THE PRINCIPLE OF FINALITY

I had the privilege of perusing an article titled 'To introduce the principle of finality: An urge of a judge' written by Mr. Sekander Zulker Nayeen, a learned Joint District Judge of Bangladesh Judicial Service which was published in the Law & Our Rights of The Daily Star on 24 January 2017.

The article was well-written, and thought-provoking. But the underlying legal issue that has been thrust upon invites some impartial and objective review.

The backlog of cases in Bangladesh has become a buzzword in the legal regime of Bangladesh. The Hon'ble Chief Justice of Bangladesh, Mr. Justice Surendra Kumar Sinha has been the spearhead in lessening the backlog of the cases and his endeavours have been appreciated all over.

But should we, really, introduce the principle of finality as a panacea of reducing the backlog of cases, or should we endeavor to uplift the standard of the functionaries of the administration of justice?

The writer of the above mentioned article rightly stated that the present justice system allows appeal, revision and review of a single dispute in different forums which multiply the number of cases. If we dug deeper, we may see that review is hardly used by the litigants. Other two, revision and appeal are the indispensable parts of the civil litigation. Revision is meant to examine the propriety of a particular order of the trial court by the higher court and appeal is meant to examine the propriety of the decree of the trial court by the higher court (with many exceptions which are not mentioned here). If these inalienable rights of litigants are taken away just for the sake of reducing the backlog of cases, then the proverb 'justice hurried, justice buried' will have its play.

Practically, a District Judge, being the chief judicial officer of a district is over burdened with not only manifold legal duties, but also with many administrative functions. This phenomenon, in most of the occasions leads the District Judge sending the appeals or revisions to the courts of Additional District Judges and in many cases to the Joint District Judges as well (in case of the decrees of Assistant Judge or Senior Assistant Judge).  Now, if the principle of finality is introduced, it means that one's fate of life or property may be stuck within the purview of court of Joint District Judge, whereas the verdicts of the District Judge in the original matters (arbitration, trademark, summary suit etc.) shall be subject to evaluation by the High Court Division.

We must not forget that the appeals or revisions are not, as a matter of procedure, automatically admitted in the High Court Division or even in the District Judge Court. There are 'motion hearing' and 'admission hearing' respectively to see the prima facie merit of the appeal and revision.  So there is a filter in this process and it has passed the test of time.

The good intention of the aforesaid writer is beyond question.  But in the name of lessening the backlog, if the doors of higher jurisdiction are closed then in reality it may cause injustice rather than serving justice.

Let me remind Late Mr. Mahmudul Islam, who in the preface of his celebrated commentary of CPC aptly urged to excel and upgrade the efficiencies of administration of justice, rather than introducing any drastic change overnight. 

The writer is an Advocate, Supreme Court of Bangladesh.