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Procedural Justice in the Supreme Court
A concern for new lawyers with fresh minds
Barrister Md. Abdul Halim
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laspecula.com |
Suppose, after the hearing of your writ petition, you've got rule and stay or status quo. Now you need to send notice of this stay or rule to all respondents through courts and if you cannot send this notice in appropriate time against a government body, which is normally made a party to a writ petition, the fruits of your writ hearing (the stay or status quo or rule), in other words, the fruits of substantive justice becomes completely meaningless as the respondents might, in the meantime do whatever they want to do against the petitioner. In other words, by pronouncing judgment, order, rule, status quo or direction a Bench of the Supreme Court just completes the task of substantive justice but realisation of this substantive justice remains in the hands of the Section people. There is no system of personal service in Bangladesh with regard to court matters. However, service through court will normally take time, like 15 days to a month. Again, if you manage or persuade Section people, you may serve this within two or three days, even on the same day. How can you do that? It all depends on how much you are ready to spend on the Bench Officers and Section people who are there to prepare and make ready all the court orders and they are paid by the government.
Getting the order typed and signed
Section people cannot be activated to make copies ready for service until and unless the Bench Officers get the order typed and signed by the Judges. Thus the first thing you need to do is to manage or persuade those Bench Officers so that they get the order typed quickly for the Section people to speed up process. You will see that most of the lawyers who get rule and/or stay on a motion day becomes very tensed and agitated to get their order typed by the Bench Officers and in that case they do not bother to lead competitive race of giving tips more and more to Bench Officers. In such a situation if you work for a petitioner who has paid you a little amount of money, you may leave the expectation of getting the fruits of stay or status quo; alternatively you will have to end up with empty pocket if you want to give justice to your client. Bench Officers are not the end of the initial game. Once the order is typed, it will be taken to the chamber of the judge by Ardali (personal attendant of judges) and if you do not manage or persuade that Ardali, it is less likely that your order will be placed before the judges. Once the order is signed by the Judges, it is again sent back to the Bench Officer for sending to the respective section. It is again Ardali who will take the file to the section.
Getting a certified copy
You need to follow the following four steps for the purpose of serving notice to the respondents and you need to follow the fifth step for the purpose of getting a certified copy of the order:
(i) A talabana form to be affixed with proper stamps (your clerk will get this typed on his own, as shown below);
(ii) An application to submit fee for service of notice to the Respondents (your clerk will get this typed on his own, as shown below);
(iii) A form of chalan to be filed up with appropriate fees for service (your clerk will collect this from the Section);
(iv) Photocopies of the Writ Petition (as many as the number of Respondents); and
(v) A form to apply for a certified copy of the court order (your clerk will collect this from the 'Form Section'; this is supplied free of cost but the people in the Section will not allow your clerk to get it without one or two taka).
Steps to be followed:
(i) Within 24 hours of the order, your clerk will have to complete the above first four steps. He submits talabana by affixing stamp (Tk. 4.00) on the application of talabana. To submit fees for service of notice to the respondents you need to file an application and secondly, you need to fill up a chalan with appropriate fees which will be received by the Cashier of the Supreme Court. While you submit talabana and chalan you must give copies (as many as the number of respondents) of Writ Petition too.
(ii) Once you have done the above, the Account Section will receive chalan and you will be given a receipt thereof from the Treasury of the High Court Division.
(iii) Once you get the receipt you go to the respective Section (Writ Section) where they will record the same against the number of the Writ Petition in the registration book. They will arrange sending the court order for service through the court messenger (here you or your clerk's job is completed as far as service of notice is concerned).
However, this is not the end of the story; actually the story of sordid picture will start from here again. There are a number of people who would be involved in preparing and processing certified copy and serving process and the order would be as follows:
Steps to be followed after getting the order ready:
(i) Receipt: The UD (Upper Division Clerk) will receive the order (from the Ardali who has taken the original copy of the order signed by both the judges along with the first and second copy of the Writ petition).
(ii) Distribution: The UD will distribute the work of typing to a typist clerk.
(iii) Typing: Typing will be done by the clerk assigned for the same; after typing he will also sign at the bottom of the copy.
(iv) Comparing: Comparing will be done by the compare clerk who will also sign at the bottom after so compared.
(v) Copy ready: That a copy is ready is declared and signed by the UD (this signature will appear not on the copy of the typed order but on the application for certified copy).
(vi) Signature: There must be signature on the back of the copy by the Superintendent who is a second class gazetted officer.
(vii) Certification: Signature and seal by the Assistant Registrar, who is a Commissioner of Affidavit; he will certify the copy; after all these the copy of the order is duly certified.
(viii) Seal of the Supreme Court; this is the round seal given on the back of every page of the copy.
(ix) Delivery or service to the respondents through court messengers or handing over the certified copy to you or your clerk (remember the application will not be given to you; only the certified copy of the order will be given to you).
The above steps may be a matter of one month and again, by managing or persuading the Section people you may get all then and there. You will realise very soon that in the court corridor justice is for those who can pay a lot. The more you will spend, the quicker will be the Section people for your work. When you enter into the section for anything, you will see how their eyes are blinking for money or illegal gratification. This is an attitude which is ingrained in the culture of our court corridor everywhere in the country resulting in the deep morass into which our judicial system has sunk.
The writer is practicing in the Supreme Court .
