Vol. 5 Num 295 Sat. March 26, 2005  

Lighten Up
Of individuals and institutions

Charles Evans Hughes is not a particularly familiar name and personality in most nations or to most peoples. Even in his own country, the US, he is not exactly a household name. In the early decades of the last century, though, he successively held high offices of state, in each of which he excelled. His was a long and distinguished life and career of public service. In 1906 he was elected Governor of New York, a position to which he was re-elected in 1908 and which he relinquished in 1910 on being named Associate Justice of the Supreme Court. In 1916 he left the Court to run for President as the Republican candidate against Woodrow Wilson. He lost, but narrowly. When the Republicans returned to power in 1920, he was appointed Secretary of State. He went on to serve on the Permanent Court of International Justice, the predecessor of the present International Court of Justice, and in 1930 was named Chief Justice of the US Supreme Court, his last public office from which he retired in 1941 at the age of 79.

In the late 1970s possibly, an associate professor of history in Iowa, surveyed 50 diplomatic historians of the US in an attempt to identify the six greatest secretaries of state in US history. Hughes was ranked fourth and placed in the select company of John Quincy Adams, Seward, Hamilton Fish, George Marshall, and Dean Acheson. In 1971, two US law professors polled 65 academic experts and legal scholars to rate justices of the Supreme Court -- mainly of the past but perhaps also including some long serving judges still on the bench -- according to degrees of excellence, ranging from Great to Failure. Hughes was one of only twelve to be included in the top category of Great, out of around 100 justices covered by the survey, alongside of Justices Marshall, Holmes, Brandeis, Warren, Black, Frankfurter, Cardozo, Harlan, Stone, and two others. As state Governor, before his appointment to the bench, in a speech at Elmira, New York, Hughes famously observed, "We are under a Constitution but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution."

Lord Caradon was of a later generation, the eldest of the famous Foot brothers, who served in the decade of the 1960s as Britain's Permanent Representative to the UN, the apogee of a varied and distinguished public life. He had once commented -- possibly apropos of talk of UN reform and with tongue at least partly in cheek -- that there was nothing wrong with the UN except its member states. In 1965, paying tribute to U Thant at the 20th anniversary celebrations of the UN, Caradon asserted: "We all know that we cannot rely on the infallibility of any human being, including the Secretary General. But it is good to know that we can rely on his total integrity."

Hughes' observation and Caradon's comment would underscore or connote some very basic truths. First, the primacy and pervasiveness of the Higher Courts of Judicature in a functional polity. Secondly, the subtle, almost symbiotic, relationship between any predominantly political institution and those -- individuals, groups, or purposes -- it is geared to serve. And thirdly, the most that one may realistically or legitimately expect of any person or persons.

Democracy is above all else a means to an end, and the end of all political effort can only "be the well-being of the individual in a life of safety and freedom". General elections are integral to any democratic dispensation, indeed they constitute its very essence, substance and, leitmotif. It is thus entirely in the fitness of things, and even indispensable for fairness and transparency, that there should be an absolutely level playing field for this pivotal political event, that the trappings of incumbency should not be a factor, emphatically not a major element, in deciding its outcome. This aspect may be more germane to relatively new democracies, where institutions may need to be reinforced, traditions have yet to take sturdy roots, and appearances are so crucial for credibility and acceptance. The late Zulfikar Ali Bhutto, according to his aide and confidant Rafi Raza, was said to be of the view that "no elections were ever fair in Pakistan." Ahead of the fateful 1977 elections, he posed the loaded question to Raza: "Do you think that Ayub defeated Miss Jinnah fairly?" All this is candidly recounted in Raza's book on Bhutto.

More than a quarter of a century has elapsed since Bhutto's passing. And yet even today his supporters and admirers are legion, as are those who regard him with undisguised distaste. The fact remains though that since his appointment to the Cabinet at the ripe young age of 30 in 1958, till his grisly end more than two decades on, he was intimately involved with the politics of Pakistan. He was a complex personality, greatly gifted and also fatally flawed, who could not quite make the transition from a feudal to a democratic mindset. Many are in no doubt that the elements of braggadocio and self-aggrandizement were seldom too far removed from much of what he said or did. His comments -- aimed essentially at his own country -- would reinforce though the imperative of free, fair, and transparent elections in any thriving democracy.

In parliamentary democracies, once parliament is dissolved, the outgoing government is transformed into a caretaker cabinet with powers that are more circumscribed. The suggestion has even been mooted that caretaker cabinets might be reduced in strength to comprise only the Prime Minister and a bare minimum of other ministers. The object, of course, is a level playing field before the election. In Bangladesh, a formal institutional arrangement has been put in place for this purpose. The 13th constitutional amendment of 1996 very specifically outlines the format and functions of a non-party caretaker government (NPCG), headed by a chief adviser. It would hold office for three months, and its primary purpose would be to afford every facility and assistance to the Election Commission for free and fair elections. The office of chief adviser is to be assumed by the most recently retired chief justice of Bangladesh, or in the event of his inability to do so, by his predecessor. If no former chief justice is available to serve as chief adviser, the most recently retired justice of the Appellate Division of the Supreme Court would hold the office and the same procedure as in the case of a former chief justice would apply if he is unable to serve. In the absence of a retired justice of the Appellate Division to assume the office, an eminent person, acceptable to the major political parties, would be named chief adviser. As a final resort, if the other options cannot be availed of, the President himself would assume this high responsibility. The constitutional provision is thus eminently flexible.

General elections have been held twice under the auspices of a NPCG, in 1996 and 2001. In both instances the outgoing governments were not returned to power. In both times the chief election commissioners were appointees of the outgoing governments. And in both cases, the outgoing governments, in deciding on the timing of elections and dissolution of parliament, also decided, in effect, who would assume the high office of chief adviser, or more accurately who would be given first refusal in this regard.

International election observers adjudged both elections as largely free and fair.

It is natural enough perhaps that the nation and people should turn to the prestige, wisdom and experience of retired judges of the highest court for the credibility and dignity of the institution of NPCG. Judges of the superior courts in a democratic polity interpret the law, decide intricate issues dispassionately on the basis of facts and the law, and in general administer justice. They are, almost by definition and also convention, apolitical, but often enough have to address complex political issues. In countries as distant and distinct as the US and Ukraine, the highest courts have in recent times been arbiters of presidential elections.

To avoid even the appearance of impropriety or conflict of interest, a judge of a superior court enjoys the latitude of recusing himself or declining to hear a case, with or without assigning a reason. Justice Tom Clark of the US Supreme Court -- a life term appointment -- even opted to retire when son Ramsey Clark was appointed Attorney General in 1967. It is of a piece with such a philosophy that a person may decline to serve as chief adviser, if he is persuaded that his acceptance may not be conducive to the essential purpose of the high office. In Bangladesh, a Head of State resigned when he concluded that he had ceased to enjoy the unqualified confidence of a good proportion of the political party that had elected him. It was surely a decision based on a moral rather than a legal or constitutional obligation. Two chief election commissioners resigned in different times of political restiveness. In one case health reasons were cited for leaving office. The thought would have weighed with both -- it is reasonable enough to surmise -- when they resigned, that their continuing to hold office, might not, for whatever reason, conduce to its high purpose.

Since its inception, the mechanism of NPCG was seen as an innovation to bolster the democratic process. To be sure it had and has its critics, indeed nothing crafted by human minds, hands, or endeavour can be so perfect that it cannot be improved upon. Certain questions or lacunae persist, which can surely be clarified or resolved. Does the very need for such an institution reflect unfavourably on the level of mutual confidence between the major political players; no other country has adopted it. Secondly, such a dispensation provides for rule by a non-elected government, albeit for a brief period every 5 years. And finally, does the system lend a political aspect to the role of the judiciary, whose dignity and prestige derive so much from its apolitical nature. Political and social needs of a country are not infrequently in advance of the law. If there is a widespread need or demand for change in a system, this can always be accommodated through constitutional change.

There are certain pre-requisites for any system to function to its potential without distortions. Institutions comprising a system should be robust, realistic and also sufficiently flexible. Institutions should be run by those most qualified for the task. Finally -- and this is almost as crucial as any other factor -- an enabling ambience or a spirit of moderation for any public system to function. Judge Learned Hand, perhaps the greatest judge the US Supreme Court never had -- although he was for years in contention for a seat there -- made this point as felicitously and forcibly as anyone in 1942, in a talk on "The Contribution of an Independent Judiciary to Civilization."

As Learned Hand put it: "[A] society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish." He was, of course, speaking of the human limitations of a specific human institution, howsoever exalted. The spirit of his observations, however, should apply to other human institutions also, especially those involved in and concerned with the public or general well-being.