05/02/2016
Thoughts from Masum Billah sir on the prevailing culture of judgment writing in Bangladesh:
I think the issue is not that simple as SK Sinha CJ puts it. However, I agree with his view in spirit. The other views also have some grounds. But as a whole, the issue of writing judgments demands a serious study. The question, for me, is not only about writing a judgment after retirement, but also about the complete pattern of our court's work. We need to address them realistically.
Firstly, the length and prolixity of judgment in Bangladesh is a concern for us. Judgments should be written in simple language (preferably in simple Bangla). They give life to legislation. As such, they should mean something for the justice seekers. Our judges are engaged in an uneventful exercise of writing complex sentences. They make them precarious and often compromise one of the basic elements of rule of law--certainty. They put the readers into a mine in a desperate search for the gold of ratio decidendi. This needs to be discouraged. I have also seen that judges do write unnecessarily lengthy judgments. At times, the paragraphs of the judgments lack logical flow and coherence. Quader Mollah case is a good illustration, which spares 792 pages. Having read it, I got the impression that it could have been written within 200 pages in a clearer way. I also express the same view for the controversial 13th amendment case (747 pages!). Our judges need to understand that quality of the judgment depends on the richness of interpretation, not on the page numbers (note: I am, in principle, fond of CJ Khairul Haque’s judicial acumen).
Secondly, in my reading, I have seen that dissenting opinions in our judiciary are fewer. Most judges tend to concur. I am not sure—why-- is it because they simply agree; or they want to pass their burden on the shoulder of their colleagues; or they love to submit themselves to the personality and attitude of the author judge; or workloads do compel them to concur? I agree that judges might want to send a clear message to the justice seekers in the case of unanimous decision—perhaps by ‘burying and blurring their differences and masking the complexities’ of the context. But we need to be sure about this intention. Dissenting opinion develops a healthy practice of law, though they become impotent for the time being in order to fruit into law. It also removes the doubt of political influence that might have been played on the judges. Dissenting opinion, moreover, strengthens the merit of judicial culture and heritage. I should say that a collegiality of the judges is required to expedite the process of judgment writing.
Thirdly, it’s important to see what our judges are reading and referring to. For, this issue is aligned with the philosophical differences between “law as will” and “law as reason”. In war trial cases, I have seen that the judges have referred a wide body of literature other than the case laws and legislation. In one sense it’s good, but in another sense, it may give rise to controversy, if they are not properly cited and contextualized with the fact in issue of a given case. Justice Shamsuddin Chowdhury’s judgments in 7th Amendment Case (2010) and Quader Molla Case (2013) accentuate this doubt (though I agree with the outcome of these two cases). Moreover, the increasing trend of the judges in citing foreign decisions/authorities require a second thought. We need to increase referring to our own cases, or at best the South Asian cases to sharpen the ability to shape our own jurisprudence. The number of case laws to be cited in a given litigation and the age of the referred cases (precedents) are also relevant in controlling the length of judgments and ensuring the soundness of judicial decisions.
Last but not the least, the pattern of the law reporting should draw our attention. It’s good that the SC has started publishing judgments online. But the SC website is frustratingly, poorly and inadequately articulated and presented. It has not been able to challenge the monopoly of the printing and online private publishers. Judicial opinions are public property, as such, rule of law and people's sovereignty demand that they should not be the subject of commercial monopoly and the CJ should take immediate steps to make them readily available to the greater public.
Having said so, I should mention, that the judges should take care that they are not adventurers. Present or retired, they should weight themselves and not portray as judicial politicians.
