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). 

Maternity benefits for pregnant worker

This has been often a common phenomenon in Bangladesh that female workers give birth at their work places like factories or mills. This is just one of the scenarios of our worker’s rights where even they pay their live to earn. This incident illustrates that apart from ordinary rights factory authorities are very reluctant to ensure maternity benefits while a mother worker needs extra care and attention during pregnancy. 

 Photo: Better Work

However, government has approved six months maternity leave along with other benefits for govt. employees only on the opposite side our existing labour law allows maximum sixteen weeks maternity leave with full payment preceding and following the day of her delivery for the female workers who have not more than two alive children and who serves not less than six months immediately preceding the day of her delivery to her employer. However, maternity leave means the period of absence for which a female worker will be permitted to get salary and other benefits from her employer to give birth and taking care of her newborn child.

Nonetheless, no employer can employ a woman in his/her establishment during the eight weeks immediately after the delivery. In addition, if there is reason to believe that or if any female worker has informed her employer that she is likely to be delivered of a child within ten weeks then the employer shall not employ her for doing any work which is of an arduous nature or which involves long hours of standing or which is likely to adversely affect her health.

Procedure to take leave: Every pregnant woman entitled to maternity leave may give notice either orally or in writing to her employer that she expects to be confined within eight weeks. Any woman, who has not given such notice and has been delivered of a child shall give similar notice to her employer within seven days that she has given birth to a child. After receiving the notice the employer is bound to permit the women to absent herself from work from the day following the date of notice.

Procedure to pay maternity benefits: An employer shall pay maternity benefit wholly in cash to a woman in such one of the following ways as the woman desire, namely (a) for eight weeks before delivery, within three working days of the production of a certificate signed by registered medical practitioner stating that the woman is expected to be confined within eight weeks of the date of the certificate, and for the remainder of the period for which she is entitled to maternity benefit within three working days of the production of proof that she has given birth to a child or (b) for the said period up to and including the day of delivery, within three working days of the production of proof that she has given birth to a child, and for rest of the period, within eight weeks of the production of such proof or (c) for the whole of the period, within three working days of the production of proof that she has given birth to a child. However, a woman shall not be entitled to any maternity benefit or any part thereof, is she fails to produce the proof that she has given birth to a child within three months of the day of her delivery.

Payment of maternity benefit in case of woman’s death: If a female worker dies at the time of her delivery or during the next period of eight weeks, the employer shall pay the amount of maternity benefit due, if the newly born child survives her, to the person who undertakes the care of the child, and if the child does not survive her; to the person nominated by her or if she has made no such nomination, to her legal representative.

If a woman dies during the period for which she is entitled to maternity benefit but before giving birth to a child, the employer shall be liable only for the period up to and including the day of her death, provided that any sum already paid to her in excess of such liability shall not be recoverable from her legal representative, and any amount due at the woman’s death shall be paid to her nominated person or to her legal representative.

However, no employer can discharge, dismiss, remove or terminate the employment of a woman within a period of six month before and eight weeks after her delivery without sufficient cause to deprive her from maternity benefits. Additionally, where forty or more women work in a factory and they have child under the age of six then the employer shall arrange sufficient number of  hygienic rooms for that children where experienced and trained women will take care of them.

Hence, law is enough to ensure rights for pregnant worker though there exist a discrimination between govt. and private employees and between worker and managerial employees. However, proper compliance with the law can protect every right for the workers. Alternatively, state should bring the violator before justice.

Published in the Law & Our Rights page (P. 12) of The Daily Star on 29.12.2015. 

Law Book Review: Juris: A Juristic initiative by most talented folks

Title of the Book: Juris: A layman’s guide to the law

Editor: Abdullah Al Arif

Publisher: Palal Prokashoni

First Published: July 2015

 Price Shown: BDT 400, US$ 20

Cover Design and Illustrations: Sabyasachi Hazra, Syed Rashad Imam Tonmoy, Rio Shuvro and Priyo

Total Pages: 284 

 

Juris: A layman’s guide to the law is the most recent initiative to bring the law to the mass people of the country. The title of the book itself reflects that it is a simplification of daily life laws aiming to provide basic legal knowledge to the community. Actually the book is a compilation of 84 selected write ups write by about 35 most talented young legal minds in present Bangladesh which were regularly published in a daily newspaper’s weekly law page. The manuscript tries to transmit a new dimension of most functional legal topics from a page of newspaper to a handy piece of book; which also restrains some brilliant ideas from trailing it to the womb of time.  Consequently, it contains diversity of thoughts on various contemporary and controversial legal issues. 

 

In Bangladesh, law has remained in the hand of the learned practitioners and in the grasp of the elite while it should be understandable to all and all should have some basic acquaintance with their legal rights and responsibilities, Zafar Sobhan, Editor of Dhaka Tribune urged this in his forwarding. Moreover; more formal, unusual and complex legal language is a great barrier for the mass to interpret and appreciate it in simplest way.

This hardback is alienated into twenty nine different topics wise segments. The editor started his journey with Women’s rights; most buzzing issue in our socio-legal perspective. The title of the opening article is “From the bed room to the courtroom” by Barrister Farzana Hussain where the author argued to bring out our bedroom issues into the light of courtroom. Marital rape, an unsung paradox in the country is being discussed comprehensively. Apart from this, many other vibrant and courageous views are being discussed in this portion i.e. character in rape trial, domestic violence, skin colour discrimination in TV commercials, vulnerability of female garments worker etc. These opinions are not only new addition to our legal fraternity but also an invitation to break the culture of taboo which we foster for a long in our society. The title of next section is Legal know-how. It is significant to introduce the procedure before the reader. This chapter emphasized on procedural matters to enforce one’s rights. Further, a variety of fees are not revealed in reality which is addressed properly. The book doesn’t confine itself in mere theory rather it actually attempts to empower people by educating them about their rights as well as informing tools to obtain those rights. 

Following two chapters inscribe on legal system and legal education. Reporting on court proceeding now becomes a cautious issue regarding contempt. Hence, subsequent portion focused on matters relating to freedom of expression. Constitution now turns into a fashionable word but what constitutes a constitution? S M Masum Billah, a PhD candidate at Victoria University of Wellington raised this question in constitution chapter. After that Abdullah Al Arif dedicates a chapter for protection of children’s rights.  However, later some judges enlightening us by discussing insight story of the judiciary. 

Each page of this paperback gathered different of opinions and views. A lot of topics are covered under a single shadow. In addition, relevant cartoons after regular interval increase the magnificence of the book which successfully retain readers’ concentration on the topic and make it more understandable to them. To prove the truth of multiplicity, this layman’s guide contains many practical issues like human trafficking, tort, alternative dispute resolution, intellectual property rights, labour and employment, right to information, prison reform, police reform, international law, refugees, nationality and citizenship, human rights and humanitarian law, maritime boundary, drug adulteration, food safety, medical malpractice, rights of the ethnic community, rights of the people with disabilities, right to third gender. Moreover, it portraits on legal luminaries, book review and so on. 

After finishing the reading one may ask anything remaining? Actually, nothing else is remaining in this single petty book. Topics selection and synchronization are excellent in one word for which behind heroes deserves thanks. However, explaining legal formalities in casual lexis is not simple task. Nevertheless, the contributors and the editor mutually do this fruitfully. The terminologies used in this book are very straightforward and reader friendly which makes it layman’s guide in true sense. Consequently, if one initiates to read these interesting articles s/he can’t leave before finishing. After finishing s/he will realize what s/he earns from the book without intention to become conversant in law. However, I want conclude by mentioning a quotation from its introduction by S M Masum Billah that ‘laws are full of contradictions and ambiguities…………..we need to learn to live with the ambiguities and explore how those can be translated into the strength of law’.

Published in the Law &Our Rights, The Daily Star on 03.11.2015 at P. 12. 

How to do mutation of a piece of land

Mutation means insertion of the name of the new owner in the Khatiyan (Record of Rights) instead of the former owner after transferring the ownership of a land. Mutation is indispensable to establish the proprietary rights over the property. Moreover, it is essential to create new holding for the purpose of payment of rent in own name which will avert further complicacy in terms of possession and enjoyment of that land. 

Ownership may be transferred through kabala/sell, gift, exchange, will, waqf, inheritance or by the Govt. through settlement of khas land to the landless. However, one cannot claim ownership of a piece of land officially without presenting the document of mutation. Additionally, without mutating the name of the new owner there is high possibility to transfer the property again by the former owner. Because he/she is the documentary owner of that land until the necessary changes took place in the Khatiyan. In addition, mutation is essential to transfer, register or payment of tax.  Hence it is the duty of the new owner to mutate his/her name in the record of rights properly and cautiously. 

Concerned authority to mutate land

Assistant Commissioner (AC) (Land) is the authority where an owner of a land can apply to mutate his/her name in the official record. However, there is an assistant mutation officer in the AC (Land) office who will deal the matter primarily and an officer equivalent to Najir will take the relevant fees for mutation. Nevertheless, an inquiry will be conducted by the Tahshilder (assistant settlement officer) to confirm the real ownership of the property before such mutation. 

How to apply

To mutate a piece of land, the owner or his/her duly nominated representative has to apply to the AC (Land) in prescribed form collected from the AC (Land) office or on white paper along with court fees worth Tk 100 and mutation fee Tk 25 (after getting approval) accompanied by other required documents. 

Additional Tk 1.50 will be required to create and transfer first three divisions from the existing undivided plot/dag. Further Tk .50 will be needed to make every subsequent division. However, the concerned officer will serve notice to the parties and the applicant is obliged to pay the process fee of Tk 1.50 for each. There is no other requirement to pay any further money for mutation. 

In the application form the applicant must clearly mention the name and address of the applicant and the transferor, detail description of the land and its surrounding boundary, size, nature and identification of the land, registered deed number and date of such registration.

Moreover, the applicant ought to affix copy of main deed, via deed, copy of Khatiyan, receipt of payment of land development tax, proof of means to acquire the ownership i.e partition deed, copy of the decree or judgment obtained from competent court (if any), passport size photograph of the applicant etc. with the application. 

It is noteworthy to state that no middleman or extra money is necessary to do mutation of land. Applicant himself/herself can do it by paying only prescribed fees to the Govt. exchequer. However, now 60 days is fixed to finish the whole process of mutation in metropolitan area and 45 days for any other region.

Relief against refusal

If the AC (Land) refuses to mutate the name of the applicant for default of document or for any other reason whatsoever, the aggrieved applicant can apply to the Additional Deputy Commissioner (Revenue) within 30 days from the date of such refusal. However, anyone can apply further to the Additional Divisional Commissioner (Revenue) within next 30 days against the impugned decision of the Additional Deputy Commissioner. Finally the complainant has another forum to appeal to Land Appeal Board within 90 days against an impugned order given by its immediate inferior authority. 

Nevertheless, apart from appeal there is alternative option of revision against the alleged decision and any authorize superior officer can alter such order promulgated by the subordinate official after call for the pertinent records. In addition, one can apply for review to the same decision making officer to reconsider his/her decision within 30 days from the date of first decision. However, it should bear in mind that in that circumstance the petitioner will drop his/her right to file appeal.  

Published in the Law & Our Rights page (P. 12) of the Daily Star on 04.08.2015.