Military ruler Ershad made two fundamental changes to the constitution through the Eighth Amendment. One is Islam as the state religion and the other is setting up a High Court bench outside Dhaka.
Earlier, General Ershad established 6 benches of the High Court Division outside Dhaka by a military order on May 8, 1982. Later, in order to make this system permanent, 6 permanent benches of the High Court were formed outside Dhaka by amending Article 100 in the Eighth Amendment of the Constitution on June 7, 1988.
All parties against Ershad started a movement against Islamization of the state religion. Awami League, BNP, leftists and even Jamaat-e-Islam protested against Ershad’s misdeeds.
On the other hand, country’s famous lawyers protested against Ershad’s Eighth Amendment. At one point, they filed a writ against the amendment of Article 100, i.e., the transfer of the High Court bench outside Dhaka.
Against the state religion, senior lawyers did not go to court over it. Interestingly, the High Court Division Bench declared the transfer portion valid and dismissed the lawyer’s writ. The High Court also wanted to have a permanent bench outside Dhaka.
However, the Appellate Division overturned the judgment of the High Court and declared the amendment to Article 100 of the Constitution invalid. As a result, the High Court transfer proceedings were cancelled.
The countries top lawyers did not take the state religion issue to court within the Eighth Amendment. They went with only the part relevant to their interests i.e. with the amendment of Article 100.
Considering the public interest, the matter of transfer of High Court bench was very important. Because in this amendment it is said to set up 6 permanent benches outside Dhaka, Rangpur, Sylhet, Chittagong, Comilla, Jessore and Barisal. Earlier, the trial in these division benches of the High Court also started on the military announcement.
Moving the High Court to 6 regions of the country through the Eighth Amendment was a prudent decision. Today there are 5 lakh cases pending in the High Court and there is no sign of breaking the deadlock. If there was a bench of the High Court outside Dhaka and the cases of the respective areas were only disposed of, then the cases would not have been in the grip of confusion.
Eminent lawyers had argued in the hearing of the writ petition that shifting the High Court out of Dhaka would spread judicial corruption at the field level. This cannot be an argument. If you want to do corruption, it is possible at the center and at the field level. He who is honest is honest everywhere. He who is dishonest will be dishonest everywhere. For the past few years, 3 Judges of the High Court have been prevented from judging due to corruption. What does this prove?
Apart from this, there are district and session Judges in each district. The High Court is the Court of Appeal. The main work of trial is done in the district and sessions Judge Courts. People must get justice in a court where the maximum penalty for crime is death. People must have faith to that district and sessions court. If there is no question about this court, then there should be no question if the High Court is moved outside Dhaka.
But with this silly argument, the Supreme Court dropped only the high court transfer part of the Constitutional amendment. The interests of litigants and common lawyers were not met. It can still be said that some prominent lawyers did not want to go out of Dhaka to handle the case or because they were afraid that their case might be strained.
Eighth Amendment amended Article 100 of the Constitution. Where 6 permanent benches are said to be set up outside Dhaka. By cancelling it, Article 100, as it is currently in force, also states that the permanent seat of the Supreme Court will be in the capital, but with the Approval of the President, the sessions of the High Court Division can be held in other places or places that the Chief Justice may determine from time to time.
In other words, although the constitution gives the Chief Justice the authority to send sessions or benches of the High Court division outside Dhaka, it never happened in practice. No Chief Justice has exercised this jurisdiction. The present Chief Justice Hasan Foez Siddiqui took responsibility and assigned 8 judges of the High Court Division to monitor the cases of 8 Divisions.
A notification from the office of the Registrar General of the Supreme Court on January 27, 2022 informed about the monitoring of Subordinate court cases.
The Chief Justice has constituted eight Monitoring Committees for Subordinate Courts by nominating eight judges of the High Court Division in eight divisions. At the same time, eight judicial officers have also been given the responsibility for secretarial support. These judges monitor the cases in the Subordinate courts of the departments concerned.
It may be an administrative directive of the Chief Justice. With this directive, he could have constituted the High Court bench with the approval of the president where they could not only monitor the cases of the subordinate courts but also dispose of the cases of the High Court themselves. Common lawyers and litigators still favour the High Court transfer portion of the Eighth Amendment.
General appeal
The cases will be heard at the divisional level where the high court bench will be set up. Only the cases in the area of that administrative division will be disposed of by the bench of this division.
Benches of writ jurisdiction may be centrally located. Besides, some more important jurisdictional cases, including death references, may be left centrally for trial. If you can do this, the case will be disposed of quickly. Human suffering will also decrease. Not only that, the pressure on the capital Dhaka will reduce, the traffic congestion will reduce. People’s expenses will decrease. Now, if a litigant from Panchagarh or Sunamganj comes to the High Court, he has to pay several thousand Taka for traveling to Dhaka, accommodation, food and Transportation. There are other issues including Lawyers’ fees.
It is necessary to establish a permanent bench of the High Court outside Dhaka by repealing the repealed part of the Eighth Amendment or bringing a new amendment. Until the Amendment is made, the Chief Justice can Constitute a High Court bench outside Dhaka with the approval of the President in accordance With Article 100.
Considering the number of cases, the population, the condition of the capital and the financial condition of the people, it is considered necessary by ordinary lawyers and litigants. There is no alternative to shift the High Court bench as per the need of time to reduce the congestion of cases and to reduce the suffering of the people.
Shankar Maitra is a Senior Journalist