Mohammad Ali
Some provisions that have been put in place in the recently amended securities law on formation of 'capital market tribunal' are contrary to some sections of the Code of Criminal Procedure (CrPC)-1898, according to legal experts and academics.
They said that incorporation of such inconsistencies might create multiple complexities during the adjudication process at the tribunal, affecting the capital market, the listed companies and the investors at large.
In late 2012, the Securities and Exchange Ordinance (SEO)-1969 was amended empowering the government to set up Special Tribunal(s) to deal with the capital market- related cases. In this connection, a new section-- 25B-- was inserted after section 25A in the SEO.
"The provisions at the section 25B are contradictory to the powers and functions of the Court of Sessions as prescribed in section 9 read with sections 31, 408, 409 and 439A of the CrPC," they said.
When contacted, Supreme Court lawyer Advocate Shah Mohammad Ahsanur Rahman told the FE, "Such inconsistent law may negatively affect the trial procedures at the capital market tribunal and consequently the stock market too in the country."
Explaining the CrPC and amended provisions of the SEO-1969, the legal experts and academics said that no court inferior to 'Court of Sessions' has power to try offences punishable under the SEO-1969 as per its section 25.
But the Special Tribunal(s) was given such power, though the term 'Special Tribunal' was not specifically defined or referred as 'Court of Session' anywhere in the SEO-1969 or in the amendment, they said.
After that, though the 'Special Tribunal' was 'indirectly' termed as the 'Court of Sessions' at the amended securities law, the Tribunal's structure, power and functions are not same to those of 'Court of Sessions' as defined at the CrPC, they noted, and clarified the matter.
Structure
According to section 6 of the CrPC, apart from the Supreme Court (SC), there shall be five classes of criminal courts in Bangladesh. There are: 1) court of sessions, 2) metropolitan magistrates, 3) magistrates of 1st class, 4) magistrates of 2nd class, and 5) magistrates of 3rd class.
Sessions divisions were defined in section 4 of the CrPC as every sessions division shall, for the purpose of this Code, be a district or consist of districts, while its section 7(3) stated the existing sessions division and districts respectively for the existing courts of sessions.
Section 7(4) of the CrPC says that a metropolitan area shall, for the purpose of this Code, be deemed to be a sessions division, and section 9(1) says that the government establishes a court of session for sessions division, and appoint a judge for such court and the court of sessions for metropolitan area shall be called the metropolitan court of sessions.
The government may also appoint additional sessions judges to exercise jurisdiction in one or more such courts, as per Section 9(3) of the CrPC.
But the structure of 'Special Tribunal' doesn't match to any of the courts defined as 'Court of Sessions' in the CrPC, the lawyer said.
Power
Section 31(2) of CrPC states that sessions judge or additional sessions judge may pass 'any sentence' including death sentence authorised by law. As per section 31(3) of the Code, an assistant sessions judge may pass any sentence authorised by law except a sentence of death or of transportation of a term exceeding 10 years or of imprisonment of a term exceeding 10 years.
But the 'Special Tribunal', established under section 25B of the SEO-1969, has no such power.
Functions
Though the 'Special Tribunal' was given all the powers conferred by CrPC under the amendment, but there is inconsistency in functions specified in the amended SEO and in the CrPC.
If any case is transferred from a Sessions Court to such another court as per Section 349A(1) of the CrPC, the later has three options in proceeding with the case such as: acting on the evidence which is 1) recorded by predecessor, or 2) partly recorded by predecessor and partly recorded by himself, or 3) the later may re-summon the witnesses and recommence the trial.
But the Special Tribunals have only one option in this connection such as: the later will have to try the case from such stage wherefrom it (case) was so transferred, according to newly inserted Section 25B(4) of the SEO-1969.
Modus Operandi
Although the Court of Sessions were empowered to exercise its power based on Penal Code and other special laws including Special Powers Act-1974, but there is no penal provision framed for the Special Tribunal except section 17 of the SEO and section 18 of the SEC Act-1993, and no rules and/or regulations are as yet framed in order to file case before the tribunal, and the mode of operande (tribunal's course of action), passing the implement and order and finally how to execute the judgment and orders passed by the tribunal.
However, a sponsor shareholder of a listed firm also raised some of the inconsistencies at a supplementary affidavit placed before the High Court (HC) recently.
The affidavit was submitted in order to strengthen his argument in his original writ petition that the Bangladesh Securities and Exchange Commission (BSEC), securities regulator, acted 'carelessly' on the much-talked about mandatory 2.0 per cent share holding requirement.
The writ petition is now pending for hearing at the HC that earlier issued a rule on the mater.
When contacted, BSEC spokesperson and executive director Md Saifur Rahman told the FE last week, "It is better not to comment on the matter pending before the honourable court. The commission (BSEC) has legal experts. They will discuss with the commission, if any explanation on the issue is needed."
"A gazette notification about establishment of the tribunal and procedures of its function is set to be published soon," Mr Rahman added.
Some provisions that have been put in place in the recently amended securities law on formation of 'capital market tribunal' are contrary to some sections of the Code of Criminal Procedure (CrPC)-1898, according to legal experts and academics.
They said that incorporation of such inconsistencies might create multiple complexities during the adjudication process at the tribunal, affecting the capital market, the listed companies and the investors at large.
In late 2012, the Securities and Exchange Ordinance (SEO)-1969 was amended empowering the government to set up Special Tribunal(s) to deal with the capital market- related cases. In this connection, a new section-- 25B-- was inserted after section 25A in the SEO.
"The provisions at the section 25B are contradictory to the powers and functions of the Court of Sessions as prescribed in section 9 read with sections 31, 408, 409 and 439A of the CrPC," they said.
When contacted, Supreme Court lawyer Advocate Shah Mohammad Ahsanur Rahman told the FE, "Such inconsistent law may negatively affect the trial procedures at the capital market tribunal and consequently the stock market too in the country."
Explaining the CrPC and amended provisions of the SEO-1969, the legal experts and academics said that no court inferior to 'Court of Sessions' has power to try offences punishable under the SEO-1969 as per its section 25.
But the Special Tribunal(s) was given such power, though the term 'Special Tribunal' was not specifically defined or referred as 'Court of Session' anywhere in the SEO-1969 or in the amendment, they said.
After that, though the 'Special Tribunal' was 'indirectly' termed as the 'Court of Sessions' at the amended securities law, the Tribunal's structure, power and functions are not same to those of 'Court of Sessions' as defined at the CrPC, they noted, and clarified the matter.
Structure
According to section 6 of the CrPC, apart from the Supreme Court (SC), there shall be five classes of criminal courts in Bangladesh. There are: 1) court of sessions, 2) metropolitan magistrates, 3) magistrates of 1st class, 4) magistrates of 2nd class, and 5) magistrates of 3rd class.
Sessions divisions were defined in section 4 of the CrPC as every sessions division shall, for the purpose of this Code, be a district or consist of districts, while its section 7(3) stated the existing sessions division and districts respectively for the existing courts of sessions.
Section 7(4) of the CrPC says that a metropolitan area shall, for the purpose of this Code, be deemed to be a sessions division, and section 9(1) says that the government establishes a court of session for sessions division, and appoint a judge for such court and the court of sessions for metropolitan area shall be called the metropolitan court of sessions.
The government may also appoint additional sessions judges to exercise jurisdiction in one or more such courts, as per Section 9(3) of the CrPC.
But the structure of 'Special Tribunal' doesn't match to any of the courts defined as 'Court of Sessions' in the CrPC, the lawyer said.
Power
Section 31(2) of CrPC states that sessions judge or additional sessions judge may pass 'any sentence' including death sentence authorised by law. As per section 31(3) of the Code, an assistant sessions judge may pass any sentence authorised by law except a sentence of death or of transportation of a term exceeding 10 years or of imprisonment of a term exceeding 10 years.
But the 'Special Tribunal', established under section 25B of the SEO-1969, has no such power.
Functions
Though the 'Special Tribunal' was given all the powers conferred by CrPC under the amendment, but there is inconsistency in functions specified in the amended SEO and in the CrPC.
If any case is transferred from a Sessions Court to such another court as per Section 349A(1) of the CrPC, the later has three options in proceeding with the case such as: acting on the evidence which is 1) recorded by predecessor, or 2) partly recorded by predecessor and partly recorded by himself, or 3) the later may re-summon the witnesses and recommence the trial.
But the Special Tribunals have only one option in this connection such as: the later will have to try the case from such stage wherefrom it (case) was so transferred, according to newly inserted Section 25B(4) of the SEO-1969.
Modus Operandi
Although the Court of Sessions were empowered to exercise its power based on Penal Code and other special laws including Special Powers Act-1974, but there is no penal provision framed for the Special Tribunal except section 17 of the SEO and section 18 of the SEC Act-1993, and no rules and/or regulations are as yet framed in order to file case before the tribunal, and the mode of operande (tribunal's course of action), passing the implement and order and finally how to execute the judgment and orders passed by the tribunal.
However, a sponsor shareholder of a listed firm also raised some of the inconsistencies at a supplementary affidavit placed before the High Court (HC) recently.
The affidavit was submitted in order to strengthen his argument in his original writ petition that the Bangladesh Securities and Exchange Commission (BSEC), securities regulator, acted 'carelessly' on the much-talked about mandatory 2.0 per cent share holding requirement.
The writ petition is now pending for hearing at the HC that earlier issued a rule on the mater.
When contacted, BSEC spokesperson and executive director Md Saifur Rahman told the FE last week, "It is better not to comment on the matter pending before the honourable court. The commission (BSEC) has legal experts. They will discuss with the commission, if any explanation on the issue is needed."
"A gazette notification about establishment of the tribunal and procedures of its function is set to be published soon," Mr Rahman added.
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