For Your information
Procedural Justice in the Supreme Court
A concern for new lawyers
Barrister Md. Abdul Halim
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laspecula.com |
Working on behalf of a Respondent in a Writ Matter
On behalf of the respondent or respondents you have two routes to take steps in a writ matter:
1. Filing a CMP (Civil Miscellaneous Petition for Leave to Appeal) or CP (Civil Petition for Leave to Appeal) to the Chamber Judge of the Appellate Division with a prayer to stay the direction, rule, status quo etc. This is because you have the right to file appeal against any order or decision of the High Court Division within 30 days to the Appellate Division.
2. Filing an application for vacating the order of stay/direction/status quo and also filing an affidavit-in-opposition in the same court which issued rule and gave direction.
The First Route: In the Appellate Division
This route is exceptional and I better discuss it on another occasion. My main focus would be on the second route.
The Second Route: Steps to be taken in the High Court Division
This second route is usual and should be a regular course of action. In other words, to prepare, file and then move an application for vacating the order of direction/stay/status quo granted by the court, following steps are to be followed:
(i) Filing Power: To vacate an order of direction or stay you have to file the application/petition in the same court which issued the rule and stay/direction. The first thing you need for this is a complete power signed by the respondent/respondents on whose behalf you will work. Then you need to file the power in the section.
(ii) Drafting: Now you need to prepare four copies of application exactly in the same manner as a writ application. However, a very important thing is swearing affidavit. If you are working for more than one respondent, all the respondents need to sign and swear affidavits. However, this can be done by any one of the respondents if that respondent is given a letter of authority by other respondents (letter of authority and power are not the same thing). Remember, if this is the case, then you need to annex the relevant letter of authority with the application so that the Commissioner of Affidavit is satisfied that the respondent swearing and signing affidavit has authority to do the same on behalf of the other respondents.
(iii) The Stage of Affidavit: Like the main petition all affidavits-in-opposition will have to be verified by the Commissioner of Affidavit and the same hassle you will be facing there as mentioned in my preceding article.
(iv) Filing in the Section: Once drafting of application for vacating stay is complete, you pass through all stages of a writ petition with regard to its filing. However, remember that even you have filed the application in the section and got a number, still the main task remains to be done. After filing in the section, the section will give you back the original copy of the application. Now you need to serve a notice to the Petitioner's advocate. Until you do this, you cannot file the application in the court.
(v) Serving a notice copy to the Petitioner's Lawyer: Now you have to serve the copy of the application to the Petitioner's lawyer. How do you do this? You or your clerk will take both the original copy and notice copy to the advocate of the petitioner or his clerk. The advocate or his clerk will write on the top sheet of the original copy, e.g. “received dated 24.04.2008”.
(vi) Filing in the Court: Once this is done, you can file the application in the open court. You do this during mention hour.
(vii) Tadbir: You will see that the irony of procedural justice in the Supreme Court will start here and most of us (I mean advocates, senior or junior) gradually become very competent in exercising these bad practices. Even if the court accepts your application to come up in the list, you will see that it is not on the list. But without bringing it on to the list you cannot get it heard and unless it is heard in the open court you cannot expect to get any substantive justice. When you ask the Bench Officers the reason of it, they will simply state that “some tadbir will bring it on to the list”. You will see this very open secret affair in every Bench. Thus if you can manage them, only then you will see that your matter is in the list; otherwise it may take ages to appear in the list.
(viii) Tadbir Again: Even if you have managed or persuaded the Bench Officers to bring it on to the list, still you may see that your application is at the very bottom of the long list and it remains every day at the very bottom of the list. In such a case it may not be possible for you to move the matter. What can you do? Give some handsome amount of baksis to those Bench Offices and you will see next day that your matter is on top of the list and now you wait and when your item is called, get it heard. There is another caution for you. Even if your matter is on top of the list, still the file may not be available and in that case your application will not be heard. Not only that, if there is any printing mistake like wrong year name or wrong party name, then file will not be available and you cannot get your application heard on the day and more importantly, this sort of mistake may be deliberately done by the Bench Officers. Remember, it is your responsibility to see if there is any printing mistake or if files for your application are available or not by asking the bench officers. You must do it before the court starts in the morning. If you find that the file is not available, make a search in the section with your clerk. Give some baksis to the people in the section and your file will come to the court.
(ix) Tadbir fails and mentioning in the Court: It might happen that even if you have given tips/baksis to bench officers, still you see that your application remains at the bottom of the list. This may be because your opponent has given yet bigger amount of baksis to the bench officers and they are not acting on your side. It might also happen, and don't be surprised, that the file of your application cannot be found in the section; it has just disappeared; cannot be found either in the section or in the court. How could this happen? This happens because of giving bribes to those bench officers or section people. They will do it deliberately and there would no point to wonder about. If your opponent gives some money to bench officers or section people, they will do this so that you cannot get the application heard and stay vacated. It is because of these bad practices done by bench officers and/or section people at the instigation of some lawyers and moneyed clients that you cannot keep commitment to your client; you cannot give justice to your clients; you and your clients will be thrown into endless sufferings. It is because of these bad practices that justice in the Supreme Court has been a very costly affair; justice is not meant for the poor.
The writer practices in the Supreme Court.
Bangladeshi laws are online now
All laws and regulations made as of October 20, 2008 can now be found online at the website launched by the Ministry of Law, Justice and Parliamentary Affairs . Laws of Bangladesh and the Bangladesh Code are avaialbe in both Bangla and English at www.bdlaws.gov.bd.
The Bangladesh Code contains all existing Acts of Parliament, Ordinances and President's Orders in force in Bangladesh. The website includes an Index book in chronological and alphabetical order, separately.
It comprises the earlier codified laws (1836-1938), which are updated and relocated in volumes 1 to 8 and partly in volume 9. The codified laws made between the years of 1939 and 2006 can be found in volumes 9 to 38. These laws include enactments that have been inherited from the past, dating back to 1836, promulgated by various authorities according to the Constitution in force at the relevant time.
By introducing the Bangla Vasha Procholon Ain, 1987, all laws enacted in Bangla are shown in volumes 27 to 38.
In the website Bangladesh Code is presented in Portable Document Format (commonly known as PDF) which has been developed to show electronically the laws, as it is, incorporated in the Bangladesh Code which was published in June 2007.
- Law Desk.
