A. Mannan :
My hat’s off to the Hon’ble Chief Justice (CJ) of Bangladesh for his remarks on writing judgment after retirement as unconstitutional. He made this remark on the occasion of first anniversary of his taking office as the 21st Chief Justice.
We all know that a Judge is under oath as per the Third Schedule of the Article 148 of our Constitution that prescribes a format for ‘Oath and Affirmation’ for Judges as “I …………… having been appointed Chief Justice ……………. or Judge………”
“That I will preserve, protect and defend the Constitution and the laws of Bangladesh”
Of the above format a few words stand out that are worth recognising. These are ‘Will’, ‘Preserve’, ‘Protect’, ‘Defend’ and ‘The’ (before the word Constitution). ‘Will’ instead of ‘Shall’ means it is binding and mandatory and ‘The’ means the very Constitution as was in vogue on the day of ‘Oath’ taking.
After retirement he is not under Oath bound as above.
Secondly, he can not keep Court documents under his possession after retirement either.
The CJ’s remark is undoubtedly praiseworthy and highly appreciable, though it fell short of, to a degree, completion so needed for the country. He knew, I am sure, of it but refrained, perhaps, from elaborating, fortuitous or deliberate.
Here, I am inclined to quote from my own article published in the news papers titled as “Catechism of a couple of politically important court judgments” -The New Age on 07.10.2012 and “Judgment in ‘Kalidas Pandit’s Style!” – The New Nation on 09.10.2012 and also my book titled as “How precious is an Oath” as follows:-
The Judgements include, inter alia, that of the Appellate Division, Full Judgement dated 01-02-2010 on the Fifth Amendment and the Short Order (01-05-2011) and Full Judgement (16-09-2012) on the Thirteenth Amendment of our Constitution.
Why was there a gap of 16 months in between short order (on 10/05/11) and full Judgement (on 16/09/12) on the Care-taker Govt.? Who can vouch that there had not been substantial change in scenarios in between? Moreover, how can an Hon’ble Judge sign a Judgement after his retirement?
Short order might have been issued after completion of all hearings as well as after, usually and normally, drafting of full Judgement. Only for nitty-gritty refinement the Full Judgement may take a few days more. But a period of 16 months delay to do that as well as some new inputs having been inserted, may raise a question like ‘dal mei kuchh kala hai’ i.e.- dubious suspicion. Short order to expedite things, in judiciary, is not also praiseworthy, for justice hurried is justice buried. It smells rat.
Moreover, all the 7 concerned Hon’ble Judges, having signed the Full Judgement shall remain responsible for the new inputs added in the Full Judgement though these were not in the Short Order.
When a Judge (say, CJ) is retired he is no more under oath. As such he can not and must not sign a Judgement which he did not sign earlier.
There are no such instances. Justice T.H.Khan rightly stated as to no Judge should have singed Judgement after retirement. Barrister Rafiqul Huq, a senior lawyer of high repute, also opined the same way on a TV-Channel, that except, as he stated, a single case as far as he remembered, when the Hon’ble Judge died an exception was made within the parameters of laws.
Some references as under may be cited: – case no. (i) Canadian Chief Justice John Owen Wilson on signing of Judgement after retirement said:-
‘A Month delay is normal. Two months delay is long. And Three months delay is too long.’
Case no. (ii) – Canadian Supreme Court
C.U. V Alberta (2004) SCR
Section 41.1(1) of the Canadian Supreme Court Act 2001:- A Judge of the Supreme Court of Canada who has retired may, with the approval of the Chief Justice of Canada continue to participate in Judgements in which he or she participated before retiring, for a period not greater than six months after the date of the retirement.
As a matter of fact a delay of 16 months is obviously uncondonable. The full Judgement after 16 months tends to be an infraction, for we all know Justice delayed, Justice denied.
Case no. (iii) “Delaying justice and denying justice are considered as the same thing in the Magna Carta,” by – Justice Willes of the English Court of King’s Bench in 1759 case Whitham V Hall.
I am also keen to suggest, should I be so permitted, to urge upon the CJ to develop and implement a system as more or less as that of the Canadian Supreme Court mentioned under ii as above referred from my book “How precious is an Oath”.
Let us set aside “hurried and buried” or “delayed and denied” phraseological notions but do it the way as suggested to upgrade our judicial procedures and bury as far as possible all short comings, misrepresentations and misgivings.
My hat’s off to the Hon’ble Chief Justice (CJ) of Bangladesh for his remarks on writing judgment after retirement as unconstitutional. He made this remark on the occasion of first anniversary of his taking office as the 21st Chief Justice.
We all know that a Judge is under oath as per the Third Schedule of the Article 148 of our Constitution that prescribes a format for ‘Oath and Affirmation’ for Judges as “I …………… having been appointed Chief Justice ……………. or Judge………”
“That I will preserve, protect and defend the Constitution and the laws of Bangladesh”
Of the above format a few words stand out that are worth recognising. These are ‘Will’, ‘Preserve’, ‘Protect’, ‘Defend’ and ‘The’ (before the word Constitution). ‘Will’ instead of ‘Shall’ means it is binding and mandatory and ‘The’ means the very Constitution as was in vogue on the day of ‘Oath’ taking.
After retirement he is not under Oath bound as above.
Secondly, he can not keep Court documents under his possession after retirement either.
The CJ’s remark is undoubtedly praiseworthy and highly appreciable, though it fell short of, to a degree, completion so needed for the country. He knew, I am sure, of it but refrained, perhaps, from elaborating, fortuitous or deliberate.
Here, I am inclined to quote from my own article published in the news papers titled as “Catechism of a couple of politically important court judgments” -The New Age on 07.10.2012 and “Judgment in ‘Kalidas Pandit’s Style!” – The New Nation on 09.10.2012 and also my book titled as “How precious is an Oath” as follows:-
The Judgements include, inter alia, that of the Appellate Division, Full Judgement dated 01-02-2010 on the Fifth Amendment and the Short Order (01-05-2011) and Full Judgement (16-09-2012) on the Thirteenth Amendment of our Constitution.
Why was there a gap of 16 months in between short order (on 10/05/11) and full Judgement (on 16/09/12) on the Care-taker Govt.? Who can vouch that there had not been substantial change in scenarios in between? Moreover, how can an Hon’ble Judge sign a Judgement after his retirement?
Short order might have been issued after completion of all hearings as well as after, usually and normally, drafting of full Judgement. Only for nitty-gritty refinement the Full Judgement may take a few days more. But a period of 16 months delay to do that as well as some new inputs having been inserted, may raise a question like ‘dal mei kuchh kala hai’ i.e.- dubious suspicion. Short order to expedite things, in judiciary, is not also praiseworthy, for justice hurried is justice buried. It smells rat.
Moreover, all the 7 concerned Hon’ble Judges, having signed the Full Judgement shall remain responsible for the new inputs added in the Full Judgement though these were not in the Short Order.
When a Judge (say, CJ) is retired he is no more under oath. As such he can not and must not sign a Judgement which he did not sign earlier.
There are no such instances. Justice T.H.Khan rightly stated as to no Judge should have singed Judgement after retirement. Barrister Rafiqul Huq, a senior lawyer of high repute, also opined the same way on a TV-Channel, that except, as he stated, a single case as far as he remembered, when the Hon’ble Judge died an exception was made within the parameters of laws.
Some references as under may be cited: – case no. (i) Canadian Chief Justice John Owen Wilson on signing of Judgement after retirement said:-
‘A Month delay is normal. Two months delay is long. And Three months delay is too long.’
Case no. (ii) – Canadian Supreme Court
C.U. V Alberta (2004) SCR
Section 41.1(1) of the Canadian Supreme Court Act 2001:- A Judge of the Supreme Court of Canada who has retired may, with the approval of the Chief Justice of Canada continue to participate in Judgements in which he or she participated before retiring, for a period not greater than six months after the date of the retirement.
As a matter of fact a delay of 16 months is obviously uncondonable. The full Judgement after 16 months tends to be an infraction, for we all know Justice delayed, Justice denied.
Case no. (iii) “Delaying justice and denying justice are considered as the same thing in the Magna Carta,” by – Justice Willes of the English Court of King’s Bench in 1759 case Whitham V Hall.
I am also keen to suggest, should I be so permitted, to urge upon the CJ to develop and implement a system as more or less as that of the Canadian Supreme Court mentioned under ii as above referred from my book “How precious is an Oath”.
Let us set aside “hurried and buried” or “delayed and denied” phraseological notions but do it the way as suggested to upgrade our judicial procedures and bury as far as possible all short comings, misrepresentations and misgivings.
(Abdul Mannan is a former State Minister, Ministry of Civil Aviation & Tourism and Textiles, GoB and former President, South Asian Federation of Accountants (SAFA) E-mail : [email protected], [email protected])
