।। Md. Rizwanul Islam ।।
In general, the research conducted by the legal academe in Bangladesh has not engaged with judgments as much as is the case in some other jurisdictions. However, that tradition is somewhat changing as more and more academic legal works in Bangladesh are showing a much keener interest in engagement with judgments. Even this weekly law page of The Daily Star would probably bear some testimony of the changing trend. However, there has been very little academic engagement in Bangladesh with the judgments of subordinate courts. This trend is a dismaying one as the study of judgments of subordinate courts may offer many insights which may not be apparent from the judgments of the Supreme Court (SC). Indeed, routine matters of life of citizens which are settled by the judiciary – bail petitions, marriage, divorce, inheritance and so many others are litigated in the subordinate courts. And very few of these cases would end up reaching the SC. And that should be the case to avoid the SC from being even more clogged by the long pile of pending cases.
By arguing that the judgments of the subordinate courts warrant much more scholarly attention, it is by no means submitted here that they hold the precedential value or the status identical to those judgment of the SC. The SC, a constitutional court of last resort, enjoys a status unlike any other in this country. The SC’s power of interpretation of the laws must be viewed through a prism that cannot apply to the judgments of subordinate courts. There are several important distinctions between the judgments of the SC and those of the subordinate courts. Firstly, constitutionally, only the judgments of the SC have precedent value. Article 111 of the Constitution states that “The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.” No comparable provision exists for judgments of subordinate courts in the country. The precedents of the SC have the law interpreting or in some cases, even the law-creating or law declaring effect. Some of the judgments may also have wider ramifications for the overall economic-political-social fabric of the country. By clear constitutional design, the judgments of the subordinate courts do not have this sort of impact/such a wide reach or effect. But as low profile or as limited impact they may have on the entire country, their importance cannot be ignored. Only studying them, many of the most recurring challenges that citizens face in our legal system may be discernible and hence, they warrant much closer scholarly attention.
Possibly, another less talked about area which would go a long way in facilitating greater accessibility of judgments (SC and the subordinate judiciary alike) is that of the publishing of the judgments on the respective websites of the courts. While some of the judgments of the SC are now posted on its website, they are still only a small fraction of the judgments of the SC. Indeed, presumably, unlike in the good old days, these days, most judgments are possibly written by using electronic devices, not the type-writers. Hence, even in logistical terms, there may not be too many hurdles in posting judgments online. As the Government is championing the cause of access to information, it would only be fitting that the judgments of the SC as well lower courts are posted on the respective websites of our courts. If resource and logistical concerns are lurking around, the Government should address them.
Some may raise the issue of privacy which may be a relevant concern in some cases. However, the point remiss that the accessibility of the judgments has little to do with the privacy of the parties. Ensuring the anonymity of the parties in the judgment of some sensitive cases are an important issue and this author has argued for more attention to that issue in a prior essay in this page, and need not repeat the same here (for reference see, Md. Rizwanul Islam, ‘Protection of the identity of victims in judgements’, The Daily Star (Law & Our Rights), 29 Oct 2019). But in no case should any such concern stand in the way of easier, open access to the judgments of the courts, which are ultimately public documents. When they are accessible, it is probable that they would be engaged with more closely.
The writer is a Professor of Law, and a member, Center for Peace Studies at North South University.