The abiding confusion of law abiding citizens

Two leading lights of our legal system have locked horns, and it has got the rest of us worried. The Chief Justice asked a retired justice of the Appellate Division to immediately return all official files in his possession because the highest judicial officer in the country strongly believes that verdicts written by judges after their retirement go against the Constitution and its spirit. The retired justice not only refused to comply but also sent 65 verdicts in defiance of the Chief Justice's edict. Then he accused the Chief Justice of acting as a spokesman for the leader of a certain political party.

Both sides involved in this controversy are high judicial persons, and that's precisely what makes us confused. Like a river always runs between two banks, confusion always runs between two arguments. Many of us are going back and forth in our minds to figure out which of the two learned views we should accept. 

The crux of the matter lies in two conflicting questions. One is why justices were allowed in the past to write verdicts after retirement if the practice was an affront to the sanctity of our Constitution. Another is why a retired justice is insisting on an unconstitutional practice when it should be his solemn duty to uphold the most hallowed document of this country.

Not to say that all judges should always agree on all matters. It's possible that all their interpretations may not be convergent but divergent as well. But the sparks flying between the two judges in this particular instance seem to have gone beyond the ken of legal science. They could have sat together to brainstorm and peter out their differences. Instead, they have chosen to exchange broadsides in public much to everybody's utter surprise.

Two of the five canons of the code of conduct for the United States judges state that a judge should avoid impropriety and the appearance of impropriety in all activities, and that a judge should refrain from political activity. Treading the minefield of legal sensitivities, we don't even know if, as members of the laity, it falls within our rights to point out these essential things. Justice is sadly a one-way proposition. Judges can tell what we do wrong, but the other way around is closed to traffic. 

That's why the independence of judicial minds is so important. And that's also why they are supposed to be raised on the fabled staple of austerity, because their responsibility to interpret the law may be comparable to the devotion of monks interpreting scriptures. This is where we have stumbled upon the shattered pieces of our common sense. Judges may not always agree on their interpretation of law, but why should they differ on its implementation!

So, we need to understand what's happening. This shouldn't be one of those flash-in-the pan issues that are forgotten as quickly as fermented. We need to understand who is right and who is wrong as well as how to go about it in the future. Law can't be an ad hoc thing, and it shouldn't be a coat one has to cut according to one's cloth. Something must be entirely legal or entirely illegal for the same reason that a drop of cow urine spoils a whole bucket of milk.

Hence, more needs to be done to get to the bottom of this matter. It's not enough if the law minister has avoided an event where the retired judge was scheduled to speak. It's not enough if a group of former judges have scathed their former colleague in support of the Chief Justice. 

If anybody cares, two things must be settled through this controversy. We should decide what the judges can do, and who are qualified to become judges. In our deluded minds we shouldn't expect mangoes to grow on jackfruit trees! 

That tells us what's lacking in the system that needs to be fixed. Justice is a delicate balance. The wisdom to tell others what they have done wrong must be accompanied by the knowledge to know when they are wrong themselves.  

The writer is the Editor of weekly First News and a columnist for The Daily Star. Email: badrul151@yahoo.com