Hats off to the Chief Justice Surendra Kumar Sinha for his remark that writing of judgments after judges' retirement is unconstitutional. He said this on the occasion of the 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. It 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 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, a judge is not oath- bound as above.
Secondly, he cannot keep court documents in his possession after retirement.
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 caretaker government?
The short order might have been issued after completion of all hearings or after, as usually and normally, drafting of the full judgement. Only nitty-gritty refinement of the full judgement might have taken a few more days. But a period of 16 months' delay to do that and insertion of some new inputs may raise questions.
When a judge is retired, he is no more under oath. As such, he cannot and must not sign a judgement which he did not sign earlier.
Justice T.H.Khan rightly stated that no judge should have signed a judgement after retirement. Barrister Rafiqul Huq, a senior lawyer of high repute, also opined in the same vein on a TV channel.
Some references may be cited: Canadian Chief Justice John Owen Wilson on signing of judgement after retirement said, "A month's delay is normal. Two months' delay is long. And three months' delay is too long."
Section 41.1(1) of the Canadian Supreme Court Act 2001 says, "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.
Justice Willes of the English Court of King's Bench in a 1759 case, Whitham versus Hall, said,
"Delaying justice and denying justice are considered as the same thing in the Magna Carta."
We should develop and implement a system similar to that of the Canadian Supreme Court. This will upgrade our judicial procedures and remove, far as possible, all shortcomings, misrepresentations and misgivings.
The writer is a former State Minister, Ministry of Civil
Aviation and Tourism and Textiles and a former president of
South Asian Federation of Accountants (SAFA).