ADVANTAGES AND DISADVANTAGES OF ESTABLISHING BENCHES OF HC DIVISION ALL OVER THE COUNTRY
1. Bangladesh is a unitary, democratic republic having its population of around 140 million, of which about 60 percent of the people depend on agriculture for their livelihood. The Muslim constitutes 88 percent of the population and the rest is of other religions. The Constitution guarantees religious and cultural freedom to all citizens of the country and that is why it is well known as a Moderate Muslim state in the world. It has primarily an agrarian economy and agriculture is the largest sector in the national economy producing about 30 percent of the country’s GDP and employing around 60 percent of total labour force.
2. Being a sovereign republic it comprises three basic organs. And they are the executive, the legislature and the judiciary. The administration of justice is the responsibility of the judiciary, which comprises the Appellate Division and the High Court Division of the Supreme Court at the higher level, followed by a hierarchy of civil and criminal courts at the District level. In strict sense the Appellate Division of the Supreme Court is the highest Court of the republic comprising of 7 judges including the Chief Justice. Judicial independence and impartiality are guaranteed by the constitution of the country.
3. In our age old legal systems there are some critical problems in access to justice mainly for the following reasons: Firstly, increased sophistication of the legal system which led to increased cost of litigation; Secondly, continuing social inequality combined with the increased litigation cost created a sort of restriction of access to justice for larger segment of the population, often precisely the poor and disadvantaged groups of the society. Moreover, the centralized judicial system has made it more difficult for the general mass to get the justice in time. In order to respond to the demand for equality of Justice and to make justice delivery speedy, effective, transparent, accessible and affordable to the people in general, it is an utmost requirement to decentralize the judicial system and establish permanent Benches of High Court Division to the division levels.
The Present Judicial System in Bangladesh
The judiciary in Bangladesh, headed by the Chief Justice, consists of the Supreme Court and the Subordinate Courts. The Supreme Court has two divisions, the Appellate Division and the High Court Division. Most cases trailed by the court system originate at the district level. The High Court Division hears appeals from the district court and also trails original cases. The Appellate Division of Supreme Court reviews the appeals of judgment from the High Court Division. They have separate functions and separate appointments are made to each. The Subordinate Courts comprise:
a. The Civil Courts. In descending order of hierarchy, including the Courts of the District Judge, the Additional Judge, the Joint District Judge, and the Assistant Judge.
b. The Criminal Courts. again in descending order, including the Courts of Sessions, Additional Sessions Judge, Assistant Sessions Judge, Metropolitan Magistrate, Magistrate of the First Class, Magistrate of the Second Class and Magistrate of the Third Class and
c. The Special Courts and Tribunals. including–in relation to civil matters — the Administrative Tribunal, the Environment Court, the Family Court, the Juvenile Court, the Labour Court and the Labour Appellate Tribunal, the Money Loans Court, the Court of Settlement and the Taxes Appellate Tribunal, and – in relation to criminal cases — the Special Tribunal on Violence against Women and Children and the Special Tribunal for Speedy Trials.
Corresponding to 64 districts there are currently 64 district courts in Bangladesh. Only 64 courts are quite insufficient for 150 million people of the country. As a result, the pending rate of cases is very high. The cases trailed by formal courts are also very expensive. A very few rich people have capacity to fund the case battle and the poor who are majority in the country can not go to the district court and Supreme Court for justice.
Moreover, a case either in the district court or in the Supreme Court is a lengthy process. There is an abnormal delay in litigation in Bangladesh. There are thousands of cases pending in the Supreme Court. There is no available data as to how many cases are pending with the district courts throughout Bangladesh. It is said that under the present judicial process operating both in district and Supreme Court, number of cases awaiting trail or adjudication will take over 50 years to clear up unless some extraordinary is done immediately. Otherwise the situation of justice in Bangladesh will be equated with the famous saying “justice delayed, justice denied”.
To remove the problems of judicial governance mentioned above and to make justice delivery system more efficient, speedy, effective, transparent, accessible and affordable to the people in general, I propose the following reforms:
Four-tier system of judiciary. The existing two-tier system of judiciary may be converted into four-tier system. They, in descending order, are:
(i) Supreme Court at the centre.
(ii) The present High Court Division of Supreme Court may be decentralized to the division levels as independent High Court by upgrading existing 6 divisions into provinces. If not possible to create provinces, permanent Benches of High Court Division may be established in the division levels;
(iii) District court at the district level; and
(iv) Upazila court at the upazila level and the similar court in the metropolitan areas. This will serve two purposes. Firstly, upazila court will lessen the burden of district court and secondly it will act as the controlling and supervising authority of village level courts.
Advantages of Establishing Benches of HC Division in Division Levels
The following advantages can be derived from establishing Benches of HC Division in Division Levels:
a. It will make justice delivery system more efficient,
b. It will make judicial process speedier,
c. Justice delivery system will be more effective,
d. It will ensure the transparency in the process,
e. The judicial system will be more accessible and affordable to the general people.
f. Reduce the burden of huge no of cases from Supreme Court.
g. Help for the automation of the judicial system.
h. Ensure good governance and control over the district courts.
j. Create a lot of employment vacancies for the people of the area.
k. The economical and business condition of the division will also improve.
DISADVANTAGES OF ESTABLISHING BENCHES OF HC DIVISION IN DIVISION LEVEL:
a. If the whole judiciary system is decentralized then there is question that raises with the action are the quality and impartialness of the verdict.
b. There might be a scarcity of skilled lawyer and judges.
c. If we establish benches of high court in divisional level then political biasness can be taken place.
d. Lower courts will take advantages of having direct control over higher court.
e. In a district judge court first level verdict is given by the assistant judge and then if any party doesn’t get satisfied with the verdict then the party can appeal first time in district judge court then the joint district judge and district judge will review the case, and after that the case gets forwarded to high court after double trial, so its unnecessary to establish benches in every division level.
f. Number of unnecessary cases will be increased.
g. A new amendment needs to be added, so there will be an administrative and legal complexity as an amendment of the constitution will be necessary to establish high court benches in all the divisions’ level.
After reviewing the fact it can be clearly stated that establishing high court benches in divisional areas gets more weight. Because the advantages of the benches of high court in divisional level overshadow the disadvantages. In order to respond to the demand for equality of Justice and to make justice delivery speedy, effective, transparent, accessible and affordable to the people in general, it is an utmost requirement to decentralize the judicial system and establish permanent Benches of High Court Division to the division levels.
1. Asaaf. A,Mahmud. T. (2005) Cases in the Muhammadan Law of India, Pakistan and Bangladesh.Oxford publications,U. K.p-88
2. Haque. R (2001). Judicial Activism in Bangladesh: A Golden Mean Approach.United Publishers.Dhaka. pp 81-90
3. Riaz,A.(2005). Unfolding State: The Transformation of Bangladesh.Unknown Publishers.
4. Sirajuddin,A.M(2010) Muslim Family Law, Secular Courts and Muslim Women of India, Pakistan and Bangladesh.p-58.
5. Salekin,S.(2005) retrieved from http://www.supremecourt.gov.bd/rules.php