By Junayed Ahmed Chowdhury & Sajeda Farisa Kabir
The COVID 19 crisis has become an issue of unprecedented concern, which literally brought the everyday life of Bangladesh (and the world) to a standstill. Judicial activities, however, are an essential service and must remain open even during the COVID-19 lockdown. Keeping in mind the congregation of people and professionals we are accustomed to seeing in our court premises, the key focus should be on getting the job done with the presence of the least possible number of people.
Justifiably, the question comes whether we can achieve this within our existing legal framework.
Our research suggests that we actually can. Following are our findings and proposals to keep the wheels of justice running –
A. General administration of judicial services
There can be ‘split teams’ and 33% officials (including the judges as well) may attend court premises for two days per week. The rest of the 67% of officials should operate proportionately for the remaining four days of the week. It can be suggested that the judiciary may remain open for six days a week including Saturdays. If such a measure is adopted, then the allocation of the 33% court officials can be split into a ‘two days per week’ slot as stated above. If these steps are taken, then the judiciary service is provided by keeping the risk of COVID at a minimum level.
The abovementioned recommendations can be achieved for the High Court Division under rule 7B of Chapter-1A of the Supreme Court of Bangladesh (High Court Division) Rules 1973 (“the HCD Rules”). On the other hand, for the lower judiciary, the provisions under rule 7C read with rule 7 of Chapter-1A of the HCD Rules can be followed. Notably, the Chief Justice can implement such measures for both tiers of the judiciary under rule 19B of the HCD Rules.
B. Practice and procedure
Administering oaths and affirmation of affidavit
There is a requirement in regards to High Court litigation to remain ‘physically’ present before the affidavit commissioner during the swearing or affirmation of affidavits (per Rule 29 of Chapter 4 of the HCD Rules). The COVID-19 situation poses a serious challenge to this process.
However, Rule 31 of Chapter 4 of the HCD Rules requires administration of oaths and affirmation to a deponent to be done as per the Oaths Act 1873. Section 10 of the Oaths Act 1873 states, among others, that if it is of such a nature that it may be more conveniently made out of Court, the Court may issue a commission to any person to administer it and authorize him to take the evidence of the person to be sworn or affirmed and return it to the Court. Hence, following section 10 of the Oaths Act 1873, it is perfectly legal for the court to delegate someone (including an advocate) to administer oaths and affirmation out of court instead of the deponent having to go in front of the affidavit commissioner.
Additionally, in the exercise of powers under rule 19B of Chapter 1A of the HCD Rules, the Chief Justice can assume the powers of the Rule Committee (under rule 7A) and order a temporary suspension of the requirement of the deponent being physically present before the affidavit commissioner for the swearing of affidavit and trigger section 10 of the Oaths Act 1873 to allow the representing advocate to administer oaths and affirmation to the deponent in terms of rule 32 of Chapter 4 of the HCD Rules.
The Chief Justice can also stipulate that an advocate affirming a deponent must meet the following requirements:
- The advocate must be satisfied with the quality of the remote conferencing facility (Skype, WebEx, Zoom etc.) to observe the deponent and the document.
- Only advocates representing the clients can administer oaths to the clients as deponent subject to the client producing reliable photographic identification capable of being inspected by video conferencing (the NID).
- Any document supplied by the client must be signed by the client during the session of videoconferencing and scanned by the deponent to the advocate thereafter.
- The advocate must be satisfied, as far as possible, that the document received from the deponent is the same document the advocate witnessed being signed by the deponent during the videoconferencing session. If the advocate is satisfied with that then the document should be attested as ‘true copy’.
Rethinking the filing procedure: adopting E-filing
It can be suggested that the current rule of filing can be suspended for some time. Rather than following the prevailing rules in this time of crisis, it may be allowed that filing of documents and petitions can be done through the email address of the Bench officer of the concerned court. For example, under Chapter-4A of the HCD Rules, rule 3(3) requires that a writ motion needs to be filed before the concerned section. The Chief Justice can suspend this rule during the COVID-19 crisis. The Chief Justice may do so under rule 19B of Chapter-1A of the HCD Rules by assuming the powers of the Rule committee under rule 7A. He may also promulgate an interim rule that any motion could be filed via email (i.e. scanned copy) by the advocate to a designated email address of the concerned bench officer. There must be a statement in the motion that the original motion shall be filed at a later date. The later date will arrive when the Supreme Court resumes regular operations and failure to do so shall result in immediate discharge of any rule granted in that motion.
Moving an application or petition via teleconference
The Chief Justice may issue a temporary rule in this regard as well. As such, the concerned Bench can allow moving an application or motion via video conferencing mechanisms adopted for the purpose of hearing of an application, motion or petition.
In light of the above, it appears to us that it is possible to attain a safer court environment by a few adjustments within the corners of our existing procedural framework.
Barrister Junayed Ahmed Chowdhury is an advocate of the Supreme Court of Bangladesh, and the Managing Partner of Vertex Chambers (Dhaka) and Vertex Intl. Consulting (Sydney).
Barrister Sajeda Farisa Kabir is an advocate of the Supreme Court of Bangladesh and a solicitor of New South Wales, Australia. She is a partner of Vertex Chambers (Dhaka) and Vertex Intl. Consulting (Sydney)