OUR JUDICIAL STYLE | The Daily Star
12:00 AM, November 21, 2017 / LAST MODIFIED: 12:00 AM, November 21, 2017

LAW OPINION

OUR JUDICIAL STYLE

Style is the image of a character"--Edward Gibbon once intuitively put it. In judicial context, I mean it to refer the judicial process, the judges and their articulation and their way of presenting the facts and issues in a given case. Judicial style in Bangladesh is a less talked subject. It is so much less talked that one wonders whether we have got a judicial style at all. As a matter of fact, judicial style involves questions of public importance. For example, in the recent past, we have debated about the desirability of writing a judgment after a judge retires. The issue broadly was one of judicial style.

In the first place, the length and prolixity of judgments in Bangladesh should invite our attention. The people have interests, and arguably a right, in getting judgments which would be precise and lucid. I propose to call it 'linguistic justice' that better serves the purpose of knowing the law. The judges do supply fresh blood to the skeleton of legislative enactments through the device of statutory interpretation. In so doing, they should mean something for the justice seekers. Sadly, our judgments are full of complex sentences. They are often precarious, and at times, compromise one of the requirements of rule of law—certainty. They make the readers walk along the crisscross chariot of judicial opinions in a desperate search for the treasure trove—the ratio decidendi, that is, the reason of arriving at the decision concerned. Therefore, we need to consider what should and can be done about it.

It seems there is a steady and unnecessary increase of voluminous judicial opinions over the years. I feel sorry for the lawyers that they are to get the printed copies and preserve them for the future legal battle to prepare their submissions. At times, the reader may lose the logical flow and coherence of a judgment. Abdul Quader Mollah case (2013) offers a good illustration, where the Appellate Division spared 790 pages for three opinions. Having gone through this case, I got the impression that it could have been written in 200 pages without compromising the quality of the judgment. I also share the same feeling about the much-talked 13th Amendment case (2011) and 16th Amendment case (2017) comprising judgments of 747 pages and 799 pages respectively. The readers, needless to say, feel comfortable with the richness of interpretation that a judge has to offer. They hardly care about the length of the judgment.

An issue related to this point is the practice of judicial dissenting. The dissenting opinions in our case law are fewer. Most judges tend to concur. I am not sure—why. Is it because they simply agree with their judicial colleagues, or they want to pass their burden onto others, or they love to submit themselves to the personality and/or collegial influence of the leading judge, or do workloads compel them to concur? 

Even in constitutional judgments of great importance, there are either no dissents or separate opinions. In the 8th Amendment case (1989) each of the majority wrote own opinion, which increased the strength of collective reasoning. In contrast, the 16th Amendment case offers us an artificial sense of unanimity in the garb of separate opinions. Unanimous decision is sometimes preferred as the court may want to send a clear message to the justice seekers. The bad side of this idea is that it buries and blurs the differences and masks the complexities of the litigation. Therefore, the idea requires further expounding from researchers and jurists. Dissenting opinions help develop a strong communicative function of law, though they remain devoid of legal bites for the time being. They also remove the doubt of political influence that might have practised upon the judges. Moreover, dissenting opinions strengthen the merit of judicial culture and heritage. Justice ATM Afzal's powerful dissenting opinion in the 8th Amendment case (1989) still holds relevance to consider whether the HCD benches need to be convened in different parts of the country without offending the unitary nature of the State. We will have to encounter this question today or tomorrow. The dissenting opinions of Abdul Wahhab Miah J. in the 13th Amendment case and Mollah and Justice M. Imman Ali's dissent in the 13th Amendment case are mighty deliberations. The separate opinion of Moazzam Husain J. in Jamat-e-Islami Registration (2013) is also illuminating. Therefore, I should say that a collegiality of shared burden is required to expedite and enrich the process of judgment writing.

Another important point to look at is what our judges are reading and referring to. For, this issue is aligned with the philosophical differences between "law as will" and "law as the reason". In the 16th Amendment case, SK Sinha CJ has referred a plethora of foreign academic sources in asserting judiciary's power over the parliament. This reflects that judicial attitude towards academic works has changed a lot. However, academic-judicial cooperation is still a less explored area in our country, use of which may augment competitive nature of our judgments internationally. Let us remind that no academic was called as amicus curiae in the 16th Amendment case, where lawyerly wisdom prevailed.

A close look at the war trial cases (decided by the ICT-BD and the AD) also reveals that the judges have referred to a wide body of external literature apart from the case law and statutes. In one sense, it is good, but, in another sense, it may give rise to controversy if the external sources are not properly contextualised within the framework of facts and controversies of a given case. Justice AHM Shamsuddin Chowdhury's judgments in the 7th Amendment (2010) and Mollah (2013) accentuate this qualm. Moreover, the increasing trend of the judges in citing foreign authorities requires a second thought. We need to read the pains of millions of Ram-Rahim-Johns instead of worshipping Marbury-Madisons and Donoghue-Stevensons. However, we should have a close sight of legal and judicial developments in other South Asian jurisdictions to sharpen our own ability to shape a native jurisprudence. Added to this, the number of case law to be cited in a given litigation and the present utility of the cases cited are also relevant factors in controlling the length of judgments and mastering judicial competence.

Last but not the least, we should not overlook the pattern of our law reporting and reference. It is good that the Supreme Court has started publishing judgments online. But the website of the Court is frustratingly poor and inadequately data-based. It is almost impossible for independent researchers (i.e. who do not already know about the case they are searching for) to navigate the website for judgments. The digitisation project of the Supreme Court has not been able to challenge the monopoly of the private publishers. Judicial opinions are public property. As such, the concept of people's sovereignty demands that they should not be the subject of the commercial monopoly of private bodies.

For the cause of free thinking and legitimate judicial decision-making, the issues raised here are to be explored. The work of a judge is also an art. It is not an innovation, it is a creation. It should not only contain information of what was going through a judge's mind while he or she was trying a case, rather it also should be stylistically attractive to guide a comparative lawyer or a student of law or even a non-law folk to understand the reasons of the decision.

The writer is Assistant Professor of Law, Jagannath University.

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