Road to decentralisation of the High Court blocked
Muhammad Mamunur Rashid
Photo: Bd Lawsl24.blogspot.com
There is no provision for permanent decentralisation of High Court in the Constitution of Bangladesh. Even it is beyond the power of Parliament to amend the Constitution to decentralise the High Court permanently as the Appellate Division imposed limitation on its amending power. Therefore, the Parliament is itself unable to enact any provision to decentralise the High Court.
In June 1988, article 100 of the Constitu-tion was amended by the Parliament incorporating the provision for six permanent Benches of High Court for Chittagong, Sylhet, Comilla, Jossore,Rangpur and Barishal. The constitutionality of this amendment has been challenged in the eighth amendment case (Anwar Hussain Chowdhury vs. Bangladesh case). The Appellate Division consisting of four Judges declared the impugned amendment as void and ultra vires by majority of 3: 1. In this case, for the first time in Bangladesh, the Appellate Division has declared an amendment passed by the Parliament as void and imposed limitation on its amending power.
In deciding the constitutionality of the amendment, the Appellate Division followed the doctrine of basic structure of the Constitution, a judicial principle that some certain features of the Constitution cannot be altered or destroyed even by the two-third majority of the Parliament as the Constitution stands on these features. The impugned amendment was declared as void and ultra vires as it destroyed some of those features. But the Appellate Division could not reach a unanimous decision as to which features of the Constitution are basic, which are not. Shahabuddin Ahmed, J. has specified 6 features as the structural pillars of the Constitution, which cannot be amended by the Parliament. While Badrul Haider Chowdhury, J. observed that the number of the basic features of the Constitution, which are not amendable, is 21.
M.H. Rahman, J, in deciding the constitutionality of the amendment, stressed on the preamble. He regarded it as an entrenched provision that cannot be amended by the Parliament alone. He held: "if any provision can be called the 'pole star' of the Constitution then it is the Preamble and the impugned amendment is to be examined in the light of the preamble". He further held: 'one of the fundamental aims of our society is to secure the rule of law for all citizens and in furtherance of that aim Part VI and other provisions were incorporated in the Constitution. Now by the impugned amendment that structure of rule of law has been badly impaired, and as a result the High Court Division has fallen into sixes and sevens - six at the seats of permanent Benches and the seven at the permanent seat of the Supreme Court'. It should be mentioned that the fundamental aim quoted by M.H. Rahman, J. has been stated in preamble of the Constitution.
A.T. M. Afzal , J. , the only Judge among the four, has given a dissenting judgement rejecting the concept of so called basic structures and opined that the impugned amendment has not destroyed the High Court Division and therefore it was not to be ultra vires on any of the grounds urged.
In Indian subcontinent, the doctrine of basic structure was introduced by the Supreme Court of India in 1973. Before that, in 1967, a question has been arisen in the case Golak Nath vs. The State of Punjab in the Supreme Court of India that whether any part of the fundamental rights provisions of the Constitution could be revoked or limited by amendment of the Constitution? The Court held that amendments which take away or abridge the fundamental rights provisions cannot be passed. Six years later, in 1973, the fundamental rights became an issue again in the case of Kesavananda Bharati v. State of Kerala. This time the Indian Supreme Court consisting of thirteen judges overruled the decision passed in Golak Nath case and held by majority of 7: 6 that although no part of the Constitution, including fundamental rights, was beyond the amending power of Parliament, the 'basic structure of the Constitution could not be abrogated even by a constitutional amendment'. The fundamental rights provision was indeed one of those structures. Thus the doctrine has got a legal shape for the first time in the Indian constitutional jurisprudence. But there is still controversy among the jurists as to which features of the Constitution are basic, which are not. Even the Indian judges also could not reach a unanimous decision on this point.
By the way, in India, the fundamental rights of the people were threatened by the 24th amendment of the Constitution that was challenged in the Court and 'the doctrine of basic structures' has been invoked by the Indian Supreme Court to examine the constitutionality of the amendment. It ultimately upheld the people's interests safeguarding their fundamental rights. In Bangladesh, the doctrine was followed in a different climate, where article 100 has been amended by the Parliament to decentralise the High Court that was challenged in the Court and the Appellate Division applied this doctrine to examine the constitutionality of decentralisation.
Though the decentralisation of the High Court by amended article 100 could not satisfy the Appellate Division as to its constitutionality, but its beneficence and necessity probably could by no means be ignored. The amended article 100 facilitated the judicial system getting the High Court reached the doorstep of people. It made the High Court accessible and affordable for those people, who are poor, powerless, weak and indeed the large majority of the society residing away from the capital. These people were the beneficiary of this decentralisation as it has helped them to ensure accessible, speedy, easy and affordable justice widening the access to the High Court.
While one of the the fundamental aims of the State is to secure the rule of law for all citizens, the access to the structure of rule of law should be adequate, smooth and affordable to ensure that rule of law. Without adequate access to justice the rule of law is meaningless. It has been pledged in preamble of the Constitution that: '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' and for the furtherance of this aim, the Constitution has guaranteed eighteen fundamental rights for all citizens. The right to move the High Court to enforce any of these rights is also guaranteed by the Constitution as a fundamental right. In a country of 16 crore people, the High Court Division centralised in the capital city Dhaka is by no means adequate to avail this right. It seems to irreconcilable with the fundamental aim.
It doesn't matter to the rich that where is the High Court. They can find the way to High Court anyhow. But it does matter to the poor living away from the capital. In Bangladesh, the litigation costs in the High Court is very high particularly for those common people coming away from the capital. Most of them cannot afford to reach the High Court and as a result they are deprived of justice.
The decision of the Appellate Division is binding upon the Parliament and therefore, it will not enact any more provision to decentralise the High Court as it will affect those basic structures of the Constitution. Then, will the High Court remain centralised in the capital city Dhaka forever? Is the road to decentralisation of the High Court blocked by the majority judgement in the eighth amendment case?
The writer is Advocate, Judge's Court, Sylhet.