Amending balance in a high-trapeze act

One of my favourite TV channels was c-SPAN, which unfortunately my cable company does not provide any more. I could watch important US Senate Committee hearings in this channel, and one of the most popular was the hearing on President Clinton's bizarre affair with his office assistant. I foresaw Clinton emerging Scot-free. Because power goes hand-in-hand with snobbery, the US congress would not let the mighty President of the most powerful country in the world fall because of some indiscretions with apparently a lady of easy virtue (they used worse words). Though the outcome was a foregone conclusion, even some Republicans siding sympathetically with the beleaguered Democrats, the judge made the witnesses draw very graphic details, much to the discomfort of the august representatives of the people and senior officers of the government present there. Kenneth Starr, the 'independent counsellor' appointed by the Appellate Division of Washington DC was answerable to nobody, including the President, and hence, in theory, could be a proper independent investigator to report to the Congress for impeachment.

Actually Clinton survived by the skin of his teeth. The majority Republicans did not feel all that generous when it was discovered that Clinton had lied under oath.

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In the house next to my daughter's dorm building near Harvard Library, one day a man was seen trying to wrestle with the door, as if to force entry. The neighbour on the other side (the students in the dorm were all at work) promptly reported to the police, who came with lightning speed and arrested the gentleman. Despite his protests that he lived there, and had misplaced the keys, the police took him to the station like a felon. President Obama, a Harvard grad himself and Editor of the prestigious Harvard Law Review, heard about the incident involving a dear friend, a Harvard professor, and spat out a series of strong words about Boston police department, claiming that the incident would not have arisen if his friend had been white. There were strong protests from the police and other sympathizers of the action and the actors. Eventually, Obama had to invite the arresting policemen to tea at White House, the nearest thing to a formal apology the most powerful man on earth can make.

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President Bush was lucky. During his tenure, he had the opportunity of making three nominations for new justices to the US Supreme Court. One of them could not pass the stringent process of a threadbare examination by the relevant Senate Committee. Bush succeeded, however, in getting young ultra-right-wing  John Roberts as the Chief Justice. I still remember the terminally sick last Kennedy brother, Ted, calling this man a totally unfit person to become the new Chief Justice of the USA, on account of the extreme well-known views. But Roberts sat through all this smugly, knowing he was secure because of the weak democratic representation in the committee.

During the public oath-taking ceremony of President Obama, Roberts must have found the fate of being in charge of swearing in the first black president subconsciously unacceptable, and made serious mistakes, which Obama corrected with a smile, but the oath became void. Obama had to be sworn in again privately in the White House.

Can a US Supreme Court judge be impeached? Yes. The House of Representatives first bring in the impeachment motion and passes it. Then begins the trial by the Senate. He is removed if the Senate votes for it. The process is very transparent. In 1796 President George Washington appointed Stuart Chase an Associate Justice of the Supreme Court. President John Adams also appointed number of judges to the Supreme Court with sympathies with the Federalists, the first political party of the USA, with sympathies with the British and large financial institutions. President Thomas Jefferson first tried to appease the Federalists, but realised the dangers of a judiciary that believed it held supreme power, as the positions were for life. In 1801 the Judiciary Act removed all the Federalist judges, despite the initial life-time tenure granted to them. Justice James Stuart Chase spoke bitterly about the new law curbing the powers of the judges. The House of Representatives impeached Chase, but the Senate did not remove him. The acquittal of Chase, despite his poor manners and personal qualities, by huge margins on many counts, are considered by many historians to have helped ensure the independence of the judiciary in the USA. Impeachments of federal judges which followed Chase have been based on allegations of legal or ethical misconduct, not on judicial performance.

When I first arrived at Cambridge, I discovered to my disappointment that the college I had chosen, Trinity Hall, was more known for having produced the greatest number of Lord Chancellors, the highest legal representatives of the government at that time, rather than scientists like Isaac Newton, who were students in neighbouring Trinity College, though Stephen Hawking, not yet as famous, was a late entrant. In 2005 the legal reforms in England and Wales, transferred the supreme legal authority to The Lord Chief Justice, though the position of Lord Chancellor remained. I have never been able to sort out clearly who does what. However, from the relevant website I can see the relation between the parliament and the judiciary:

Both the House of Commons and of Lords can ask the Queen for the removal of a judge of the High Court or the Court of Appeal. However, it has never been exercised yet in England and Wales. Circuit and District Judges can be removed by the Lord Chancellor. However, he can only do so if the Lord Chief Justice agrees. This power too has only been exercised only twice — in 1983 when a judge was caught smuggling whiskey into England; the other in 2009, for a variety of indiscretions. There has been no case where a judge at any level was dismissed for giving a judgment the government did not like.

Questions have been raised in England about the right of unelected judges to overturn the laws set out by elected representatives in Parliament. British judges can rule that acts of public bodies are unlawful and can decide against the Government in a particular case. Indeed, this is an effective check on the power of the State against the individual. However, they cannot overturn the legislation. In the United States, the Supreme Court can declare that legislation is not valid law because it is unconstitutional. In England declaration of incompatibility under, e.g. the Human Rights Act of 1998 of the European Union, leaves the particular law intact. Parliament needs only amend the law to render it compatible with the EU. The ultimate decision remains with the Parliament and not the judiciary.

In England there is no written constitution. The totality of all laws serves more or less a similar purpose, and laws can be amended more easily than a constitution. In neither USA nor England has a judge been removed for giving a verdict displeasing the government. In Bangladesh the only case we know was related to a forged marksheet. My life-long classmate Shah Abu Nayeem resigned from the Supreme Court when he was superseded twice for the position of Chief Justice; my poor friend happened to be a brother of Hannan Shah! But in the USA other senior judges did not respond adversely to the promotion of Bush's right-wing favourite, the young John Roberts, to the position of the Chief Justice – mischievous, but legal. In the USA the President has to bear more burdens than the British PM, even when both the Houses are controlled by the other party, and yet he has to apologise to police officers of a small precinct for one human outburst. In Britain the PM is called "the first among equals", and does not interfere with other ministries. But here in Bangladesh virtually all important files of every ministry require "clearance" from a Super-ministry, with more power than the President in a Presidential system. During the rookie years, judges calling the PM "wrong-headed" did not lose their jobs, but the game may be changing. In chess, it is often said that the threat of an action may be as powerful as the action itself.

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Ahmed Shafee, a physicist and a life-long teacher, is currently the vice-chancellor of East West University.