Law Commission

Law Commission an independent body set up by an Act of the jatiya sangsad to keep the laws of Bangladesh under review, and recommend reforms when needed. It is not a branch of the government for acting as legal adviser or as a drafting cell. One basic function of the commission is to conduct this research and consultation, and make proposals for updating, improving and simplifying the laws.

The origin of law commissions in the subcontinent dates back to 1834 when in pursuance of the Charter Act of 1833 the first law commission was established in India under the chairmanship of Thomas Babington Macaulay, popularly known as Lord Macaulay. Three successive law commission (1853, 1861 and 1879) were constituted in the nineteenth century. These commissions enriched the statute book of India with a large body of legislations. Besides the Penal Code of 1860 and the Criminal Procedure Code of 1898, such important laws as the Civil Procedure Code of 1908, the Contract Act of 1872, the Evidence Act of 1872, now in force in Bangladesh, had been the products of the recommendations of the first four law commissions.

During the Pakistan period two law reform commissions were set up, first in 1958 under the chairmanship of Justice S. A Rahman and the second in 1967 under the chairmanship of Justice Hamoodur Rahman. The first commission examined the causes of delay in civil and criminal litigation and recommended amendments in the relevant laws. The second commission submitted a fairly comprehensive report on the delays in civil and criminal litigation.

The first law reform committee in Bangladesh was set up in 1974 with Justice Kamaluddin Hossain as chairman. The second committee was set up in 1979 under the chairmanship of Justice Altaf Hossain. These committees examined, among others, procedural laws and recommended amendments to expedite disposal of civil and criminal cases. Another law commission was established in 1990 under the chairmanship of Asrarul Hossain, Bar-at-Law. This short-lived commission made certain recommendations regarding the Code of Civil Procedure of 1908.

The Government of Bangladesh adopted a resolution in 1994 for setting up a law reforms commission, but it was not constituted until May 1996. On 25 May 1996, the caretaker government constituted the law reforms commission appointing Justice Naimuddin Ahmed, a retired judge of the Supreme Court as member and acting chairman. On 4 August 1996, Fazle Kaderi Mohammad Abdul Munim, former chief justice of Bangladesh, was appointed chairman of the commission. On 9 September of the same year, the Law Commission Act was passed by the Jatiya Sangsad for setting up a permanent law commission. By operation of the Law Commission Act of 1996, the law reforms commission was converted into the law commission. After enactment of the Act, Amin-ur-Rahman Khan, a retired judge of the Supreme Court, was appointed as the other member of the commission on 22 September 1996.

The Law Commission Act provides for constituting the commission with not less than three members including the chairman. They are appointed by the government. The tenure of office of the chairman and the members are three years from the date of their appointment. They cannot be removed except on the ground of gross misconduct and physical or mental incapability. They can also be re-appointed for one or more terms. Their salary and other terms and conditions of service are determined by the government. At present, the commission consists of one chairman and two members.

The functions and objectives of the Commission specified in the Law Commission Act of 1996 are: (i) to examine and scrutinise selected laws and recommend necessary amendments to, or substitute them according to the needs of the time; (ii) to recommend reforms for modernisation of the judicial system; (iii) to recommend measures for training of judicial officers, lawyers and law officers; (iv) to recommend measures for preventing misuse and abuse of law; (v) to recommend measures for speedy and efficient investigation of criminal cases; (vi) to recommend measures for efficient management of court administration; (vii) to recommend reform of election laws; (viii) to recommend reforms in commercial laws such as, copyright, trademark, patent, arbitration, contract, registration and other laws; (ix) to recommend laws for preventing torture on women and children, and safeguarding their rights; (x) to recommend measures for advancing legal-aid programmes; (xi) to identify inconsistent, conflicting and outdated laws and recommend their removal; (xii) to identify laws which are inconsistent with fundamental rights, and recommend their removal; (xiii) to make recommendation upon reference made by the government on constitutional or legal matters; and (xiv) to conduct research on different subjects of law.

The Commission acts either on a reference from the government through the ministry of law justice and parliamentary affairs or take up as part of its general work the revision of laws or enactment of new laws. The proposed constitutional amendment for separation of the judiciary from the executive organs of the state, the law relating to the prevention and punishment of the offence of genocide, and the Ombudsman Act of 1980, were referred to the Commission by the government. The Trade Marks Act, the Merchandise Marks Act, the Copyright Act, the Admiralty Act, the Patent and Designs Act etc were taken up by the Commission as part of its work of review and revision.

At the end of each year, the Commission prepares a list of the laws it may take up for review and revision during the following year. When the Commission takes up a particular law for review, it prepares a working paper under the supervision of a member and with the assistance of one or more of the research officers. The working paper contains analysis of the law, views of the Commission on its drawbacks or insufficiency, if any, and provisional recommendations for their removal or their replacement or enactment of new laws. After preparation, the working paper is widely circulated among different sections of the people connected or concerned with the law for comments and views. It also invites eminent lawyers and experts on the subject and consults them. While preparing the final report and making its recommendations, the Commission takes into consideration all oral and written comments received by it. A draft report is then prepared by the member and the research officers who take up the project. The report is thereafter sent to the ministry of law, justice and parliamentary affairs. It is then for the government to decide whether to proceed with the legislation or not.

Upto August 1999, the Law Commission submitted final reports to the government on the following enactments recommending revision of the existing provisions and enactment of new provisions: Courts of Admiralty Act, 1891; Merchandise Marks Act, 1889; Copyright Act, 1914; Arbitration (Protocol and Convention) Act, 1937; Trade Marks Act, 1940; Arbitration Act, 1940; and Artha Rin Adalat Ain, 1990. During the period the Commission also gave opinions and recommendations on such matters as: the Indemnity Ordinance Bill, 1996; the Constitution (Amendment) Bill, 1996 (regarding separation of the judiciary); Amendment of the Administrative Tribunal Act, 1982; law on genocide in the light of the Convention on the Prevention and Punishment of the Crime of Genocide; Women and Children Torture Resistance Cell; the Penal Code, 1860; the Explosive Substances Act, 1908; the Arms Act, 1878; the Motor Vehicles Ordinance, 1983; and the Nari O Shishu Nirjatan (Bishesh Bidhan) Ain, 1995; Convention on Elimination of All Forms of Discrimination Against Women; reservations by Bangladesh in respect of certain articles in the Convention on the Rights of Child; expeditious disposal of cases in the subordinate courts; offences of 'robbery' and 'dacoity' in the Penal Code; the Hague Convention, 1907; sections 10 (1) and 12 (1) of the Code of Criminal Procedure, 1898; English text of every enactment; enacting a new provision being section 114A in the Evidence Act, 1872; prevention of smuggling (petty offences) Act, 1999; and the proposed amendment of the Registration Act, 1908. [Naimuddin Ahmed]