Timely availability to serve justice better, say experts

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Some senior lawyers and former judges believe quick and full delivery of the Supreme Court (SC) judgments, particularly the ones of crucial importance, would allay concerns among the litigants and lawyers.

Talking to The Daily Star recently, they said they are interested to know observations and findings of the Appellate Division of the SC in the judgments it pronounced of late only by saying “appeal allowed”.

Describing the judgments as important for the nation, they said people have a right to know on what arguments and laws the decisions were based.

In its judgments on April 23 and May 8, the apex court has cleared the way for trial of all cases under the emergency power rules (EPR) and declared the High Court (HC) has no authority to grant bail in those cases.

The lawyers concerned said they have yet to receive a copy of the judgments and have a look at the content.

They, however, said workload of the judges and time constraints can often cause delay in readying the judgments.

Attorney General (AG) barrister Fida M Kamal said the Appellate Division’s taking time in issuing full text of a judgment is quite normal and there is no alternative to this practice.

He said, “All opinions, submissions and views made by counsels for both the sides in a case are included in the complete judgment and so taking time in doing the job is natural and inevitable.

“The media can publish the apex court judgments only on receipt of their certified copies.”

He said it is not possible for anyone other than the judges involved to know the details of the judgments before pronouncement.

“According to rules, the Appellate Division is to pronounce only the portion of a judgment containing orders while the High Court (HC) division is to deliver a judgment in its entirety in open court,” he said.

Legal expert Dr M Zahir said it is a mater of great concern for clients, lawyers and citizens that it takes a long time for a judgment to be transcribed and signed as well as to be copied and sent to those concerned.

“Without a full judgment, we cannot be sure on the basis of what the court has announced its decision. Any delay over a week frustrates public enthusiasm for knowing the judicial decisions,” he observed.

Barrister Rafique-ul Huq, a senior lawyer and defence counsel in a case under the EPR, said the full judgment should be delivered at the quickest possible time in open court so that all can know the findings and observations of the Appellate Division.

“In the past, publishing copies of the Supreme Court judgments would not take so long,” he added.

Supreme Court Bar Association (SCBA) President barrister Shafique Ahmed said if the judgment of the Appellate Division was delivered the way it is done in the HC, lawyers could draw attention of the learned judges whether any points have been missed.

Besides, the lawyers in that event could further explain if any other point is required to be made.

“Had the two judgments by the apex court been made in presence of lawyers from both the sides, it would have helped the judges as well as lawyers in recording facts and legal points properly.

“Sometimes, if a judgment is delivered long after the end of hearing and that too not in open court, it is possible that it [the judgment] may not contain all points raised by the lawyers. And that may result in omissions and mistakes,” he said.

The judgments if pronounced in open court with the media allowed to be present can be made public, because they become a public property after its delivery, noted the SCBA chief.

Justice AHM Shamsuddin Chowdhury, former HC judge, said, “The Appellate Division is the top court of the land and under our constitutional scheme legal principles enunciated by it are binding on all the courts and tribunals of the republic.

“Hence, we do obviously remain anxious to obtain full text of the important decisions of the Appellate Division, particularly of the ones having overriding impacts. But, at the same time, ever existing workload on the judges cannot be overlooked.”

He said usually a case at the Appellate Division is heard by a bench of at least three judges. “All the judges sit in the court and hear cases five days a week. So, their time is divided between hearing of cases and writing of the judgments, which can be very lengthy in respect of important cases. In view of these factors, some delay in publication of the full text is inevitable,” he observed.

Justice Chowdhury continued, “Delays do take place in publishing full text of the apex court’s decision even in the United Kingdom, India and other countries. However, I am not aware of any inordinate delay.

“It will obviously satisfy the need of the media, if the salient features of a judgment are pronounced in open court, but the time constraints must also be considered by the media and the general people. It has to be kept in mind that writing judgments is time-consuming. It’s not like writing an essay.”

The former judge said a great deal of concentration and mind jogging is required to write a judgment. The media should be on the lookout and publish the main points when those are available.

Former vice-chairman of Bangladesh Bar Council Khondker Mahbub Hossain said they still do not know the observations made by the full court of the Appellate Division in its recent two judgments allowing the appeals filed by the government.

“If we find missing any provision of the emergency power rules whereby granting bail to the accused has been debarred, we shall file review petitions for reconsideration of the said judgment.

“From any view of the matter, it is not befitting to make any adverse comment about the highest judiciary. It is also the duty of the media not to make any comment or publish any statement in this respect without knowing the exact content in the judgments,” he said.

Senior SC lawyer ABM Nurul Islam said the judgments should be delivered in open court.

“The High Court division pronounces a judgment in open court, which is signed by the judges after being typed by the stenotypists (bench officers). But it has been a longstanding tradition in the Appellate Division that only the result of the case–whether allowed, dismissed or rejected–is pronounced in open court. As a result, lawyers, clients, press and other interested parties remain in the dark about details of the findings and observations of their lordships that are very much pertinent,” he said.

Islam said the SC rules should be amended and modified by introducing the same system as that of the HC division for pronouncing the whole judgment to relieve tension of those concerned.

Former HC judge AFM Mesbauddin Ahmed said as per the rules the chief justice assigns a judge to prepare the judgment and thereafter those who were the members of the bench peruse the draft.

“The other judges may or may not agree with the draft judgment or they may add more to it. That is why, time is needed to publish the full judgment of the Appellate Division,” he explained.

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