Court corridor
Delegation of jurisdictions
Syed Gouseuzzaman Haideri Ali
All the Civil Courts are over-burdened with a backlog of cases in Bangladesh, and so is the case with the High Court Division of the Supreme Court. There must be a way out. The machinery of the civil justice should be more efficient and its load should be more evenly distributed. Therefore, in this situation, the High Court Division may delegate to and share some of its jurisdictions and functions with the Courts of District and Additional District Judges.
The High Court Division has already delegated some of its jurisdictions and functions to the District Courts but it can delegate some more. There are some jurisdictions and functions that can be shared with the District Courts and there are some jurisdictions and functions that cannot be shared with any of the lower courts including the District Courts.
These different jurisdictions can be discussed under the below heads:
(1 which can be shared and are already shared with the District Courts,
(2) which are not shared and can be shared with the District Courts,
(3) which are not shared and should never be shared with any of the lower courts including the District Courts,
The jurisdictions and functions which should be shared and are already shared by the District Court
Revisional jurisdiction
The Revisional Jurisdiction is provided in section 115 of the Code of Civil Procedure and in section 435 of the Code of Criminal Procedure. The Civil Revisional Jurisdiction of the High Court Division of section 115 of the Code of Civil Procedure is shared by the Courts of District and Additional District Judges. The Criminal Revisional Jurisdiction of the High Court Division of section 435 of the Code of Criminal Procedure is shared by the Courts of Sessions and Additional Sessions Judges.
Companies jurisdiction
Companies Jurisdiction is provided in section-3 of the Companies Act 1994. According to this Act, the Court which has Companies Jurisdiction is the High Court Division. But the government may, by special notification in the Official Gazette subject to such restrictions and conditions as it thinks fit, empower any District Court to exercise jurisdiction under the Companies Act 1994. Therefore, it can be observed that the Companies Jurisdiction is also shared by the High Court Division with the District Courts.
The jurisdictions which are not shared but can be shared by the high court division with the District Courts
Banking companies jurisdiction
The Jurisdiction of the Banking Companies lies only with the High Court Division and is not shared by the District Courts. The Jurisdiction regarding the Banking Companies can very well be shared by the High Court Division with the District Courts. Section-61 of the Banking Companies Act 1991 provides that the government may constitute a tribunal for the acquisition of the undertakings of Banking Companies. The government may very well delegate the Jurisdictions and functions for the acquisition of undertakings of the Banking Companies to the District Courts instead of forming a Special Tribunal.
Admiralty jurisdiction
Section-3 (1) of the Admiralty Court Act 2000 provides that the High Court Division shall be the Court of Admiralty. But Admiralty Jurisdiction can be shared with the District Courts. Where the suits are of less value and are of less complicated nature, the High Court Division may delegate its jurisdiction to the District Courts to try those cases.
Writ jurisdiction
Writ Jurisdiction is provided in article-102 and in article-44 of the Bangladesh Constitution. It means any citizen has the right to move the High Court Division of the Supreme Court for the enforcement of fundamental rights that are provided in the Part-III of the Constitution. But the Writ Jurisdiction can be delegated to the District Judge too. It will not be unconstitutional as Article-44 (2) states “Without prejudice to the powers of the Supreme Court under article-102, Parliament may empower any other court, within the local limits of its jurisdiction, to exercise all or any of these powers”.
Appellate jurisdiction
Appellate Jurisdiction of the High Court Division can be shared with the District Courts and the Sessions Courts by increasing their respective Appellate Jurisdictions. According to section-21 of the Civil Courts Act 1887, an appeal from the Courts of Assistant Judge or Senior Assistant Judge lies to the District Courts. An appeal from a Court of Joint District Judge lies to the District Courts where the value of the original suit does not exceed 5 lac taka. When the value of the original suit exceeds 5 lac taka appeal lies to the High Court Division. The Appellate Jurisdiction of the District Court should be increased to unlimited amount instead of 5 lac taka. The District Court should be able to receive all the suits up to unlimited values from the Courts of Joint District Judges.
According to section 408 of the CrPC, Sessions Courts receive appeal from the decrees of the Courts of Assistant Sessions Judges, Metropolitan Magistrates or any other Judicial Magistrates of the First Class. But in any case, when an Assistant Sessions Judge passes any sentence of imprisonment for a term exceeding five years, the appeal shall lie to the High Court Division. The Appellate Jurisdiction of the Sessions Courts should be increased to sentences of 10 years of imprisonment from 5 years.
The jurisdictions which are not shared and should never be shared with any of the lower courts including the District Courts
Jurisdiction as to transfer of cases
Under article-110 of the Bangladesh Constitution, the High Court Division may transfer a case from any subordinate court to itself, where a substantial question of law is involved. After withdrawing the case, the High Court Division may either,
(i) dispose it to itself,
(ii) return the case to the court from which it has been withdrawn or
(iii) transfer the case to another subordinate court
According to section-22 of the Civil Courts Act 1887, the District Judge has the power to transfer appeal pending before him to any Joint District Judge, received from the Courts of Senior Assistant Judge or Assistant Judge. But this jurisdiction does not amount to or is equivalent to the Jurisdiction as to Transfer of Cases of the High Court Division, which is provided in Article-110 of the Bangladesh Constitution. The Jurisdiction of the District Court to transfer appeal can be explained as the power of distributing official functions, like any other establishment having the power of distributing official functions. Therefore, the Jurisdiction of Transfer of Cases is not shared by the High Court Division with the District Courts.
Reference jurisdiction
Reference Jurisdiction in civil matters is provided in section 113 and order XLVI of the CPC. The Reference in criminal matters is made to the High Court Division according to the General Rules and Circular Orders of the High Court Division.
Reference Jurisdiction means, when any court subordinate to the High Court Division finds that any substantial question of law is involved or is in doubt regarding any suit or proceeding, the subordinate court may refer it to the High Court Division for opinion or order for disposal of that suit or proceeding. So, Reference can be made only by a court. It can be made by the court on its own motion or on the application of the aggrieved party.
Supervisory jurisdiction
High Court Division has the Jurisdiction and Control over all the Courts and Tribunals subordinate to it. This jurisdiction is provided in article- 109 of the Bangladesh Constitution. This Jurisdiction is known as the Supervisory Jurisdiction of the High Court Division.
Therefore, the (i) Jurisdiction as to Transfer of Cases (ii) Reference Jurisdiction and (iii) Supervisory Jurisdiction should remain only with the High Court Division and should never be shared by any of the lower courts including the District Courts. These Jurisdictions are the matters of the higher courts.
Conclusion
The essence of the above discussion is that, when the High Court Division receives any matter through parties to the suit either in its original jurisdiction or from the lower courts for reconsideration, that jurisdiction can be shared by the District Courts. When the High Court Division receives any case directly from the lower court i.e. when the lower court itself carries the matter to the High Court Division and not the party to the suit or when it involves any court to court relationship, that jurisdiction should not be shared with the District Court.
Thus, the High Court Division can offload itself to a great extent by delegating some of its jurisdictions which are appropriate to delegate to the District Courts. Presently, the High Court Division is over-flooded with many kinds of cases. One of the options is to increase the number of judges in the High Court Division but the other is to delegate some of its jurisdictions to the District Courts. It will on the other hand increase the number of cases in the District Courts. This can be solved by the appointment of more Additional District Judges. Section 8 of the Civil Courts Act 1887 provides, when the business pending before any District Judge requires the aid of Additional District Judges for its speedy disposal, the Government with the consultation of the High Court Division may appoint such Additional District Judges as required.
District Judges are the officials of high position. Therefore, the government should take proper care to impart continuing legal and judicial training to upgrade their competence and elevate their status, so that they can assist the Judges of the High Court Division in more effective ways.
The writer is advocate of the Supreme Court of Bangladesh.
