• Monday, Oct 26, 2020
  • Last Update : 09:07 am

Op-Ed: The rule of nothing

  • Published at 11:47 pm October 14th, 2020
Judge Amy Coney Barrett meets with Republican Senator
Reuters

Shaking the apple tree is the only way forward for a popular government

nn Coney Barrett, Donald Trump’s nominee for the United States Supreme Court could well go down in history for a number of reasons. At 48, she would be the youngest to achieve the honour. The mother of seven children is avowedly pro-life, thereby even science may be irrelevant to her in any abortion case. 

Most important is her decidedly strong inclination to interpreting the law as is written. That puts her in the conservative group of justices, as opposed to some of her to-be colleagues that are liberal. Their view is of interpreting the law in the “spirit” in which it was formulated. These two varying factors often come under critical scrutiny when it comes to crucial matters relating to the constitution. 

Barrett is a human being in a global population of nearly 8 billion and growing. She can also expect a long lifespan in an appointment that never gets revoked as long as her mental faculties thrive. There is of course a big “if” at question. A committee of the US Senate has to ratify the appointment after her statement of intent is already made. There will be a grilling process, but at the end of the day the Republican-dominated Senate is expected to approve her nomination. 

Politics being what it is, has temporarily come in the way. During President Obama’s tenure, his nominee for a similar position was negated by the Republican-dominated Senate on the ground of it being election year. This time round, they have backtracked on their own causal principles. Whether the Democrats will attack her record or abilities remain to be seen. 

Apparently, their concern comes from an immediate matter. Trump has not ruled out contesting the election results (obviously if he loses). If the matter gets dragged into courts, the support of Barrett’s opinion will matter. Email voting being a new phenomenon favoured by Democrats is drawing Trump’s chagrin.

Justices and lawyers are as fallible as any individual, even while pronouncing judgments. As human beings, they utilize their knowledge of the law, precedence, and the evidence presented. The highest courts in different countries have struck down lower court rulings and laws that in their opinion were contradictory to the constitutions. This has led to significant discussions about where the buck stops. 

This in turn has raised questions about the interdependence of the legislature, judiciary, and the executive. Though each has clearly defined roles, arguments have arisen about whether the legislature should be supreme over the judiciary in terms of appointments and removal of judges. In India, where there is a proud heritage of the judiciary being independent, there are signs of a change for the worse. 

The United Kingdom’s Common Law practice that prevails in absence of a written constitution faces a major challenge, as the Boris Johnson government prepares to effectively contravene international law over Brexit.

The sub-continent laws have origins from British colonial times. Both by method and means, these are in most cases unfit for the present times. Judges have to rule based on those laws and many after retirement have spoken of the need for reform. While the freedom or otherwise of the judiciary has been changed and repealed through constitutional amendments, such reforms are urgently required in the government and parliament. 

Lawmakers should add value apart from selecting committee approvals, given that they know best what constituents go through. The government’s functioning too requires easier and more accessible processes for the public. Whether in courts, government offices, and especially at local government and police levels, accountable and transparent implementation of the law has to be ensured. There have been allegations of evidence being tampered with. The International War Crimes Tribunal berated the prosecutors for forming a case weak in legalese. 

The recent overturning of a district court judgement appeal, wherein the actual ruling of “life sentence” was changed to “seven years imprisonment,” created enough consternation for high court judges to suggest the verdict might have been “bought.” This probably changes to a degree the “contempt” clause that prevents criticism of court procedures. The person concerned sought unqualified apology. Another lawyer has been barred from standing for his clients for having been contemptuous of the decision of virtual hearing. An Indian court fined a solicitor Rs1 or, in lieu, jail term, for having stated that a number of former judges had been compromised. 

Wealth beyond legal earnings have to be acted upon in case of all citizens of the republic, irrespective of whoever he or she may be. Impunity can only be overcome when rule of law is equally applied. 

Private and multinational organizations have fired personnel all the way up to the top team even though there was no direct involvement in corruption by most of the members. It was the ethical element that was considered. Vetting procedures for appointment to constitutional roles must be transparent, perhaps through watchdog commissions.  

Radical moves might be controversial, but shaking the apple tree really is the only way forward for a popular government. Otherwise, we are left with the rule of nothing.

Mahmudur Rahman is a writer, columnist, broadcaster, and communications specialist.

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