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Rights Advocacy

The use of foreign judgment in the legal system of Bangladesh
Mehadi Hasan & Nadim Zawad Akil
The judicial use of international laws, judgments in formal adjudicative courts is being seen and recognised around the world to an increasing extent. This practice is not something contradictory with state sovereignty or the national legal system but must be treated liberally. In spite of being an unequivocal follower of dualism, Bangladesh is constitutionally committed to awe 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. But in general, although often having statutes, common law systems rely more on judicial precedents, decisions that have already been given by the judges. Common law systems are not investigatory, rather adversarial in nature, with the respective judge moderating between the contested parties. As the legal system of the sub-continent inherited common law traditions and as the courts of the sub-continent never confronted the issue before decolonisation, the common law followers in the sub-continent follow the common law approach to the application of international law into national courts.
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 globalisation.
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.
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”. Even in the Hussain Mohammad Ershad and other cases, on the question of application of international obligations of sovereign states on international conventions and treaties, the court accepted the conventions and treaties.
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 analyse 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 judgment are being considered.
Already in some of the cases, our judiciary was gracious enough in taking some noteworthy foreign judgments as strong reference. This is how the historical material source of law enriches the domain of legal jurisprudence in our country and the world at large.
It will not be wrong to say that with this development of different sectors and the disputes arising in different matters, the use of foreign judgment has been increased. Even in the near future while deciding on any issue the use foreign precedents will be increased and will be followed in the judiciary of Bangladesh.
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.
Even in landmark constitutional cases of India, the case laws and precedents have been followed in deciding the matters, e.g. right to privacy, freedom of press and the constitutionality of the death penalty.
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.
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. So, the more the judges apply foreign judgments and judicial precedents, the more efficient our justice system will become.
THE WRITERS ARE STUDENTS OF LAW AT NORTH SOUTH UNIVERSITY.
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.