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Two lawyers’ views on the rule of law and their profession in Bangladesh
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Tanvir Parvez & Mohammod Hossain, human rights lawyers, Bangladesh
Tanvir: In any state, lawyers have a role in upholding the rule of law. Bangladesh is no exception; however, how far its lawyers have been able to perform this responsibility should be carefully considered from different viewpoints, such as whether the common people view lawyers as acting to promote the cause of justice or rather to place impediments in its way. In this paper I take up this question with reference to the lower judiciary in Bangladesh (the courts which are subordinate to the High Court Division), and basically from my own experience.
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Mohammod: Rule of law is one of the basic features of the Constitution of Bangladesh, as enshrined in the preamble. Article 27 ensures equality before law and article 31 provides for treatment in accordance with law. Aside from this I am not referring to any other law here because from the pictures given below the reader will be able to guess what the law should be and how it is being violated.
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Public perceptions of lawyers
Tanvir: Lawyers have played a vital role in shaping the social and political life of Bangladesh. Most of the frontline leadership for independence was from the legal profession. The role of lawyers did not end there. In all subsequent events of national importance, when citizens’ rights and individual liberty have been at stake, lawyers have remained staunch defenders of the rule of law and basic human rights.
Yet in spite of the lawyers’ invaluable contribution to national life, the general perception of lawyers is not very high. There is a common notion that lawyers are masters of sophistry who earn their living by causing harm to innocent people. One of my father’s friends once told me that in his opinion the legal profession is incompatible with Islamic injunction, since a person cannot earn his living in it without resorting to falsehood. When I chose to study law, the mother of a friend commented with a mocking tone that it is very easy to earn money in this profession by uttering a few false words before the court.
But I must also mention the honour and respect that I have received as a lawyer. In my locality, when I come out of my residence I am greeted by many, both known and unknown to me. People of the locality ranging from young adolescents to the elderly seek my advice on many matters that do not have even the remotest connection with law. It is interesting to note that many of those who initially discouraged me to study law later turned to me and sought my assistance. My father was also a practicing lawyer, and from my early childhood, I had seen that he too was a respected figure in the area, and was often invited to preside over various social gatherings. Thus, it can be said that the public perception of lawyers might not be very good but there is a considerable portion of people who believe that lawyers are holding up the scales of justice for them and therefore should be respected.
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Mohammod: The public is in general not happy with lawyers. Whenever a lawyer is introduced to a new friend he must hear, “Are you a lawyer or a liar?” Most new friends ask a lawyer why he chose the profession of liars. Landlords try not to rent their houses to lawyers. Three years back it was unearthed that more than a hundred lawyers obtained their law certificates from a university by practicing fraud, as they had failed in exams. A judge of the High Court Division of the Supreme Court had to sign off his job on the same allegation. After this incident, the image of lawyers was reduced to dust.
Litigants frequently allege that they have lost their cases as the other side purchased the lawyers. This allegation is not always true, but few losing litigants try to understand the defects of their cases. One reason is that their lawyers usually feel reluctant to disclose the demerits of a case, apprehending that the client may not proceed and income will be lost.
Nowadays, more businesspeople are trying to push their children into the profession, probably in order to get them to assist their parents in evading tax, grabbing land, and stealing gas, electricity, water, etc.
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Lawyers and delays in trial
Tanvir: Delays are one of the greatest barriers to the dispensing of justice. Unfortunately, the lower judiciary in Bangladesh is notorious for causing delays. In the court premises there is a common saying that has almost gained the status of a proverb, which is that unless five parties are in agreement, no case can proceed, and the five parties are the judge, the lawyers of both sides, and the plaintiff(s) and defendant(s). To some extent lawyers cause delays. Generally, in the subordinate judiciary lawyers are paid on the basis of days of appearance. This means a lawyer can take the greatest benefit by simply lingering on a case. Apart from that, many cases are concentrated among a handful of lawyers, and these lawyers adjourn cases simply because it is not practically possible for them to deal with all cases on the same day.
Bangladesh inherited its legal system from the British, and the adversarial mode of proceeding still dominates. As such, parties may linger on a matter by arguing about strict compliance with procedure, and often cases are taken to the superior courts challenging an interim order of the trial court on the ground that proper procedure has not been followed. Once a party goes to the superior court on such a ground, the superior court is very likely to grant a stay order, which means that the matter will remain suspended for years. I am personally involved in an eviction case in which an order of the trial court passed in 1996 was challenged before the High Court Division, and the main proceeding was stayed. Thereafter, in 2005, the High Court Division after hearing the matter refused to interfere and vacated the order of stay. Challenging that judgment, the tenant appealed to the Appellate Division, and the matter is yet to be heard by that division. The trial court is not proceeding lest the Appellate Division decide otherwise. The tenant has also stopped paying any rent on the ground that this is a subjudice matter.
Aside from the lawyers, judges are in many cases inclined to grant adjournments due to heavy workloads and the lack of vital personnel and materials, such as stenographers and law books. For these and other reasons, judges often find it hard to deliver judgments even though hearings might have been completed long before. It is not very unusual for a judge to re-fix a date for re-hearing even though neither party has requested it. This is because due to the time that may have elapsed after the completion of the hearing the judge has forgotten what was argued. In one of my cases where I moved an injunction petition, the judge twice fixed the date for re-hearing but still the re-hearing did not take place on the specified dates, since the judge was overburdened with work. Almost seven months from the date of first hearing the order was passed, and it was against me. In the meantime my need for an injunction had become useless, and an appeal appeared not to be a good option.
Under Bangladeshi laws there are stringent provisions for reducing delays. According to the Civil Procedure Code 1908 (as amended) a party to a suit cannot take more than three adjournments at the final hearing stage. If any person takes more than three adjournments, then if a plaintiff the case will be dismissed and if a defendant the defence will be struck off. However, in one of my cases where the plaintiff took more than six adjournments and I placed an application invoking that provision of law and praying for the suit to be dismissed the judge found that it would be contrary to the ends of justice if the suit were dismissed. Thus an express legal provision was flouted in the name of justice.
Another cause of delays is that judges are not given proper training on the practical aspects of law, including the latest pronouncements of the higher judiciary, or even about the significance and impact of precedent. As a result, they are not quick enough to catch the real points of concern to a case and tend to stick to what they learned many years before in classroom lectures, no matter how outdated.
One reason that judges are not kept up to date with the law is that in Bangladesh to keep track of changes in law is a formidable task. There is no government initiative to compile laws, rules and regulations with amendments, or even to provide monthly updates. Of late, under the auspices of the CIRDAP, a Canadian origanisation, a 38-volume ‘Bangladesh Code’ comprising all the existing Bangladeshi laws up to 2006 has been published. But no initiative has been taken to do the same for the relevant rules, regulations or laws made under various statutes, and as such judges and lawyers often have to grope around for them. In one of my recent cases, I was searching for rules made under the Telegraphy Act 1885, and I was surprised to find that even the law officers of the telegraph office don’t know where to find them. This is an acute problem, as judges are often passing judgments without being properly acquainted with the exact law. Despite such limitations, Bar Associations over the country are trying their best to provide good law libraries and judges are also allowed to borrow books from these.
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Mohammod: Lawyers in the higher courts do not want to delay disposal of cases. Usually, litigants give instructions to make delays when they feel that they may ultimately lose the case. Sometimes lawyers become lethargic when they do not receive proper fees. But in the subordinate courts lawyers are against quick disposal of cases as they think that the longer a case goes, the more money they can get.
Although a lawyer can delay disposal of a case, he cannot expedite one unless the lawyer appearing for the opposition is cordial and the court is strict. Sometimes a combined effort of all the parties fails owing to reconstitution of the court. In the Supreme Court there is no fixed court to hear specific matters. After every vacation or every occasion that new judges are appointed, the courts are reconstituted and jurisdictions are changed. If the hearing of a case is not completed before a change of jurisdiction, the judge or judges are to wait till the chief justice asks them to hear that part-heard matter on a later occasion. If the judge or judges fail to complete the matter on the later occasion, in most cases they let the matter be heard by another judge having jurisdiction. The low number of judges compared to number of cases pending is another reason for delay.
Judges take time to draw judgments or orders. Sometimes it takes weeks to draw a two-page order, or months to draw a ten-page judgment. In one case I conducted, it took two years to get a ten-page order. By the time that an order of the court has become available it may have lost its necessity.
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Difficulties that lawyers face in performing their duties
Tanvir: Though article 33 of the Constitution of Bangladesh has declared that a person arrested should not be denied the right to consult a lawyer and has a right to be defended by one of his or her own choice, in practice the police deny people these rights. In some cases, not all papers necessary for trial are supplied, and even if a lawyer intends to challenge the decision of a lower court before the High Court the concerned official may refuse to issue a certified copy of the order, thus causing impediments to the administration of justice and hindering lawyers from performing their duties to the fullest capacity.
In Bangladesh when police interrogate an accused, a lawyer is not allowed to be present. As a result, people are often severely physically and mentally tortured in police custody, in some cases resulting in death.
Judicial officers also harass lawyers, mostly by making insulting and degrading remarks from the bench. In some exceptional cases, the harassment may go further. In such cases there are no statutory mechanisms for redress. But the Bar Associations play a very important role in making protests, and raising such issues before the level of judiciary (generally the district judge) with administrative control over the officer concerned. Eventually some actions ensue.
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Mohammod: In the Supreme Court there is a procedure to mention some items for extension of interim orders like order of bail in criminal cases. We have found that there are few judges to hear twenty or fifty lawyers at the mention hour for extension of bail. Usually junior lawyers make room for senior counsels. Due to this practice, all the senior lawyers get the opportunity of mentioning their items but junior counsels are deprived of the opportunity of mentioning their cases if the quota of twenty or fifty is exhausted. But there is no law that only twenty or fifty cases should be heard a day for extension of bail, and as many cases as are mentioned should in fact be accepted for extension.
Some judges extend an interim order for a certain period, directing the petitioners or appellant to get the case heard within the given time, as the interim order would end there. Although the lawyers put their efforts into getting matters heard, they fail. Sometimes there is no court to hear the case of a particular year; sometimes the courts refuse to hear a case on the ground that they are overburdened. As a result, the interim order comes to an end without any fault of the litigant or the lawyer.
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Negligence, misconduct and accountability of lawyers
Tanvir: The practice, etiquette and norms in the legal profession of Bangladesh are very much shaped by the British tradition. After the decision of the House of Lords in Arthur J S Hall v Simons [2000], lawyers are no longer immune from any action brought against them on grounds of negligence. The same principle applies in Bangladesh. To ensure accountability of the lawyers, there is a statutory body, the Bangladesh Bar Council, which has the power to receive complaints about misconduct and take appropriate action. The problem with this system is that people are ignorant about the complaint procedure, and others do not lodge any complaint out of fear of antagonising the legal community. I have come to learn about one case in which a former vice chairman of the Bar Council was himself accused of gross professional misconduct, but in which the concerned litigant did not dare to file any complaint.
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Mohammod: Some lawyers receive cases giving assurances of one hundred per cent success and charge huge fees. Some misrepresent to the litigants that they will pay the lion’s portion of the fee to the judges, but if successful in obtaining a remedy for the litigants they keep the entire amount of money and if they fail they refund the money, keeping a portion as expenditure. For this reason, sometimes clients offer money with which they believe we can bribe the judges.
Lawyers in Bangladesh are not accountable to their clients for the bad consequence of cases. They do not have to pay the costs from their own purses and hence most lawyers take every case they can get. Therefore, the majority of cases fail. As a result, the profession as a whole is losing public faith. The delay in disposal of cases is also making people scared of court. I have found some people giving up their cases due to delays. It is the solemn duty of lawyers to give proper advice and speedy relief for the sake of their own profession.
When a lawyer commits professional misconduct, a litigant can complain to the Bar Council. But in practice people do not lodge complaints against lawyers because of ignorance; because they are afraid of harassment at the Bar Council if they complain, and because if they consult another lawyer in order to lodge a complaint the new lawyer may also discourage the person due to fellow feelings for the lawyer accused of misconduct.
Where a judge commits misconduct, no lawyer will make a complaint, apprehending that other judges may become angry and his or her career will be ruined.
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Relationship between lawyers, law-enforcing agencies and prosecutors
Tanvir: Law-enforcing agencies are respectful to members of the legal profession. They are prompt to respond to any assistance sought by a lawyer. My personal experience is that once the police or members of other law-enforcing agencies come to know that I am a lawyer, that person will behave with respect and courtesy. But it appears that in the lower judiciary, the relationship between lawyers and law-enforcing agencies is mainly determined by corruption. In magistrate courts, the prosecuting officers are from the police force, and the equation is simple: if you give the prosecuting officer whatever is demanded, the officer will not oppose your motion.
In the lower judiciary, the relationship between judges and lawyers is not very cordial. One reason is that judicial officers in the lower judiciary are transferred frequently and they are often moved before becoming acquainted with members of the bar. However, many lawyers develop relationships out of personal initiative, for the most part motivated by immoral considerations.
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Mohammod: There is not a single segment of our society, except the perpetrators of crime, which has a good relationship with the police. Police maintain good relationships with robbers, extortionists, drug peddlers, etc., and take fixed shares from them. Nowadays some police constables have been deployed as security personnel for judges. Each judge has one constable. When a lawyer succeeds in getting a relief from a court, the guard demands tips from the lawyer, even though he has no function in the court.
In police stations, lawyers do not get any respect. Even if a lawyer goes to a police station to lodge a complaint, be it on his or her cause or on behalf of a client, the lawyer has to give bribes or he or she will not be attended at all. Some police officers maintain good relationships with particular lawyers for monetary gain. Whenever an accused is arrested the policeman will tell the accused that he knows a good lawyer who can bail him out within a day. Then he introduces the accused with the lawyer, who gives a fixed percentage of the fee to the police officer. Even then the accused may not be bailed out in a day, because that depends upon the gravity of the case and mood of the judge. In other types of cases, police hate having lawyers present, thinking that opportunities for unofficial income may be hampered by their presence.
Even the son-in-law of a senior member of a district Bar Council did not get help from a single police officer when made victim of law enforcers’ harassment. Md. Jahangir Alam Akash, the son-in-law of the lawyer, is a promising journalist and an activist. When he was working as a TV reporter, the Rapid Action Battalion (RAB) arrested a person by firing a bullet into his leg. Akash prepared a report and the TV channel telecast it, which is what made the RAB team leader angry. The team leader threatened him over the telephone, which Akash brought to the notice of various authorities and groups, including the Asian Human Rights Commission (AHRC). After the AHRC issued an urgent appeal, the government asked police headquarters to enquire into the matter. When the enquiry was going on, the RAB team leader had a false criminal case filed against Akash by a person who had enmity towards him because he had written a newspaper report on the misdeeds of that person’s father. On the same date the RAB arrested Akash and subjected him to inhuman physical torture in front of his wife and five-month-old son. Thereafter, the RAB managed to bring the case under the Emergency Powers Rules 2007, a law framed during the recent state of emergency. The AHRC referred the matter to me and I filed a writ petition before the High Court Division and got the proceedings in the case stayed. Upon withdrawal of the emergency, the writ petition become infructuous and now the case is running under ordinary law.
As to the relationship between prosecutors and lawyers, in magistrate courts it is police officers that prosecute the accused, but in the sessions courts prosecutors are appointed from among lawyers. The government makes these appointments from among the members of the political party in power, and on change of government the prosecutors are changed. Some lawyers of the ruling political party who are not appointed as prosecutors have good relationships with the prosecutors, but other lawyers do not get any cooperation. Prosecutors are not interested in unearthing the truth of a case. Rather, they always try to convict the accused irrespective of guilt or innocence. They do not consider whether the police have investigated correctly or not. Whether the right person has been sent for trial or not is also not their concern. In some cases, prosecutors play a lenient role if they receive bribes.
The relationship between judges and lawyers in the Supreme Court is happily healthy, although there are a few lawyers who underestimate the judges. Some months ago, a senior lawyer reportedly became angry with a judge of the High Court Division when the judge was going to pass an order against the lawyer’s client. The lawyer allegedly used some objectionable words and the court issued a rule of contempt upon him and directed him to appear before the court in person on a certain date. The said lawyer did not appear before the court on that date and the case is awaiting an uncertain fate. There are also a few judges who misbehave with lawyers, but we take it as their personal character.
Some judges in the subordinate courts are jealous of lawyers as they receive a small salary while lawyers of comparable age, if sincere in their profession, may earn much more than the judges do. The poor salaries of judges lead them to corruption. The good lawyers disrespect the corrupt judges, but a corrupt judge and a corrupt lawyer make a pair of inseparable friends.
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Professional organisations and the rule of law
Tanvir: In my view, the Bangladesh Bar Council has failed to raise its voice or make any mark in cases where the rule of law has suffered its greatest set backs. It has confined itself to activities like enrolling advocates and arranging some training programmes. In some cases it has cancelled or suspended the enrolment certificates of some advocates due to professional misconduct. It has a Human Rights Cell, but the cell’s activities are not very prominent. In cases where it raises its voice or takes a stand for the rule of law, it is often motivated by political considerations. It lacks neutrality. All in all, it may be said that the Bangladesh Supreme Court Bar Association has done much more to uphold the rule of law rather than Bangladesh Bar Council. Even some of the voluntary lawyers’ organisations are doing more substantive work for the rule of law than the Bar Council has ever done.
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Mohammod: The Bangladesh Bar Council has turned into an agency in the service of a political party. For a decade the members of a particular political party have represented it. Advocates try to enroll people to the council affiliated with that political party first. A party man is enrolled easily, although he is not qualified for enrolment, and therefore we are getting some lawyers of low caliber.
The Supreme Court Bar Association does not play any role to uphold the rule of law either. Its members’ main business is receiving briefs through use of their positions. Litigants are eager to engage the president or secretary of the association, thinking that the courts will give them extra face value. Some junior lawyers also like to appoint them as senior counsels. This association has become a political association too. Only the political, no matter good or bad, are elected as members. A non-political lawyer is never elected, although he or she may be a good lawyer. The association allocates some cubicles to lawyers but a lawyer not affiliated with the political party ruling the bar never gets a cubicle, even if a good senior lawyer. There are also allegations that a few ex-office bearers misappropriated Supreme Court Bar Association funds.
The Judicial Service Association of Bangladesh too has been formed with sole objective to secure the interests of its members. The secretary general of the association, Masdar Hossain, achieved the separation of the lower judiciary from the executive by filing a writ petition. But that writ petition was also filed out of self-interest, i.e. to snatch judicial power from the executive. Apart from this achievement, the association has done nothing for the rule of law. It does not even speak against corruption. The honest and good judges are doing justice of their own volition and according to their own consciences. The only thing this association does is to hold a conference every year to raise its demands to the government. It publishes a souvenir booklet, taking donations from businesspeople and publishing their advertisements, for which the former attorney general, Mahmudul Islam, strongly criticised the group.
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Posted on 2009-06-23
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