Law alter views
Professional safeguards for the lawyers
Dr Belal Husain Joy
THE Advocates, are under solemn promise to uphold at all times the dignity and high standing of legal profession... to safeguard, protect and defend the constitution... be vigilant in the protection of human rights and thus work towards building 'a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social will be secured for all citizens'.
Lawyers' duties & responsibilities and rights & obligations are regulated by the 'Bangladesh Legal Practitioners and Bar Council Order 1972, Rules and Cannons of Profession. In the process of professional duties and actions, lawyers are under constant monitoring, and in case of any breach of them, the Bangladesh Bar Council has a number of tribunals to take necessary disciplinary action with provisions of appeal up to the Appellate Division of the Supreme Court of Bangladesh. Hundreds of such examples are there in the form of fine, suspension of 'Sanad' and removal of names from the Advocates' Register.
There are recent incidents, where Advocates are facing challenges, with regard to false and fabricated documents, submitted in the courts of law, especially in the High Court Division of the Supreme Court of Bangladesh. Questions did arise, who should be held responsible for production, authentication, verification, supply and filing of such documents. Is it just the Advocates? Or the others as well, either individually or collectively.
The advocates quite often deal with documents like: Power of Attorneys, Deeds, First Information Reports (FIR), Charge Sheets, s161s, s164s, Judgements and Orders, Medical Reports and Certificates etc. All these documents are submitted to the Courts concerned, which are supplied by the clients and/or their representatives. Instant verification of these documents supplied as certified copies, especially from the sub-ordinate courts, may not necessarily detect any tampering or over-writing or change/s of any form made, by the Advocates of the High Court Division of the Supreme Court of Bangladesh. We do not prepare the documents. Lawyers are not signatories of the documents. They do not authenticate the documents. They only enclose and file the relevant documents to the concerning courts, supplied to them by our clients or their representatives or tadbirkars. This view is reflected in the case Md. Mostafa v. The State (Criminal Misc. No. 3138 of 2004), judgement passed by Mr Justice Sharifuddin Chaklader and Mr Justice Md Emdadul Haque Azad on 14 February 2008.
A good number of individuals are involved in the preparation, checking, authentication, signing, accepting, submitting, and studying up-to the stage of giving judgements and orders on the basis of those documents. Every individual has the duty to do his own part of the job, and responsible to discharge his duties as accurately as possible and honestly, and finally, again individually accountable, for any faults, false, fabrication and fraudulent activities ultimately detected in the whole process. And that starts from Clients, Stamp-Reporters, and Affidavit Commissions to Assistant and Deputy Registrars.
In recent past, many lawyers have experienced a number of cases, where medical certificates were reported to be forged, particularly, in cases like Ramna Botomul and Babar's bail matter. It is even worse to see that the highest court of the country, heard a case where the appellant himself was of non-existent. Who are responsible for such incidents? Is it the clients concern, or the personnel in the respective court offices, or the authentication officers who signed the documents, or the filing lawyers, or also the judges who deliver judgements and orders on the basis of forged documents? Who decides who should be held responsible for such false & fraudulent actions and activities?
Of course, the ultimate authority is the Hon'ble Judge concern, although the Judge himself, as a prudent, ought to examine the documents placed before him for disposal of issues, hence, he himself also can not avoid his own responsibilities. If the lawyer is found to be guilty, s/he should be punished. But where it is difficult to ascertain the definite responsibility of any of the parties, lawyers must not be punished just because he filed the case before the court. There must be some provisions available in the 'Bangladesh Bar Council' laws to protect the individual lawyers and to safeguard the image of the legal profession.
To prevent the preparation and submission of false and fabricated documents, a number of suggestions are made for the consideration of the authorities and individuals concern:
(a) Specimen signatures of the authorised issuers of the certified copies of the district courts must be kept up-to-date in the Stamp Reporters' and Affidavit Commissions' offices, Assistant & Deputy Registrars to instantly verify the documents and signatures of the issuing authorities; like checking signatures of the cheque issuers in standard banking system.
(b) High Court Rules may be up-dated in relation to signing the Affidavits, by producing National Identity Cards and/or attaching passport size photographs of the deponents.
(c) Affidavit Commissions, Stamp Reporters, Assistant and Deputy Registrars must verify the principal documents along with all enclosures to be filed to the courts by the lawyers.
(d) In most of the criminal cases, Case Diaries (CD) containing police report are also needed to be checked and verified by Public Prosecutors (PP), in particular, statements under s161, s164 etc. to check and marry with police investigation reports either in the form of charge sheets or final reports. This is a must, because most of the cases are put in jeopardy at these stages of the criminal proceedings.
(e) To ensure effective justice system, we, in Bangladesh, may initiate to establish Criminal Prosecution Service (as opposed to Crown Prosecution Service in the UK), where a separate brigade of experts, independent to the police investigators, will verify all documents (including police documents) to substantiate further court proceedings. In such way, false and fabricated documents and cases may be detected and innocent parties may be protected.
Of course, in the mean time, High Court bails are confirmed by the jail authorities through sub-ordinate courts over telephone once written orders are received to make sure that the bail, release, imprisonment and acquittal orders were actually enlarged by the bench concern. This must be made on all cases without exception.
Finally, Bangladesh Bar Council laws may be changed to protect its members by incorporating a provision under s.32A of the Bangladesh Legal Practitioners and Bar Council Order 1972, saying that "No Advocates shall be liable for presentation and attestation of certified documents which may later be found false and/or fabricated. If in case, an Advocate is found involved in such process, he may be referred to the Bar Council Tribunal instead of other legal forum".
The writer is a Barrister-at-Law and Advocate of the Supreme Court of Bangladesh.
