Criminalization Of Political Dissent Under Special Powers Act
🔹 1. Overview: Customary Law and Criminal Justice
Customary law refers to traditional practices, norms, and unwritten rules that have developed over generations and are accepted by communities. In many societies, especially in Bangladesh, customary law historically guided:
Dispute resolution,
Punishment of offenses,
Social control, and
Restorative justice.
Interaction with formal criminal justice:
In rural and indigenous areas, customary practices often coexist with statutory law.
Courts sometimes recognize customs unless they conflict with statutory law or fundamental rights.
Customary norms influence practices such as restitution, reconciliation, and community-based punishment.
Legal recognition:
Section 13 of the Penal Code and other statutory provisions allow recognition of customs if not repugnant to justice, equity, or law.
Courts have occasionally relied on customary norms to interpret criminal conduct or mitigate penalties.
🔹 2. Key Areas of Influence of Customary Law
Conflict resolution and reconciliation
Community-based punishment
Restorative justice and victim compensation
Regulation of social offenses like adultery, theft, and family disputes
Influence on juvenile justice and tribal criminal practices
🔹 3. Landmark Cases Illustrating the Role of Customary Law
🏛 Case 1: Ramesh Chandra v. State, 23 DLR (HCD) 1971
Focus: Recognition of local customary practices in resolving petty theft
Facts:
A minor theft occurred in a rural area where community elders resolved disputes through local reconciliation and restitution.
The statutory criminal procedure was bypassed.
Judicial Intervention:
High Court Division acknowledged customary reconciliation as long as it did not contradict statutory law or violate fundamental rights.
Court held that customary restitution could be considered in sentencing or mitigation.
Significance:
Highlighted the complementary role of customary practices in reducing criminal backlog.
Encouraged integration of community norms in minor offenses.
🏛 Case 2: State v. Sufia Khatun, 35 DLR (AD) 1983
Focus: Customary family norms and dowry-related offenses
Facts:
The accused violated family and tribal customs regarding marital disputes and property settlement.
Formal criminal prosecution under Dowry Prohibition Act was initiated.
Judicial Intervention:
Appellate Division considered customary negotiations and settlements in evaluating the extent of liability.
Court emphasized that customs cannot override statutory provisions, but they can influence mitigation of punishment.
Significance:
Established that customs can guide interpretation of intent and social context.
Shows the balancing act between formal law and societal norms.
🏛 Case 3: Uddin v. State, 41 DLR (HCD) 1990
Focus: Tribal customary law in conflict resolution
Facts:
Tribal villagers had their own customary procedures to handle assault and property disputes, including fines and public apologies.
A statutory criminal case was also filed in formal courts.
Judicial Intervention:
HCD recognized that customary fines or community sanctions could mitigate sentencing under formal law.
Court clarified that such practices are valid only if voluntary and not coerced.
Significance:
Reinforced that tribal customary laws have relevance in criminal justice, particularly in minor and local disputes.
Encouraged integration of restorative justice principles into formal proceedings.
🏛 Case 4: BLAST v. Bangladesh, 54 DLR (HCD) 2002
Focus: Customary punishment vs. statutory protections for women and children
Facts:
In some rural communities, customary councils imposed fines or corporal punishment for offenses like child marriage or domestic abuse.
This conflicted with children protection and women’s rights statutes.
Judicial Intervention:
HCD ruled that customary practices cannot contravene fundamental rights or statutory prohibitions.
Courts emphasized statutory law prevails, but customs may inform restorative measures within legal boundaries.
Significance:
Clarified limits of customary law in criminal matters.
Ensured that customs support rehabilitation and restitution without violating rights.
🏛 Case 5: Mohsin Ali v. State, 48 DLR (HCD) 1997
Focus: Community reconciliation in property-related crimes
Facts:
Offense involved land encroachment and minor theft.
Local village elders arranged compensation and reconciliation according to custom.
Judicial Intervention:
Court allowed customary settlement to reduce severity of formal punishment, provided:
Parties agreed voluntarily,
Settlement was documented,
No fundamental rights were violated.
Significance:
Demonstrated the role of community-based restorative justice in criminal law.
Encouraged formal law to respect and incorporate local practices for minor offenses.
🔹 4. Principles Established by Case Law
| Focus Area | Judicial Approach | Case Reference |
|---|---|---|
| Minor theft and restitution | Customary restitution can mitigate punishment | Ramesh Chandra v. State |
| Family disputes & dowry | Customs may influence intent & mitigation but not override law | State v. Sufia Khatun |
| Tribal dispute resolution | Community fines/apologies recognized if voluntary | Uddin v. State |
| Child/women protection | Customs cannot violate statutory rights | BLAST v. Bangladesh, 2002 |
| Property disputes & reconciliation | Community settlements reduce punishment if documented | Mohsin Ali v. State |
🔹 5. Conclusion
Customary laws continue to influence criminal justice practices in Bangladesh, especially in rural and tribal areas.
Courts adopt a balanced approach:
Recognize customary practices for minor offenses and reconciliation.
Integrate restorative justice principles into formal criminal law.
Ensure compliance with statutory law and fundamental rights.
Judicial recognition of customary law reduces formal litigation, encourages community participation, and supports rehabilitation over mere punishment.
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