THE judicial system in Bangladesh is crying out for reform. No government so far has taken any effective step in this regard. Following the July-August uprising, the interim government was formed, which shouldered the high aspirations of the people and accordingly formed a number of commissions to materialise people鈥檚 aspirations, including judicial and constitutional commissions.
As per the existing constitutional provisions, the High Court Division is seated only in Dhaka, which can by no means be adequate for a nation having eighteen crore people. When the framers of the constitution enacted the provisions regarding the seat of the High Court in 1972, the total population of Bangladesh was seven crore, which now becomes eighteen crore. A court constituted aiming to deliver justice to seven crore people can by no means serve the same purpose for eighteen crore people. A Dhaka-centric High Court is neither adequate nor consistent with the aspirations of the nation and in no way can ensure the equal dispensation of justice.听
Undoubtedly, the High Court Division is overloaded with cases. As per the Annual Report 2022 published in the official website of the Bangladesh Supreme Court, the total number of cases pending before the High Court was 5,16,674 until December 2022, and out of them only 87,474 cases were disposed of, that is 17 per cent of total cases. The report also shows that 91,498 cases were newly filed in the High Court in 2022. In the last ten years, the number of newly filed cases has almost doubled.听
There is no specific data as to the total number of people visiting Dhaka every day for litigation purposes. The number of cases pending before the High Court says that it is supposed to be a huge number that directly creates pressure on the population of the capital city. However, this number of people doesn鈥檛 represent all classes of society. The poor can鈥檛 afford the cost to reach the High Court that ultimately results in justice for the rich. This discrimination can be eliminated by getting the High Court decentralised, which will facilitate access to the High Court for all, resulting in greater access to justice. The present constitution of Bangladesh guarantees eighteen fundamental rights for the citizens, and to move to the High Court to enforce any of these rights is itself a fundamental right. Without making the High Court accessible and affordable to all, how can such rights be enforced?
In 1982, during Ershad鈥檚 regime, six permanent benches of the High Court Division were set up at Chittagong, Sylhet, Comilla, Jossore, Rangpur, and Barishal by Martial Law Proclamation. The Supreme Court Bar Association construed this decentralisation as unjustified and a design to destroy the institution of the judiciary. They started to protest the mode of decentralisation from the beginning and boycotted the court for months. The then Chief Justice could not sit in any court for three years. In 1988, while the constitution was revived after revocation of martial law, provisions for the aforesaid permanent benches were incorporated in the constitution by the eighth amendment. It could not stop the agitation. Finally, the issue went to the court, challenging the constitutionality of the eighth amendment. The Appellate Division, consisting of four judges, declared the impugned amendment as void and ultra vires by a majority of 3:1 following the doctrine of the basic structure of the constitution introduced by the Indian Supreme Court. However, all four judges could not reach any unanimous decision as to the number of basic structures. It was not even decided which structures are basic and which are not. The Indian Supreme Court invoked the doctrine of basic structure with a view to protecting the fundamental rights of Indian citizens from any alteration by the parliament. It upheld people鈥檚 interest. But in Bangladesh, the doctrine was invoked to examine such an amendment that facilitated access to the High Court to enforce fundamental rights.听
Political climate is a major obstacle to decentralisation of the High Court, which was not in favour during the military regime of general Ershad. Now the situation is different. Nothing but the people鈥檚 interest should be the final word to this interim government. They have already constituted a commission headed by professor Ali Riaz for constitutional reform. It is incumbent upon this commission to act in such a way that reflects the demands of society. Keeping the High Court centralised in Dhaka does not reflect the demand of society.
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Muhammad Mamunur Rashid is an advocate,听Bangladesh Supreme Court.
