The story is well known to all that some boys throwing stone at the frogs in a pond threatened their life. The recent commentary of the Chief Justice Surendra Kumar Sinha on writing judgments after retirement has done the same. It could be no problem if his comments were right. Actually what he has said is, unluckily, wrong in the eye of law.
The recent statement of the Chief Justice has raised controversies across the country. Also it's increasing political unrest and bringing the present Awami League-led Grand-Alliance Government under pressure and the abolishment of the caretaker government system before question of legitimacy which are very unhappy and hesitating. It is no how expected by the citizens that such a controversy should continue; for he has given a wrong idea about writing judgements. He said in his speech of one-year-completion as the Chief Justice of Bangladesh if a judge writes judgement after retirement it is illegal and unconstitutional. We may logically claim that it is not the very writing judgement after retirement but the very comment of the Chief Justice is illegal and unconstitutional.
Nowadays Surendra Kumar Sinha is seen to sweep roads and paths and go on with cleanliness campaign. It is unknown if it falls under his official jurisdiction, or whether he wants to be a social worker or a politician like the Indian Prime Minister Narendra Modi. Every judge of any lower or higher court of any country, it is expected, keeps aloof from mass-communication and connection for the interest of the hierarchy of the judiciary; because such connection creates possibility of judicial bias. Depending on the view the Judiciary of Bangladesh was separated from the Executive in 2007 in view of the independence of Judiciary. Before that a Magistrate could act as an administrative officer as well as a judge trying a case in the courtroom thereby resulting in bias and injustice. Therefore, after the separation of the Judiciary, a Magistrate turned into a Judicial Magistrate and his function was confined to the courtroom; and the Administrative Magistrates were burdened with the administration. Such separation of work and etiquette is expected by the people from a Supreme Court Judge too. S K Sinha should not run beyond the expectation of the people, for he is no politician but a Judge. Probably his recent statement is the result and chronology of his so called political mind and social-work mentality.
The term 'giving judgement' must be clarified before any conclusion. 'Giving judgement' includes 'pronouncing judgement' as well as 'writing judgement.' It is correct that after retirement nobody remains a judge nor with oath. So (s)he cannot give judgements. What actually happens is that a judge gives judgement in an open court. He gives dictation there. It may not be pragmatic in most of the cases that he can complete giving judgement sitting on the chair of the courtroom (Ejlash). He merely completes the writing and declaration of the judgement succinctly and puts his signature with the date of so declaring. The rest of the load he has to bear after office hours. If he goes on retirement after the pronouncement, he needs to complete his task of writing that may take a couple of days, weeks, or even months. To our knowledge and experience, he doesn't put signature on the subsequent writing. It is merely and simply tagged with the previous writing that happened while he was in chair. So the question of writing judgement after retirement becomes irrelevant here. After so tagging of the subsequent writing with the previous succinct write-up it becomes the property of the judgement as briefly written and declared in the open court. Question, therefore, of writing the judgment after retirement should, prudently, not arise. No such question, relevantly, should be raised by the head of the Judiciary of the State.
The practice of writing judgement after retirement of judges of the higher as well as lower courts is seen in almost all cases in Bangladesh. It has been in practice since 1807 when court system was introduced in the Indian Subcontinent, particularly since 1862 when Calcutta High Court, the mother of the Indian High Courts, was established. In cases of the 5th, 7th, 13th, and 15th Amendment Case to the Constitution of Bangladesh, Majdar Hossain Case (following the judgement of which the Judiciary was separated from the Executive in 2007), Jail-Killing Case of the four National Leaders and in many other cases judges went on retirement after pronouncement of short judgements. Thereafter they completed writing the judgments. The cases mentioned here are remarkable and legendary in the legal, constitutional and political history and advancement of the country. The 5th Amendment case was declared void and of no effect of the Martial Law and the taking over power by Major General Ziaur Rahman. The judgement of the case was written by the then Chief Justice A B M Khairul Haq after he had retired. If it may be addressed sincerely, depending on present Chief Justice S K Sinha's comment the writing of A B M Khairul Haq is deemed to be illegal and unconstitutional, the very Martial Law and taking over power would become legal and constitutional. Would then it bring fortune for the nation? Similar thing has happened in case of the 13th Amendment case that declared caretaker government system void and of no effect. If S K Sinha is sustained the caretaker system, would not be void and so the present system of national polls under party-government, as well as the present Government elected under present system would become void. Interestingly in the same way, the portfolio of the present Chief Justice S K Sinha, who took oath under this Government, would be void too. What will happen other than lamenting?
It is more important now to point out another thing that shows such writing of judgements purely and surely legal and constitutional as well as the comment of the present Chief Justice illegal and unconstitutional. That so writing judgements is legal is proved by the definition of law as prescribed by article 152 of the Constitution of Bangladesh, the supreme law of the Republic. It says that the term 'Law' means any Act, ordinance, order, rule, regulation, bye-law, notification or other legal instrument, or any custom or usage, having force of law in Bangladesh. The definition includes, inter alia, custom having force of law in Bangladesh. What then is a custom? Custom is a long practice of some people in any particular locality or area, or district or class or even family. The definition is given in S N Koya versus Union (AIR 1967 Ker 259). The practice of writing judgements, after retirement of judges, in the cases mentioned above, has developed into a custom in Bangladesh; and all the events of these judgements got legal force in the country, for the judgements thereof are still in action. Therefore, the act of writing such judgements is a custom in Bangladesh that has gained legal force. As this is surely and purely a custom having legal force it is within the ambit of the definition of 'Law' as prescribed by the Constitution.
The practice of writing judgements in the manner as stated above is seen not only in Bangladesh but also in India, Pakistan, Sri Lanka, USA, UK and many other countries. This is, therefore, a custom having legal force not only in Bangladesh but also in other countries. It is obviously an international custom too.
Many scholars including judges, lawyers and academicians are found to support the view as proved above. The former law minister Shafiq Ahmed, the present Attorney-General Mahbub-E-Alam, the former Appellate Division Judge Shamsuddin Chowdhury Manik, Labour Appellate Tribunal Chairman Justice Shamsul Huda Manik, and Suranjit Sen Gupta MP are in line with the view as proved here. In such a situation it is expected that the Chief Justice S K Sinha's statement regarding the writing of judgements should not sustain. For the greater interest of the country the BNP leaders and lawyers should sincerely address the sensitive issue and be in line with what practically happens.
Someone is being heard to mention article 99(1) of the Constitution which provides that no judge shall, after retirement or removal, plead or act before any court or authority or hold an office of profit in the service of the Republic. They try to argue on basis of this article 99(1) that as the writing of judgement takes place after retirement it violates the article. But this is also not a right idea. Here again comes the same logic that either no signature is given on the judgement written after retirement or it contains the previous date of pronouncement of the judgement. So, no question of such pleading or acting, as mentioned in article 99(1), arises.
The debate, hence, could have some solutions. (1) In context of the present controversy of post-job judgement writing it should be declared by the Ministry of Law and Justice and Parliamentary Affairs judgements so written are valid. (2) As there is a trend among the retired judges and also scope to make unnecessary delay in writing judgements after retirement that usually causes and increases suit-jam and sufferings of the people, a time of six months or one year from the date of pronouncement of the judgement in open courtroom (Ejlash) may be fixed by the Law Ministry within which the retired judges are to complete the writing.
Dr Shahjahan Mondol is Professor and Chairman of Law, Islamic University Kushtia