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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 307
February 09, 2013

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Your Honour

Access to the 'High Court'

Muhammad Mamunur Rashid

The High Court Division in Bangladesh is seated only in Dhaka having jurisdiction over the country where about 160 million people live that ranks them the 8th largest populous in the world. Dhaka Centric High Court Division is indeed inadequate that can by no means ensure smooth access to justice for such a vastly populous nation. Most of the people in Bangladesh are poor and live away from the capital and obviously they are not capable of getting access to this Court as they cannot afford to reach it.

After a historic struggle for national liberation, we have adopted a Constitution and in its preamble, it has been pledged: 'it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation- a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens'.

The preamble states the fundamental aim as to what the nation intends to reach. In light of this aim, we have enumerated 18 fundamental rights in Part III of the Constitution. The access to the High Court Division to enforce any of these rights is also a fundamental right. But, when one needs to enforce any of these rights, he/she has to move the High Court Division that is seated only in the capital city. The 'rule of law' is the first essential in the fundamental aim that was aimed to secure for all citizens. Without ensuring adequate access to justice, how the rule of law will be secured for all? In absence of adequate and smooth access to justice, the rule of law as well as the fundamental rights is meaningless.

The High Court Division in Dhaka is over loaded with cases. After filing a case, it takes approximately 6 months to be enlisted in Cause List and several years to be disposed of. In the official website of Bangladesh Supreme Court, there is no data as to the number of cases pending in the High Court Division. However, on 20 March, 2011, the law minister Barrister Shafique Ahmed informed the Parliament that there were 313,735 cases pending in the High Court Division. This number is supposed to be increased more in last 21 months. The number of cases pending in the High Court Division shows a picture as to how it is packed with cases. Most of the litigants in the High Court are merely from the rich. The poor cannot reach the doorstep of High Court as it is beyond their imagination to afford the cost.

Due to centralisation of the High Court Division, the litigation cost is very high that is also rising day by day. It becomes difficult for most litigants to cope with this rising cost. In respect of a litigant coming from the remote village, the cost, in addition to the Court fee and lawyer fee, includes traveling, accommodation and meal in Dhaka. There is also some unfair cost charged by some clerks and officers working in the Court. Harassment by some dishonest persons is another problem in the High Court Division. Most of the litigants are from remote area and therefore, they face such harassment and cannot react against it that they could have done in their native area.

A High Court Division only in the capital city is neither adequate nor consistent with the aspirations of nation. The fundamental aim stated in the preamble will never be truly reached unless we ensure smooth access to justice for common people. The High Court Division needs to be decentralised to make justice affordable and accessible, assure the dispensation of justice, minimise the delay in justice, reduce the works overloaded on judges and enhance the efficiency and expertise of both the judges and lawyers. All these will bring a huge relief for common people.

It is pertinent to mention that after Martial Law Proclamation in 1982, six permanent benches of the High Court Division were set up at Chittagong, Sylhet, Comilla Jessore,Rangpur and Barishal. Later, when the Constitution was revived after withdrawal of Martial Law, Article 100 of the Constitution was amended by the Parliament incorporating provision for those six permanent benches that was challenged in Anwar Hussain Chowdhury vs. Bangladesh case and declared as void. The High Court Division has been restored to its original form. In this case, for the first time in Bangladesh, the Appellate Division has identified some salient features of Constitution as basic structures which cannot be amended by the parliament alone. Unitary character of the Republic, independence of judiciary, rule of law etc were regarded as structural pillars of the Constitution which were destroyed by the amended Article 100.

By the way, the preamble of Bangladesh Constitution is regarded as an entrenched provision that carries legal values. It is also compared with the 'touchstone' and called the 'pole star' of Constitution. The preamble has indicated the path throwing light as to what we intend to reach and what is our fundamental goal. Now it is incumbent upon the legislature to make the relevant substantive part of the Constitution in light of the preamble that will make the path smooth to reach the fundamental goal.

It is a big Constitutional question that if it is possible to establish more HCD without jeopardising the basic structures of the Constitution. If not, then what is the solution? Is there a permanent roadblock?

In this regard, we can look at our neighbouring country India, where additional benches along with the main seat of High Court are permanently in functioning within the jurisdiction of a single State. In the State of Tamil Nadu, the Madras High Court is seated at Chennai having an additional bench at Madurai. In Uttar Pradesh, a permanent bench of the Allahabad High Court is in functioning at Lucknow along with the main seat at Allahabad. The Madhya Pradesh and Rajasthan High Court have also additional benches at Gwalior and Jaipur respectively. A circuit bench of the Calcutta High Court at Jalpaiguri is about to start functioning.

These would be good examples for Bangladesh to follow. Here the relevant Article 100 goes: 'the permanent seat of the Supreme Court shall be in the capital, but sessions of the High Court Division may be held at such other place or places as the Chief Justice may, with the approval of the President, from time to time appoint'. As per this provision, seven benches of the High Court Division may be seated in the seven divisional cities. Once the Prime Minister Sheikh Hasina also urged honourable Ex. Chief Justice A.B.M. Khairul Haque to set up a circuit bench of the High Court Division at Chittagong, but there was no response. However, these benches probably cannot be seated permanently. The legal experts may cogitate that if it is possible or not within the ambit of existing Article 100. One may argue that whatever the mode of decentralisation is, it will affect those basic structures of the Constitution anyhow because of the majority judgement in Anwar Hussain Chowdhury Vs. Bangladesh case.

In this sub-continent, the concept of basic structure was originated in India and developed by the Supreme Court of India. Then it was followed in Bangladesh, though the climate and circumstances to invoke this doctrine was quite different than India. However, they have introduced the concept of basic structures and certainly there was no single structure that could make any bar to decentralise their High Courts. The High Courts in India were established as per the provision laid down in article 214 of the Constitution of India which reads as follows: 'There shall be a High Court for each State'. It is noticeable that the words 'a High Court for each State' create there no bar to establish more permanent benches for a single State.

The population of Bangladesh was only 7 crore while the Constitution was enacted. The framers of the Constitution might have considered this number of population as they were enacting the provision of centralised High Court Division. A High Court Division centralised in the capital might have been adequate for 7 crore people but it can by no means ensure smooth and adequate access to justice for 16 crore people.

The rights guaranteed by the Constitution are for all citizens. But it seems as if all the rights and their enjoyment are only for the rich. It has to remember that we, the people of Bangladesh, have adopted this Constitution for us; for materialisation of our aspirations, we are not for the Constitution.

The writer is an Advocate, Judge Court, Sylhet.





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