A Living Constitution

A Living Constitution

Today I read an impassioned speech delivered by the (late) Hon’ble Thurgood Marshall, J. of the US Supreme Court in the midst of nation-wide celebrations organised for the bicentennial of the US Constitution. In his remarks, he scythed through jingoistic nationalism, the romanticisation of the original document and the avowed belief in the infallibility of vision and judgement of the American founding fathers. To explain the magnitude of these comments and the fame/notoriety it brought him, I should add that this was 1987 and Marshall was the first African-American judge on the Supreme Court.

I think three passages are particularly worth noting:

I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today.

He goes on to indicate how the founders and drafters of the original Constitution, even the more ‘egalitarian’, Quaker ones, deliberately deprived slaves from the substantive benefits of ‘equality’, ‘liberty and ‘justice’ so as to secure their own economic interests. It took a civil war, countless civil rights movements and untold civilian casualties to correct these original omissions. As Marshall correctly points out:

“We the People” no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of “liberty,” “justice,” and “equality,” and who strived to better them.

While his short speech concerned the institutionalization of racism through the Constitution and was informed by his experience as an African-American (or “descendant of an African slave” as he called himself), this closing statement has a broader appeal:

[I]n this bicentennial year, we may not all participate in the festivities with flagwaving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled.

Despite being a progressive charter in many ways, I think the millions, living and dead, who experienced a Jim Crow education, were excluded from voting, were told what they could or could not do with their bodies or who they could or could not share their lives with – as a result of this Constitution and its rigid interpretation – may share this sentiment.

But this brings me to a point that is closer to home. As with the US Constitution, Bangladesh’s Constitution of 1972 is a remarkable document. It pledged the State to “the high ideals of nationalism, socialism, democracy and secularism” and stirringly envisions a society where political, economic and social justice and equality are assured. It is unfortunate that this bold document did not have much time to establish itself in our nation’s consciousness before being subverted. Since 2009, we have been on a tortuous path to undo the damage wrought by a series of authoritarian interregnums, with the view of re-establishing our original values. These amendments have ranged from the reintroduction of socialism as a fundamental state policy to abolishing the Supreme Judicial Council and reinstating Parliament as the organ responsible for recommending the removal of judges to the President. Perhaps the most controversial decision was to scrap the Caretaker Government system that had been used in each national election since 1991.

As to be expected, this was a politically charged process. Some claimed that such a move threatens to ossify the Constitution and denies the (purported) improvements made to its provisions through subsequent amendments. Whether the Constitution is fossilised or not, will largely depend on the future action of our Courts and Parliament. Leaving aside the essentially political question of whether one electoral process is superior to another, or one judicial investigation procedure is better than another, a study needs to be undertaken on whether our higher courts consistently adopt an ‘originalist’ approach to constitutional interpretation or construe it as a living document. Similarly, it is necessary to note the additions made, that were not envisioned by the drafters. An earlier Government included a quota for 50 female MPs (which, till date, has been retained) and through the Fifteenth Amendment, a new fundamental principle of state policy was added to  preserve the environment and biodiversity.

I hope that through the application of the legislative and judicial mind, the outstanding debate on minority rights and recognition will also be prudently settled so that during the Golden Jubilee of our Constitution, there are far fewer suffering quietly than they did in the US over two centuries.



A few thoughts on Judicial Conduct post-retirement

One of the hot topics of discussion in Bangladesh at the moment concerns the actions of judges post-retirement. As per our Constitution, a retired Justice of the High Court Division of the Supreme Court of Bangladesh may practise before the Appellate Division of the Supreme Court of Bangladesh but the question is whether it is ethical to do so, given the dignity of their position and the post-retirement benefits they enjoy.

The Bangalore Principles of Judicial Conduct (2002), the leading ‘soft law’ instrument on the issue, and Bangladesh’s Judicial Code of Conduct (2000) are silent on the rights and responsibilities of superannuated judges. It is also unclear whether their principles should simply extend to such judges. Perhaps, instead, it is worthwhile to look at the example of the UK and Australia in this regard:

Chapter 9 of the UK’s Judicial Conduct Guide (2013) states that: “9.1. The conditions of appointment to judicial office provide that judges accept appointment on the understanding that following the termination of their appointment they will not return to private practice as a barrister or a solicitor and will not provide services, on whatever basis, as an advocate in any court or tribunal in England and Wales or elsewhere, including any international court or tribunal, in return for remuneration of any kind, or offer or provide legal advice to any person. The terms of appointment accept that a former judge may provide services as an independent arbitrator/mediator and may receive remuneration for lectures, talks or articles.” Crucially, 9.2 adds: “Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary and any activity that might tarnish the reputation of the judiciary should be avoided.” In my view, this would seem to extend many of the obligations under the Bangalore Principles to retired Judges.

In contrast, Australia’s Guide to Judicial Conduct (2007) is less explicit about what judges can and cannot do. Chapter 7.2.1 of the 2nd edition of this Guide states that a Judge (re-)joining the Bar “is a “grey area” in which it is not possible to formulate Australia-wide guidelines. A judge contemplating retirement should consult the Australian Bar Association, and the local Bar Association or Law Society for relevant rulings. All however proscribe appearance as counsel in a court of which the judge was formerly a member, for various periods ranging from two to five years.” Similarly, judges are allowed to engage in commercial and political activities subsequent to retirement but with the same caveat as the UK: “[e]ven in retirement…a former judge may still be regarded by the general public as a representative of the judiciary, and any activity that might tarnish the reputation of the judiciary should be avoided. “

I think this last guideline should also be incorporated in Bangladesh’s Judicial Code of Conduct, to emphasize the need for retired judges to be sensitive to their exalted status in society.

the Hague