Mahmudul Islam: A Banyan Tree of Wisdom in Our Judiciary

Mahmudul Islam, not only a famous lawyer but also an eminent personality in our judiciary who passes away at the age of 79 on 16 February. His death occur irreparable loss to the nation. He is the most talented constitutional jurist in the current era in the country. His book titled the Constitutional Law of Bangladesh is the most adorable and cited constitutional law book among others. As a legendary senior advocate, his role was vibrant. As an interpreter of law, his every word was a pearl of wisdom in the horizon of legal arena. Lifelong he fought for ensuring justice and rights of the citizen under the constitution and other legal frameworks. Indeed he was the lighthouse of our contemporary judiciary.

                                Photo: The Daily Star

            However, Mr. Islam made himself illustrious to others by his elite techniques of submission to the court. The unpretentious capitulations of this legend of wisdom magnated the judges towards his elucidation. The entire judiciary was benefited by his rare scholarly flair. His sober attitude to address the court was conspicuous. He was man of graciousness and was always tolerant of different points of view. Albeit he was gentle in his approach to the people as a whole but quite firm in his views. Even he never took much remuneration for his dedication from his client.

Mahmudul Islam was treated as torch-bearer in any treacherous situation in our judiciary and he handled the circumstance with his extraordinary brilliance. He led the nation in various critical periods like caretaker government into the right course to the future and he became the ethical voice of the nation.

            Apart from this contribution to the court, Mr. Islam contributed greatly to our legal studies also. This top legal brain’s most celebrated work i.e. the Constitutional Law of Bangladesh becomes an authority on Bangladesh constitution. Everyone from inside and outside the country is searching Islam’s constitution book to find out an exact interpretation on any constitutional matter. His thinking on constitutional affair was very blunt and he articulated his intelligence in an outspoken manner. It emerged as bible of constitutional law in Bangladesh. Even his book is the most cited book on constitutional law issues in our supreme court and judges are also relying impulsively on his thought and magical interpretation.

            Nevertheless, Islam was not confined himself in the royal arena of constitutional law. He introduced another branch of his acumen on civil procedure code along with the aid of Probir Neogi. Indeed his pen was a golden stick, what he touched turned into gold. Two volumes book on the Law of Civil Procedure is another treasured creation of Mahmudul Islam. This book is also referred as authoritative guideline for both subordinate and supreme judiciary. However, Islam’s book on Interpretation of Statutes and Documents was latest addition of his scholarly contribution to our legal education. This learned personality focused on our own style of interpretation. He was a jeweler who taught us to bring out the pearls from the mollusk. His sentences are lively and citations are practical to understand. His glorifying and glittering contributions throughout the whole life made him giant. In many occasions the Supreme Court had sought his opinion as amicus curiae in several significant cases like Quader Mollah case, 5 January election case, BDR mutiny case, 13th amendment case, 7th amendment case etc.

Mahmudul Islam was born in Rangpur in 1936. His father Azizul Islam was also a prominent lawyer in Rangpur. He passed his higher secondary level from Rangpur Carmichael college while he achieved his law degree from Dhaka University after completing honours and masters on political science from the same university. After the independence of Bangladesh, he received his LLM degree from Indiana University in the US. He started his initial career at Rangpur District Bar, later on he started practice in the High Court Division. He worked as a junior with lawyer Birendra Nath Chowdhury and then with Syed Ishtiak Ahmed. Mahmudul Islam became assistant attorney general in 1972. Then he served as the state’s top legal officer from 1998 to 2001.

This renowned figure passed away bodily but his enthusiastic legacy will encourage the whole nation for years to come spiritually and ethically. Not only the judicial premises, but also the whole nation will be indebted to Mahmudul Islam for his wisdom and great contribution to the country. He was an actual banyan tree of wisdom in our judiciary.

Published in the Daily Star's Law & Our Rights page on 23.02.2016 at P. 12 

Legitimacy of Writing Judgment after Retirement

“All the world over true peace depends not upon gunpowder but upon pure justice.”- Mahatma Gandhi.

The writing of a judgment is one of the most important tasks among other activities performed by a judge. Very recently a debate has been arising in our country whether a judge can write verdict after retirement. However, neither the Constitution nor the Supreme Court of Bangladesh Rules (both High Court Division and Appellate Division) have any clear cut provision regarding the time frame to write a judgment. Indeed in this country there is no time limit to finish the writing of a judgment. It totally depends upon the discretion of the concerned judge. Nevertheless it is a time consuming task and it takes major part of judge’s work. Moreover, backlog of cases has put a great pressure on the judges to accomplish their duties timely. 

            The judgment writing offers occasions for judicial officers to express his/her own ability and his/her worthiness to be a member in the high tradition of moral integrity and social utility. The judgment is also a reflection of the conscience of a judge, who writes it and evidences his impartiality, integrity and intellectual honesty. However, a judgment is not written only for the benefit of the parties concerned. It is also written for the benefit of legal profession, other judges and the appellate courts ultimately. Before scripting a judgment a judge must consider that he is performing a public act of communicating his opinion on the issues brought before him and after the trial by observing fair procedures. It is basically a communication to the parties coming before him for a decision.

However, there is a golden saying that “Judgment delayed is judgment denied”. It is perfectly understandable that litigants should expect to know of the outcome of their cases and the reasons behind it as soon as practically possible. Depending on a number of factors, including time, constraints, the nature of the evidence led and the complexity of the matter, both in terms of facts or the applicable law and the importance and urgency of the case, one is expected to deliver a judgment soon after the case is finalised. However, it becomes a custom in our country that judge pronounces the decision in open court immediately after completing the trial processes and delivering detail judgment at his own convenience even after retirement. It is expected by all that no judge should delaying in deliver his judgment. However, a judge may seat for hearing till his last day of service which makes the thing difficult. Problem arises when a judge pronounced his/her decision during his tenure and giving detail verdict at a latter time after his service period. Due to absence of any clear cut provision, a question has arisen whether it is legal. There is no law or judgment on this particular matter. Nevertheless unreasonable delay may bring severe consequences for the justice seekers even it can frustrate the outcome. Invariably this result in inordinate delays and worse may result in the judicial officer not being able to recall the reasons which prompted him/her to make the order that he/she made.

Now question comes whether a retired judge can handle public document. The answer to this question is not too easy. Generally he cannot. But what happen if it requires to give the full judgment what s/he declared earlier? Again there is no law or ruling on this point. Though he announced his decision and needs to show his contention hence he may be permitted to do it within possible shortest time unless contrary is being enacted by the parliament or settled by the court. Otherwise, many of the earlier landmark decisions will become invalid. Additionally, a Supreme Court judge has some embargo even after his retirement. So mere retirement may not ceasing his capacity to write judgment. Furthermore, in this particulars case, he only deals with the documents relating with his given decision which is necessary to accomplish the whole process of justice. If one is not allowed to do it then something must be invented to give redress to the justice seekers.

On the contrary, in some exceptional cases, a judge may not being able to reach his/her decision without being conversant with the matter appropriately. In that case he may take time to declare his decision. However, in Anil Ray v State of Bihar, AIR (2001) SC 3173 the Indian Supreme Court held that as the pronouncement of the judgement is a part of justice dispensation system, it has to be without delay and the court bind the time limit to three months to deliver judgment. In addition, it suggested some ways to the Chief Justice of India to make the process speedier. Similarly our Chief Justice can take necessary steps to make it binding to deliver judgment within possible shortest time.

However, according to Justice Sunil Ambwani of Allahabad High Court, India; there is a difference between neutrality and impartiality. Impartiality requires cool reason uncontaminated thinking without being influenced by personal commitments, biases and preconceptions. The neutrality on the other hand means the judge is non-aligned. A Judge may being neutral and continue to be so in the process of the trial, but at the end he has to decide the case in favour of either of the parties without any partiality. Impartiality requires a judge to rise above all values and perspectives. 

Published in the Daily Sun on 03 February 2016 at Post-Logue page (P. 7).