Writing judgments after retirement of judges not wrong

Eminent jurists say

Published :Saturday, 23 January, 2016, Time : 12:00 AM View Count : 41
Pulack Ghatack
Writing of judgments elaborately after retirement of the Supreme Court judges is not illegal or
unconstitutional, as the verdicts are pronounced by the benches before retirements, noted jurists of the country
have said.
The recent remark of the Chief Justice in a personal message questioning legality of writing judgments by
retired judges is not correct and it has no legal implication, as it is not any "judicial pronouncement," the legal
experts said.
Eminent lawyers Barrister Rafiqul Haque, Barrister Shafique Ahmed, Justice Amirul Islam and Attorney
General Mahbubey Alam unequivocally said that there is nothing in the Constitution or any law forbidding the
judges to write complete texts of judgments after retirement.
Chief Justice Surendra Kumar Sinha's recently remarked that writing judgment after retirement is
'unconstitutional'. "Because after retirement," explained Justice Sinha, "a judge is merely a regular citizen and
the oath of office he took before ceases to be in effect.
BNP and its lawyers in a political quip said that the judgment that annulled the 13th Amendment to the
Constitution was 'illegal', as it was written after retirement of a judge. The amendment, adopted in 1996,
introduced the provision for a non-party caretaker government to oversee national elections.
Eminent lawyer Barrister Rafiqul Haq said, "The Chief Justice's remarks are not the part of any judgment. It is
his personal opinion."
He categorically said, "There is no legal bar to write judgments after retirement of Supreme Court judges."
This is a common practice, not only in Bangladesh but also in other countries. However, the judges in other
countries do not take two or three years like that of the judges in our country. They release the texts as early as
possible. The Chief Justice might have said this to discourage the delay in writing judgments," Rafiqul Huq
added.
Responding to a question he said, "How can a judge complete writing of judgments in detail before retirement,
if he retires within days of delivering a verdict. It is not possible."
Noted lawyer Barrister Shafique Ahmed said, "There is no provision in the Constitution barring the retired
judges to write judgments which were pronounced before their retirement. There is no law and no rule to
restrict it. Even the Supreme Court's rules do not bind the judges to complete writing of judgments before
retirement."
The former Law Minister said that BNP was trying to use the Chief Justice's remark for the party's narrow
political purpose. "The BNP leaders are trying to raise debate over a settled issue," he opined.
"The provision of caretaker government was repealed by the Parliament through the 15th amendment to the
Constitution with an overwhelming majority. So the provision now does not exist," he also said.
"When the judgment was delivered, he was a judge. That is the main thing. The written text makes the
judgment elaborate citing arguments, laws and previous judgments of different countries. It may take time,"
Barrister Shafique said.
He said, "If writing the verdict after retirement is illegal, then many cases, including the one of Masdar
Hossain, will not prevail. Because Justice Mostafa Kamal wrote the verdict of the Masdar Hossain case after
his retirement," said the former Law Minister. District judge Masdar Hossain's legal battle led to the judiciary
being freed from the executive.
Former Supreme Court judge Justice Syed Amirul Islam said, there is no problem with judges writing
pronounced verdicts after retirement. "In these cases, the judge has already pronounced the verdict, only the
writing remains. I don't believe it is unconstitutional for them to write verdicts during the retirement days," he
said.
On the Chief Justice's comment that the oath as a judge does not work after retirement, the retired judge said,

"I can't issue judgments after retirement. But I think there is no legal or constitutional bar if a verdict is issued
before the retirement but written after that."
Recalling the verdicts he had written, he said, "I went on retirement on Jan 12, 2007. I wrote unfinished
verdicts until Feb 28, 2007, but I had delivered them during my time as a judge.
"It has been a common practice in this subcontinent for a long time. The system (of writing verdicts) existed
long before Bangladesh became independent," he said.
About the BNP's claim that the judgment declaring the 13th Amendment illegal is itself 'illegal', Syed Amir
says, "I think a point may be raised about him (Chief Justice) meaning that a judge hears a case but goes on
retirement with the verdict pending."
Attorney General Mahbubey Alam does not see the writing of a pronounced judgment after retirement as a
breach of the law. He said Justice Sinha 'was only trying to emphasise that the people have a right to get
justice'.
Attorney General Mahbubey Alam said, "I believe the Chief Justice made the remarks considering the current
circumstances."
"Because there is talk at the High Court that verdicts passed long ago are yet to be signed. I believe he (Chief
Justice) made his observations so that people can receive verdicts as soon as they are passed."
The BNP has been protesting ever since the Awami League government brought the 15th Amendment to the
Constitution to repeal the caretaker government system. The move followed a short order by the Supreme
Court.
In reaction to his remarks, Attorney General Alam said the party 'misinterpreted' Justice Sinha's comments.
"It's totally an attempt to gain political profit. They promptly misinterpreted the Chief Justice's comments
about the 13th Amendment and the legitimacy of the government," he said.
"It's totally unacceptable, and their remarks are unconstitutional and far removed from reality," he added.

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