisdiction unless any contrary appears.
From a global
perspective, the enforcement of the foreign judgment is basically a complex
topic, governed by a variety of methods in different jurisdictions involving a
mixture of bilateral and multilateral conventions and jurisdiction-specific
procedural laws, rules and regulations. In many cases, legal representatives
submit foreign judgments to support their claim and the judiciary accepts it.
This acceptance is not only for ensuring utmost justice but also for stirring
the legal field in the era of globalization.
Since independence, the
Supreme Court of Bangladesh has applied foreign judgments in several cases. In Hussein
Mohammad Ershad v Bangladesh and Others(2001) 21BLD (AD) 69,
the Appellate Division held that national courts should not overlook the
international laws if there is no suitable national law in disputed issues then
the court can take into consideration the principles of international
instruments. In broader scenes, the international instruments can be
international conventions, treaties and foreign judgments.
Recently, the International Crimes
Tribunal Act of 1973 (ICT-BD Act) was heavily criticized both politically and legally at the
national and global levels, including by Human Rights Watch, Amnesty International, and the UN Human Rights Council, for its lack of neutrality and non-compliance
with international legal standards. Thus, it is suggested that both
the tribunal and the ICT Act require major legislative, institutional, and infrastructural change to meet international
standards. For instance, the definition of crime against humanity is incomplete in the ICT-BD Act. To prove the
offence of crime against humanity, a crucial element is required to prove. That
is ‘Widespread or systematic attack directed against any civilian population’.
Therefore, in this situation, the concerned Judges or experts can take help
from the international instruments like the Rome Statute, 1998.
In
the case of Mrs. Aruna Sen v Government of Bangladesh (1975) 27 DLR (HCD) 122,
to prevent the detention by executive authority, the court considered the
decision of Liversidge
v Anderson (1942) AC 206, where Lord Atkins said that ‘every imprisonment without trial and conviction
is prima facie unlawful’. In this case the influence of constitutional
borrowing and transplant is reflected by the judges.
Honorable Supreme Court
of Bangladesh in the case of Tayeeb & ors v Govt. & ors (2015) 67 DLR
57 (AD) transplants the idea of suo-moto
rule
from the Marbury
v Madison (1803) because the language of Article 102 does
not expressly mention about the suo-moto jurisdiction of the court.
Reaching a decision by
ensuring utmost justice may not always seem unstrained to the court. In this
case, international principles, foreign judgments can play a handy role.
Learned judges are more likely to analyze and overlook the judicial precedents.
In Bangladeshi legal
parlance, use of foreign judgments and international law principles can add a
new dimension in attaining utmost justice. With the expansion and development
of the economy, intellectual property rights and refugee rights, many foreign
arbitral awards and precedent of foreign judgments are being considered.
The foreign judgments and
precedents are required in different appellate trials and settlements such as
cross-border business dealings, family disputes and the parties in different
jurisdictions deliberate the importance of foreign statutes and judgments. Even
national courts look into the foreign precedents when there is an imbalance in
the laws, which makes the judiciary of a country more functional.
In the perspective of
other countries, India from the beginning of independence has frequently
depended on the case law from other common law jurisdictions. The judicial
precedents of the United Kingdom, United States of America, Canada and
Australia have been relied upon frequently. For instance, in Subhash Kumar v State of
Bihar AIR (1991) SC 420, international instruments have been
taken into consideration. Furthermore, the Court has enunciated ‘right
to a healthy environment’ as an extension of right to life
and personal liberty. Moreover, in South Africa, the Constitution has a clear
provision that directs the consideration
of international laws as well as foreign judgments in
interpreting its Bill of Rights.
The outcome of applying
foreign judgments in the national legal system is too many. This practice will
make the judicial system smoother and more dynamic than as usual. Analysis of
foreign judgments and principles can adhere to contemplation of national legal
principles. The ideas and principles can be an effective way forward to improve
judicial practice. Therefore, the more the judges apply foreign judgments and
judicial precedents, the more efficient our justice system will become.
Author’s
Name: KANAK KANTI KARMAKAR
Affiliation:
Lecturer
in Department of Law & Justice at North East University Bangladesh, Sylhet Editor-in-Chief at Tuhin & Partners, Supreme Court of Bangladesh.
Email: kanakkarmakar98@gmail.com
Contact: +880 1521 428406
Co-Author’s
Name: MD. MAHAMUDUN NOBY RUPOK
Thanks for publishing.
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