Court Corridor
Legal lies
Barrister Moksadul Islam
Lawyers are liars! Oops…. I am a lawyer too. Am I a liar? Well, let's examine.
The lawyers are addressed as the learned and they address others as laymen (obviously regarding jurisprudence). The common people who we the learned refer as the laymen think and believe that the lawyers are liars. On many occasions I tried to explain in vein that I do not lie for my clients however I do not think anyone believed me. I hardly have any practice in the lower judiciary which is the original jurisdiction for most of the civil and criminal matters hence I would not make any comment regarding the practicing lawyers of the lower judiciary. I will try to concentrate only about the practice in the court corridor of the Supreme Court (SC) especially in the High Court Division (HCD).
SC being the appellate court with limited original jurisdiction mostly deals with records or documents. That is why it is also called the Court of Records.
However, SC is the original jurisdiction for the writ, company and admiralty matters. A lawyer in the HCD assist the court in examining documents and in interpreting legal principles supported by the decisions and in line with the facts and circumstances of the case before the court.
When the HCD works as the appellate court; usually original or certified copies of the documents from the lower judiciary can easily be obtained. Photocopies are also accepted normally when the certified copies of them has been filed in another case. However forged certified copy of the order of the lower judiciary is also detected sometimes. As a court with original jurisdiction HCD deals both with original and photocopies of the documents.
Let us examine how the HCD deals with photocopies usually when it works as a court with original jurisdiction. The safe way is typing in the contents of the photocopy in the body of the main petition. However sometimes it is not possible or practicable to type in the entire document simply to point out a date or some other mark or remark in the document. To overcome these situations the lawyer will try to annex the photocopy with the main petition.
However he must first certify the photocopy as the "true copy" of the original. Now the question is has the lawyer always seen the original first before certifying the same as the true copy? Everyone including the court knows that is not the case. Everyone knows very well that the original cannot be taken out of the government office, or has been filed in another
Office (e.g. custom authority), or right now it is in another country. For example in an admiralty matter a ship may be owned by a company which is incorporated in one country, she might be carrying the flag of another country and documents are in another country. Even though the original exist somewhere however it is simply not possible to produce them before the court on time. Sometimes the original simply does not exist as the same was circulated only in photocopies. Here the photocopies are the originals.
However the lawyer must seek permission from the court to swear affidavit with any photocopy of the original. Usually this permission is given by the court even though the court knows very well that the lawyer who is certifying the photocopies as the true copies has not seen the originals.
Different court adopts different approaches before giving the required permission to swear affidavit with the photocopy of the annexure. Initially the court may want to know and even examine the contents of the annexure. Then the court may also want to know where the originals are. Sometimes the court may ask whether the contents of the photocopy are legible; if not the lawyer may be asked to provide the typed copy of them also. Some court may also want to know whether the lawyer has explained in the main application why the original documents were not available. Most acceptable form of explanation is that "the annexure is lying with the respondents and the petitioner verily believes that the photocopy is the true copy of the original". Some courts may not want to give the required permission only in relation to a photocopy when it is the impugned document (impugned document is the document which is under challenge). Permission is easily given if the photocopy is a correspondent and was addressed to the petitioner.
Sometimes permission is given subject to the production of the original at the time of the hearing even though some of the documents cannot be produced before the court for obvious reasons. Being instructed by the Court this permission is written by the Bench Officer (BO). Hence obviously this permission can be purchased from the BO. Sometimes obtaining of this permission could be daunting experience for some lawyers. He would run from one court to another court for this permission. Sometimes although the court gave permission to one lawyer yet it was refused to others. Sometimes one court is giving permission however the other court is refusing to give the same permission. Sometimes the court which always accepted the photocopies suddenly stopped accepting any photocopy. On many occasions the court demands that all photocopies must also be typed even though they are legible. As the court is always right hence I must say everything depends on how a lawyer is playing with his words when he was seeking the required permission.
In a nutshell let us examine the situation. Original is not readily available or does not exist. However for ends of justice the court needs to examine the photocopy. The lawyer may not have seen the original however he must certify it as the true copy of the original. The court and everyone knows that it was not possible for the lawyer to see the original. The courts follow no rule and there is not consistency in giving the permission. Whatever approaches the court takes to gives its permission but the fact remains that the lawyer has not seen the original. Moreover the permission of the court can also be purchased from the BO without the knowledge of the Court. The Court has ample power to examine any document however the question is why do lawyers have to certify a document as the true copy when they actually cannot have seen the original? Is not it a legal lie? Is not it a fake permission? Am I a liar?
This is a fortnightly column and the columnist is an advocate of the Supreme Court, Bangladesh, who can be reached at mail@legalsteps.net
