Frequent and abrupt reconstitution of bench impedes flow of justice
Barrister Moksadul Islam
Article 107(3) of the Constitution empowers the Honourable Chief Justice to determine which Judges are to constitute a Division Bench of the Supreme Court and which Judges are to sit for any purpose. Although this Article does not contain the word reconstitute yet the word constitute here also includes reconstitute. Under Article 107(4) the Chief Justice may also delegate that power to the next most senior judge of either Division. However Article 107 of the Constitution as a whole deals with the rule making power of the Supreme Court for regulating the practice and procedure of the Court and both the clauses (i.e. 3 and 4) of Article 107 envisage a set of “rules” only for the constitution and reconstitution of the Benches of either Division.
Recently like many other institutions of the state the Supreme Court of Bangladesh has also come under heavy criticism for, amongst others, constitution and reconstitution of some of the Benches in the Supreme Court apparently on political ground. In an Emergency General Meeting (EGM) of the association Supreme Court Bar Association on June 28 resolved that 'the jurisdiction over all kinds of writ motions of the Bench comprising Justice Shah Abu Nayeem Mominur Rahman and Justice Mainul Islam Chowdhury was withdrawn immediately after the Bench had issued Rule in a Public Interest Litigation (PIL) Writ on June 18, 2006'. However we will not be examining the impact of reconstitution of a Bench on this ground and the author for the purpose of this write-up will not consider the political part of our judiciary, if there is any. 'Bench' means a Single Bench or Division Bench Court having one or two Justices respectively. Well, there may also be a Special Bench with more than two Justices. Under the normal circumstances a Bench may be reconstituted in two different ways. A Bench may be reconstituted by changing its jurisdiction or power without changing its Judges. Change of jurisdiction may occur in various ways e.g. by giving the Bench additional jurisdiction, by limiting its jurisdiction, by changing the jurisdictions of the Court completely etc. And a Bench may also be reconstituted by swapping Judges between Benches with previous jurisdiction of the Senior Justice or with a completely new jurisdiction or a set of jurisdictions. Sometimes reconstitution of a Bench may become necessary especially when a new additional Judge is appointed under Article 98 of the Constitution. A new Justice needs to be circulated between different Benches with different Justices for training or experience. However a new additional Justice is not appointed everyday in the Supreme Court.
There may be hundreds of matters of different categories and for various purposes which usually remain pending in the Daily Cause List of different Benches of the Court. For example (a) 'as-to-be-mentioned', (b) part-heard matters, (c) motion, (d) hearing of appeal or bail, (e) for argument (after hearing), (f) for order, (g) for judgement, (h) applications of different nature etc. To prepare a complete list that may well be pending in the Daily Cause List of different Courts will not be very easy although technically speaking it's not impossible. More interestingly (it's not easy to explain), there may be various matters, although they were not in the Daily Cause List of a Bench yet they were related to that particular Bench e.g. unlisted motions and applications or mention-slips waiting to be enlisted in the Cause List of that Bench.
Now let us examine, in relation to only a few of the matters, normally what may happen when a Bench is reconstituted. All the “as-to-be-mentioned” matters will have to be mentioned again before a new Court when there is a reconstitution regarding jurisdiction. Part-heard matters may have to be heard again from the vary beginning by a new Bench although it was heard for weeks by the previous Bench. If the matters were for 'argument' situation may arise when the lawyers will have to start over again even though that matter was addressed for days or weeks before the other Bench. If the matter was for appeal and bail was granted pending hearing of the said appeal no lawyer is going to bring the matter in the Cause List again as he knows very well that outcome of the appeal may go either way. A lawyer with the help of his clerk works vary hard to get the matters in the Daily Cause List of a particular Bench and may be he was watching the matter for months and hoping to get the matter heard any moment. Let's say tomorrow. Sudden reconstitution of that Bench, next morning, simply means nightmare for that lawyer and more delay and frustration for his client. Some of the matters which were in the Cause List may need to be heard particularly by the old Bench and under those circumstances a Special Bench with the previous Justices may well have to be reconstituted only for those matters.
Reconstitution of any Bench is completely a discretionary power of the Hon'ble Chief Justice. The writer neither found anyone who knows if any of the previous Chief Justices ever delegated this power to the next most senior Judge under Article 107(4) of the Constitution nor have seen any rules or regulations for this purpose. However, sincerely speaking, reconstitution of any Bench without considering the matters pending in the List of a particular Bench impedes natural flow of justice and at times may deny justice. It has became imperative that a set of 'rules' as envisaged therein in the Article 107 of the Constitution are framed for this purpose reflecting all the abovementioned and other aspects of the Daily Cause List.
This is a fortnightly column and the columnist is an advocate of the Supreme Court of Bangladesh, who can be reached at firstname.lastname@example.org.