Law

Proposal to amend the CPC 1908 to introduce the right to lodge a caveat

Problems With Existing Law & Justifications For Reform:

Legal practitioners and litigants in general face the seemingly-perennial problem of delay in courts everyday. As has been discussed by many before, frivolous litigation is a core cause for such delays. The Law Minister’s encouraging comments and commitments to reducing delay in courts must be commended. I have from my practice faced a problem when my counterpart, being the defendants in Title Suit no. 327 of 2004 preferred to file Civil Revision nos. 3962 of 2007 and Civil Revision no. 4606 of 2009 in the High Court Division against an order of the trial court rejecting the defendant’s application for rejection of plaint under O7 R11 of CPC made on two separate occasions on very similar vexatious and frivolous grounds. In another related case being Title Suit no. 352 of 2005, the same defendants preferred to file Civil Revision nos. 3962 of 2007 and Civil Revision no. 4606 of 2009 on the self-same grounds as above. In all the occasions, the applications under O7 R11 as well the ensuing Civil Revisions were decided to have been without merit and was decided in favour of my client. In my humble submission, it is clear that the applications and the Civil Revisions were filed with the ulterior purpose of delaying the disposition of the aforementioned Title Suits. The High Court Division, without any intimation to the Respondents (in this case my clients), granted Rule and stayed the proceedings of the aforementioned Title Suit till the disposition of the Civil Revisions in all the cases.

As applications brought under the revisional jurisdiction of the court pursuant to Section 115 CPC are discretionary upon the court to admit, the Law of Caveats could have prevented the aforementioned delay in the Title Suits and therefore merits discussion here. This law is absent in our Code of Civil Procedure. India has amended its Code of Civil Procedure to incorporate this law in 1996. It has been frequently seen that when a litigant loses a case in the lower court he takes the matter to the higher court and obtains a stay order without the winner of the case being given the chance of being heard in the matter. Caveat is an application made by a party addressed to the court to allow the party to be heard at the time that the opposing party may approach the said court to obtain an ex-parte order in its favour from the court. Caveat applications ensure that both parties are heard by the court at the time that the case is considered for further legal process. This in itself minimizes frivolous cases sent to the higher courts on flimsy grounds where the only objective of the petitioner is to achieve delay. It is to be noted that a system of filing caveats in matters brought before the Appellate Division is already provided for and allowed by the High Court Rules.

Suggestions:

As to possible ways to reform the law, the Indian Act no. 104 of 1976 which has incorporated necessary amendments to the Indian Code of Civil Procedure 1908 (As amended) may be considered. By dint of the aforementioned Act of 1976, a new Clause no. 148A was incorporated into the Indian Code of Civil Procedure 1908, which is as follows:

“148A. Right to lodge a caveat:
(1) Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be, made, under sub-section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
(5) Where a caveat has been lodged under sub-section (1), such caveat shall not reman in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.”

(The write-up above was submitted by me to the Law Commission on 04.09.2011 seeking to draw their attention to the matter and inviting them to propose necessary steps to the legislators in this respect. I am yet to hear from them regarding this.)

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Law

In search of Dumbledore

For the cover of the latest edition of his popular book called Constitutional Law of Bangladesh, Mahmudul Islam Sir, who is a former Attorney General of Bangladesh, chose a tastefully grim and grey picture of the Supreme Court building taken against the backdrop of an overcast sky. In his forewords to the edition, he mentions those dark clouds as he laments the present state of the constitution and how it is being practiced and applied.
The practice of law for a junior as a first generation lawyer can perhaps be compared to that of the travails of a stray puppy abandoned in the streets at birth. If it manages to survive, the puppy will not travel much, but will rather concentrate all its efforts into acclimatizing and habituating itself with the surroundings of the street he was abandoned in. It will try to claw through bullies, ward off and avoid lurking dangers and meal through leftovers in a desperate attempt to, over time, be accepted by, ironically, the bullies among it’s own species. Just as the abandoned puppy hopes in vain to find the caring shelter of a guardian, a junior lawyer desperately seeks the mentoring guidance of a senior.
Many junior lawyers I know working under seniors are still scourging around for that elusive mentoring guidance.
For my part, I was not lucky enough to be anchored under a senior for the better portion of my life as a practicing lawyer. Perhaps because I as a first generation lawyer did not realise how big a role they play shaping a junior’s professional and personal life. It naturally came to me in the beginning to regard my senior as merely my employer, until I slowly realised that they may mean so much more.
In a candid session that I once had with Anisul Huq Sir, he told me that a senior not only sets your direction in your professional life from the get-go, but also leaves his footprints on how you go about that path for the rest of your life. That the senior and his practice lives in through his juniors, that he is in essence a reincarnation of the professional life of Shahid Suhrawardi who mentored his father being the Late Advocate Serajul Huq. That others who we know to be unscrupulous in their trades are still carrying out the lessons of practice that were laid down before them by their respective seniors.
He told me that his success in politics is due to his success in the practice of law, and his success in politics shall never define his success in the practice of law.
That candid session stayed with me. I could see an imprint of the few seniors I have worked with embedded in the way I think in a manner I did not see before. It also brought to the fore one of the only two regrets that I have over my professional life. That regret is that I never got an opportunity to work with Mahmudul Islam Sir yet.
The tales that I have heard about Mahmudul Islam Sir from all around are stuff that legendary folklore is made up of. I have, for instance, heard stories of him refusing to accept (and indeed, returning!) fees paid in excess of what his charges are by insistent clients. Such honour is above everything I have seen in the legal profession. The one time I wanted to hire him for a senior brief, I took his chamber’s phone number off the net and called directly without any reference, expecting to fix up an appointment with Sir with an assistant or a clerk. I was bewildered for a second when Sir himself picked it up, and asked me about the case. After hearing it, he affectionately called me “bhai”, politely informed me that he does not take any High Court briefs as he has confined himself to practice in the Appellate Division only, and pleaded with me to seek another senior. After noting the disappointment in my voice, he spent another 3 minutes over the phone giving me directions about how to go about in the case, which bench to take it before and who to seek for further guidance. I was humbled by the time I put the phone down. He didn’t need to do that.
Many seniors of his stature won’t even have acknowledged me as a self-respecting human, much less a lawyer.
Being the vociferous deviant from and passionate arguer against the traditional sole-practitioner style of legal practice, I have always regarded Sir to be the epitome of that style of practice. He makes me want to let my ideals and morals be my sole driving forces through the pathways of law. He makes me want to romanticise law and write lofty novels on the nobility of this trade, something that I firmly believe has been long dead. Hearing about his life is to me like dipping my head into and losing myself in Dumbledore’s Pensieve. Through his work and books, he has left an indelible impression in every Bangladeshi lawyer’s life, and through his ideals and morals, in many Bangladeshi’s hearts. Certainly mine.
The silver linings in those black clouds have not disappeared.

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I feel patriotic

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You may be delirious with congratulating Sri Lanka and India tonight, for they are champions in the game. You may be starting your celebrations in victory or feeling sorrowful in defeat, for your team today either won or lost. But in doing so, you may be ignoring the real champions of the game tonight.

Real patriotism does not arise on face value, as it so often tends to do in the midst of the disillusionment that prevails. It is not a hollow box with a pretty packaging, as it so often tends to present itself nowadays. That box must be filled with substance in order for patriotism to be not just about the packaging. A nation must reassure its subjects of its substance in order to not just merit, but legitimately demand, patriotism. It is not a free commodity, but rather comes at a price, at sacrifice, at efficiency. It comes in achievements.

Tonight presents me with an opportunity to be patriotic, to lovingly refer to the land I tread as my motherland, and to scream at the whole world in silence in celebration of our achievement. If you failed to notice properly, Bangladesh just successfully, regally and efficiently organised one of the very biggest tournaments in the game of cricket. And we did so with our houses full. Absolutely full. All tickets were sold, all seats were filled, all eyes were on the game and all courtesies were extended to the players. It was no mean feat if you consider the empty seats you saw during the last few ODI and T20 World Cups that you may have been privy enough to witness. We roared with every boundary. We groaned with every missed opportunity. Unless the game was against Bangladesh, we made no side feel any lack of support. Off the pitch, some of us halted in our commute almost everyday to make way for the players and officials to commute. We saw Dhaka wear glitters. The government did everything that could possibly be done to ensure that the tournament went on smoothly. And it did. Oh yes it did. And I don’t say it out of relief that was pressing to come out at the end, but say it out of pride and humility that comes out of being reassured of the confidence that I had in us that some others around the world lacked.

Spare a thought for us. Bangladesh. It will be utterly unfair to focus just on our hosting of the T20 World Cup. You are reminded that we were simultaneously hosting the women’s T20 World Cup in Sylhet too, and though that was not as glitzy as the one tonight, primarily because of its lack of viewership compared to the men’s T20 World Cup, it was just as successful in every aspect. I have heard of people travelling to Sylhet to watch the games. The facilities were excellent and the stadium on offer was world-class. Only a week prior to the commencement of the T20 World Cup, we successfully hosted the Asia Cup, which is one of the other biggest tournaments in the international cricketing calendar. If this is not enough, we hosted the Sri Lankan team on a full blown international tour of Bangladesh just before the Asia Cup.

A handful my friends. A handful. Not many nations will be able to pull these off back-to-back, and a fewer yet will agree to do so. Bold Bangladesh. Brave Bangladesh. A long salute to those who run cricket in our country today, for they jumped in cold and painstakingly convinced the cricketing world that we will be able to do it, and then topped it off by actually doing it. All for us, you and me, and all for this country and cricket the world over.

We can now host the biggest tournaments. Because we have what it takes. And we generate money. A lot of money. Enough to satisfy the pockets of the Big 3, the ICC and the rest of the cricketing world. We have a case. Not just a business case, but that too. We have made our submission before the world community with our efforts the last few months, and tonight, we laid a claim on the verdict.

In my loving eyes, the champion of the night is Bangladesh. And I feel patriotic.

 

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Law

A Tale of the “Gangway” and the Speedy Trial Act

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The first part of our tale involves two ancient red-bricked buildings that stand tall amidst the chaotic hymn of Dhaka Judge Court Premises near Shadarghat that are separated by a princely courtyard between them. The buildings are home to the courts and offices that make up the bowels of the judicial system of Dhaka, where millions of people flock to everyday to claim their due shares of justice. In a rare display of sympathy towards the plight of the lawyers who operate there, someone somewhere constructed a corridor between the second floors of the two buildings to ease commute to and fro. The inauguration of the corridor was marked with a regal program that was attended in chic and fashionable attires by Mr. Lutfozzaman Babar, who was then the much-celebrated and powerful State Minister for Home Affairs of the government. What a contrast it was the next time we saw Mr. Babar on that corridor in 2011, when his haggard and abused body, shackled like a convict, was being dragged through by two of the very policemen he used to command.

Fate, more often than not, is humbling.

The second part of our tale is about The Law and Order Disruptive Crimes (Speedy Trial) Act of 2002, more commonly known as the Speedy Trial Act, which was enacted during the tenure of BNP-led 4-party alliance government with the aim of accelerating trials only for offences that disrupt law and order by confining the said trials within the finite procedural boundaries of summary trials. Such offences include extorting or toll-collecting, blocking or obstructing vehicular movement over land, air or sea, intentionally damaging vehicles and properties, snatching and committing robbery, creating fear, terror, indiscipline or chaos, tender manipulation, or obstructing government employees in their duties by way of threats. The said offences are also made cognizable, meaning that the police can arrest anyone accused of such offences without any prior warrant. The court has the power to award any sentence from 2 to 5 years rigorous imprisonment along with fine for these offences, and moreover has the power to direct the accused to pay damages to property owners for any damage caused to their property.

While the Act received nothing but plaudit from general onlookers upon its enactment, Awami League, being the main parliamentary opposition at the time together with other sceptics saw the possibility of the same being abused to thwart political opponents. Nevertheless, their concerns were not heeded and the Act was promptly put into implementation. Speedy Trial Courts were set up across all districts and metropolitan cities, which, one must be mindful, are entirely distinct from the Speedy Trial Tribunals that were setup under the Speedy Trial Tribunal Act 2002, which is an altogether different piece of legislation made for a different purpose that is not a part of the tale.

The Act can be misleading in what it says about the timeframes to be observed for completion of trials. The Act says that the police shall produce any accused before the court within 24 hours of his arrest along with a First Information Report and will complete all investigation and submit charge-sheet (or final report) within 7 days thereon. If the accused is caught red-handed, then the court shall complete all trial proceedings within only 30 working days from receiving charge-sheet, and if not, within only 60 working days. You would think that these timelines are binding, will you not? Think again. In deciding the issue, the High Court Division held that because the Act does not provide for any consequence in the event of failure to comply with timelines, the time limits in the Act are NOT mandatory, but are rather just directions [16 MLR 2011 (HC)], 55 DLR (HC) 636]! The last time we checked, there are over 295 cases filed from 2011 to 2014 that are still awaiting disposal in Speedy Trial Court no. 5 in Dhaka alone, and scores more in other Speedy Trial Courts elsewhere around the country.

What then was the purpose for the Speedy Trial Act, which was enacted to ensure the speedy disposal of certain criminal cases but fails and only makes a lame attempt to do so?

The more the law was put to use, the more it became apparent to everyone that most cases filed under this Act are against people who are engaged in opposition politics, people who were engaged in committing political violence. This was true regardless of who was or is at the helm. Even though Awami League was against the Act when it was first put to use, the reversal in their position also reversed their stance on the Act as they extended the tenure of the Act firstly in 2010, firstly by two years till 2012, and secondly in 2012 by a further two years till 2014. Departing from the norm of increasing the tenure of the Act by two years, the Ministerial Cabinet recently on the 17th of February 2014 decided to extend the effect of the Act by a further 5 years till 2019. The Act that the prior BNP-led four-party alliance used to stifle its opposition, the implementation of which was partially overseen by Mr. Lutfozzaman Babar, was now turned on them. Tit for tat.

The common man is now under no illusion that the Act was a weapon to stifle political opposition. We however personally spare no sympathy for those who commit violence, whether in the name of politics or otherwise, and for those in the opposition camp who choose to resort to violence. What we do regret is the apparent lack of its exertion on offenders who support the party in power.

We end the tale with a small fact. The corridor that links the two buildings in the Dhaka Judge Court premises is called “the Gangway” by the lawyers who use it.

Co-authored by: Syed Jawad Quader, Barrister and Mithun Mazumdar, Advocate 

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Law

Where is the bar now?

I am saddened, but not shocked. I lament, but am not astounded.

I think both lawyers and journalists are expected to be made up of the best intellects a country or society has to offer. We both have so much in common. We both make up the moral compass of a nation. We both transact in the currency of expression. We both build our reputations on integrity, honesty, impartiality and accuracy. We both make a work of art out of the smallest of details to paint the biggest picture.

What happened today before the High Court Division bench of Mrs. Naima Haidar, J and Mr. Zafar Ahmed, J, where lawyers and journalists fought each other, is just a mere picture of where we both have landed ourselves in. Together. That too on the first day of the Supreme Court Bar Association elections.

Let me introspect at the outset and think about those two fateful days in December, when government forces used water-canons on lawyers of the Supreme Court and painted its gate pink, when thugs and goons ran down the gates of the Supreme Court and ran amok in its premises, mercilessly beating down lawyers of the Supreme Court, both male and female, in broad daylight, when people who will never be able to spell a word threw open their flies and flashed their manhood at the minaret of the Supreme Court, when they set the court on fire.

What did we as lawyers do to establish our dominion over the court, to use the law to bring the perpetrators to justice, to protect the image and dignity of the very establishment that makes us what we are, to do ourselves justice?

Nothing.

What did the establishment do to protect its own foot soldiers, to thump its own superiority over injustice, to protect the promise it made to the constitution and to resurrect the supremacy of law over the lawless? What did the mother do to protect and safeguard its own children?

Nothing.

On that day, a signal was sent out that lawyers can be beaten up, even inside the highest courts, without having to pay a dime for it and that we as lawyers are all OKAY with it, so long as we can resume business as usual.

Well, fair warning. It is never going to be business as usual again, unless we respond to the moral duties we owe to the very establishment that feeds us.

The court is a lawyer’s workplace. It’s our holy shrine. Many of us spend more time in courts that they do in their own homes. We should not ever hold it in low esteem, or allow someone else to do the same. For allowing this is akin to losing our dominion over our own home, or a place that is perhaps even more sacred.

As for journalists, we came to know how much they respect the courts from their role in Shahbag, where they threw their support behind a group of people who openly disrespected, discredited, defied and protested against a verdict of a court. A lot of us were unabashedly okay with it then. Are they all okay with it now?

What actually does surprise me is how everyone continues talking the talk about how supreme our courts and our laws are, but do nothing when those very virtues get attacked.

It all boils down to one simple introspective question: What more did we expect?

Where is the bar now?

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Heroes of Savar

I just came to know that all the employees of the pharmaceutical company where my wife works at, Techno Drugs Limited, have requested their management to deduct 1 day’s salary from them all and donate it to the cause of supplying medicines to Savar. This is an unparalleled gesture of assistance and solidarity to the victims of the Savar tragedy. I cannot fathom the words to describe how humbling this is to me. If I had a cap now, I would lay it down low for them all.

Techno Drugs Limited being in a position to assist in this tragedy has supplied a big supply of medicine and have accumulated medical support teams at the ground and are actively assisting in the treatment of the victims. All without any photo-op, without any promotional activity to go along with it, without any poster-boy and without them mentioning this. Just the nameless, faceless and thankless extension of their hands of support.

This is just one of the organisations and persons who have gone on selflessly to help. Just one of the organisations and persons who have reacted humanely to the worst of human tragedies. To all those nameless, faceless organisations and persons who are helping for the betterment of the victims on the ground selflessly and thanklessly, I raise a glass to you all. You incite hope in the land where hope dwindles. You shine the light at the end of the tunnel no matter how far away that end may be. You are to us what Batman was to Gotham City. You fill us with humility.

You fill us with pride.

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Law, Politics

শাহবাগ আন্দোলন নিয়ে টুকরো চিন্তা – ২

শাহবাগ আন্দোলন নিয়ে আমার মনের কিছু কথা বলি।

আমি এই সায়িদী-নিজামী-গোলাম আজম বাহিনীর জন্য এক ফোটাও ঘাম ঝরাইনা। ‘৭১ এ এদের কান্ডকলাপের জন্য এদেরকে সমাজের থেকে অনেক আগেই কনভিক্টেড করে দেয়া হয়েছে। ব্যক্তিগত ভাবে আমাকে জিজ্ঞেস করলে আমিও সমাজের সাথে একমত, যে এদের বেশিরভাগই আসলেই ঐ সময়ে আমাদের দেশের মানুষের সাথে বিভিন্ন যুদ্ধাপরাধ করেছে। এই জন্য তাদের বিচার হওয়া দরকার। কিন্তু অনেকের সাথে, এস্পেশালি শাহবাগের সমর্থকদের সাথে, আমার খুব মৌলিক লেভেলে একটি দ্বিমত আছে।

এই সামাজিকভাবে কনভিক্টেড নিজামি-সায়িদী-গোলাম আজম এর বিষয়ে যদি এতজনই কনভিন্সড থাকে যে মৃত্যুদণ্ডই হবে তাদের জন্য একমাত্র ন্যায় বিচার, তাহলে তাদেরকে প্রয়োজনে অত্যাচার করে শুট করে অথবা কুপিয়ে-কিলিয়ে মেরে ফেলুক তারা, আমার তাতে কোন আপত্তি নাই (এইখানেই আমার জামাত এবং সমমনা লোকদের সাথে প্রধান পার্থক্য)। বিশ্বজিত, সাগর -রুনি, থাবাবাবা ও সায়িদী রায়ের পরবর্তী কয়েকদিনের সহিংসতায় নিহত একশ কি দেড়শর অধিক মানুষের মৃত্যুতে আমি যতটুকু চিল্লাফাল্লা করেছি, বড়জোর হয়তো ততটুকুই চিল্লাফাল্লা করবো এদের মৃত্যুতে। কি হবে তাতে? অনেকেই হয়তো এদের মৃত্যুতে উল্লাস করবে। ওদের মৃত্যুর যে বিচার হয়েছে, এদের মৃত্যুর জন্যও বড়জোর ততটুকুই বিচার হবে।

কিন্তু তারা যখনি সেইটা না করে এইটাকে আমাদের বিচার ব্যবস্থা এবং কোর্টের অধীনে নিয়ে আসবে, তখনি তাদেরকে ন্যায়-অন্যায়ের কথা চিন্তা করে আমাদের বিচার ব্যবস্থার উপরে জিনিসটি ছেড়ে দিতে হবে। সামাজিক কনভিকশন কিন্তু লিগাল কনভিকশন না। বিচার ব্যবস্থার সমস্ত রুল, প্র্যাকটিস ও প্রথা মেনে বিচার করতে হবে। এবং তার শেষে রায় যাই হোক, তাকে তাদেরকে মেনে নিতে হবে। যদি তাদের প্রত্যাশিত রায় না আসে, তাহলেও তা মেনে নিতে হবে। প্রত্যাশিত রায় না আসলে প্রসিকিউশনকে দোষ দিক তাঁরা। প্রসিকিউশন প্রমাণ করতে পারলো না কেন? কিন্তু কোর্টকে কোর্টের যায়গায় রাখতে হবে, আইনকে আইনের যায়গায় থাকতে হবে। আমার চোখে এই নিজামী-সায়িদী-গোলাম আজমের মৃত্যু বা বিচারের থেকে আমাদের বিচার ব্যবস্থা অনেক অনেক বেশি বড় এবং গুরুত্বপূর্ণ। প্রত্যাশিত রায় পাওয়ার জন্য কোর্ট এবং বিচার ব্যবস্থাকে ব্যাবহার করবে তাঁরা, এইটা আমার দ্বারা কোনদিনই সমর্থনযোগ্য হবেনা এবং আমি হতে দেবনা। দ্যা কোর্ট ক্যানট এভার বি দ্যা মীন্স টু দেয়ার এন্ড। এইটাই আমার তাদের সাথে দ্বিমত।

আমি কোর্টের অফিসার। কোন এক বিষয়ে জাতীয় এমশনের ঘাটতি মোচন করার লক্ষে বিচার প্রক্রিয়াকে ব্যবহার করার ব্যাপারে বা বিচার বিভাগের উপর চাপ প্রয়োগ করার ব্যাপারে আমার আজীবন দ্বিমত থাকবে। ইন ফ্যাক্ট কোর্টের উপরে কোন রকম চাপ প্রয়োগ করা হলে সেইটায় ব্যাপারে আমার আজীবন দ্বিমত থাকবে। কোর্ট বা বিচার বিভাগকে রাখতে হবে তার যায়গায়। কোর্টকে নির্দিষ্ট কোন রায় দিতে বাধ্য করা তো দূরে থাক, কোন চাপও দেয়া যাবেনা এবং তা হলেও সেটা কখনই গ্রহণযোগ্য হবেনা।

তবে যদি কোর্ট অন্ধ বিচারে আগত একটা রায়ের মাধ্যমে সেই ঘাটতি মোচন করে, তবে আমরা জাতিগতভাবে সৌভাগ্যবান হব।

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