More power to lower courts to settle civil cases hangs in higher court

An initiative to increase the lower court's power in order to avoid overburdening the High Court with cases has not come into effect in three years. 

The government amended the Civil Courts Act in 2016 to extend the financial jurisdiction of lower court judges in settling civil cases. The High Court, however, stayed the amendment after two writ petitions were filed that year challenging it. 

Financial jurisdiction of district judges was increased to Tk5 crore from Tk5 lakh by amending the law. The amendment thus allowed these judges to dispose of cases involving disputes over transactions up to Tk5 crore or properties equivalent to that amount. 

District assistant judges and senior assistant judges also saw their financial jurisdiction increase.

The Supreme Court administration sorted 40,000 cases to send to the lower court after the amendment, but the process was halted in the wake of the High Court stay order. 

The High Court received around 40,000 more cases and appeals in the last three years, and the number is increasing, the Supreme Court administration said. 

The state has not appealed against the stay order, nor has it heard the ruling on the writ petition that challenged the validity of the law either. 

ATM Fazle Kabir, former justice of the High Court and a member of the Law Commission, told The Business Standard that the amended law is quite modern. 

He said that the law, if implemented, would reduce the sufferings of justice seekers. 

"At present, a person has to come to the High Court to lodge a case or appeal involving more than Tk5 lakh. If the law comes into force, appeals within the Tk6,000-Tk15 lakh range to be settled by assistant judges of the lower court will be settled through district judge courts instead. Such courts will also be able to settle appeals exceeding Tk15 lakh and up to Tk25 lakh that were to be settled by senior assistant judges," explained Kabir. 

He said such courts would settle cases involving up to Tk5 crore given to district judges, and appeals for these cases would have to be filed at the High court.

The Law Commission member also said the state should be conscious about the High Court's stay order on the amendment.

Law Minister Anisul Huq told The Business Standard that the Civil Courts Act was amended to reduce pressure on the High Court, and to ease the disposal of cases in order to provide justice. 

"The government will start proceedings against the High Court stay order soon. There is no alternative to the amendment if we want to keep the High Court from being overloaded with cases," he added. 

Attorney General Mahbubey Alam told The Business Standard that the state has not appealed against the High Court order yet. 

"The hearing will be initiated after October 10, when the Supreme Court vacation ends," he added.

Barrister Saidul Alam Khan, who filed one of the writs challenging the amendment, said, "Many justice seekers will be harmed if the amendment takes effect. That is why we filed the writ petition. The law has been made effective retrospectively which is unprecedented in any country."

Refuting this argument, former law minister Barrister Shafique Ahmed said: "Section 4(3) of the amended act says if a partial hearing on an appeal or proceeding that is sub judice in the High Court division is done, then it cannot be transferred. However, parliament can make a law effective retrospectively." 

(The official English version of the amended act has not been released yet, which is why the explanation of Section 4(3) above was paraphrased.)

Barrister Saidul Alam Khan argued that the High Court division judges still have the jurisdiction to settle cases involving the minimum limit of Tk6 lakh, while it is Tk5 crore for district judges. 

"So, the High Court needs the jurisdiction of cases involving over Tk5 crore first," he added.  

Barrister Rashedul Haque, who filed the other writ petition, told The Business Standard: "I do not know whether the state has taken any decision to appeal against the High Court stay order."

In reply to the question why he petitioned against the amendment, the lawyer said: "The executive division amended the law without consulting the Supreme Court. I challenged this." 

He said the amendment could amount to interference in independent judiciary, and it contradicted the spirit of the Masdar Hossain case.

"Also, the law was allowed to be effective retrospectively, which is not legitimate."  

When asked, Barrister M Amir-ul Islam, the lawyer of the Masdar Hossain case, told The Business Standard: "None of the orders or the verdict made in the Masdar Hossain case mentioned taking opinions of the Supreme Court or the judiciary to enact such a law."

He said the Masdar Hossain case verdict recommends consulting with the Supreme Court to make any provision or policy regarding conduct for judges or their salaries. 

Sources said around 15,000 civil cases are currently pending at the Appellate Division, and almost 97,000 at the High Court division. 

Also, some 15 lakh civil cases are under trial in the country and the number is on the rise.

Barrister M Amir-ul Islam said the state should start court proceedings against that High Court stay order as soon as possible. 

"The amendment is necessary to ease the delivery of justice in civil cases," he added.