by Salimullah Khan

Canst thou draw out leviathan with an hook? or his tongue with a cord which thou lettest down?
   The Old Testament, Job 41:1
   
   THE present history of the judiciary, one of three ‘structural pillars’ of our republic, reflects a close resemblance to its neighbours, to both the hegemonic India and subalterns like Nepal. Two new developments, arising out of the old practice of judicial review, are now especially marked out. They are together called by the rosy name of ‘judicial activism’. In this essay, I will leave one of them, the so-called public interest litigation, momentarily aside to leave room for the other.
   The so-called ‘basic structure’ doctrine, to say the least, is a most controversial thing with frightening consequences for the democratic process, the ultimate basic structure of any modern nation. Apparently, the intellectuals and the vested interests join hands in a vicious circle. Silence on occasions can be worse than a crime. One can put off disaster for at most two or two and a half political business cycles and no more.
   The miserable doctrine evolved, in India, out of a litigation concerning property rights and let the genie of contradiction off. In Bangladesh the origins are perhaps more sinister. What is or is not a basic structure of the constitution has been decided in a way not ‘divorced from historical circumstances and the actualities of political conflict.’ Since the decision in which the Supreme Court of Bangladesh admitted a petition on ‘basic structure’ turned on the position of the Supreme Court itself, the decision remains exposed. I would not invoke the doctrine of agrapta nomima, unwritten laws, that no man should be judge in his case. I will not argue either if the doctrine is compatible with democracy, arguably the most basic structure.
   I will argue only that adoption of the basic structure doctrine marks a regression to judicial tyranny, in the guise of reviewing legislative tyranny. As Raju Ramchandran of the Indian Supreme Court says, the basic structure doctrine, in limiting the amending power of the legislative body, stifles democracy, itself undeniably a basic structure. He demonstrates the contradiction in the Indian jurisdiction.
   ‘The limitations of the basic structure doctrine,’ Ramchandran writes in the year 2000 of our lord, ‘were brought out by the [Indian Supreme] Court’s decision in ADM Jabalpur [1976]. The Presidential proclamation suspending Article 21 did not, according to the Court, leave the citizen with the right to protect his liberty. Thus a right which, applying the basic structure test, could not be taken away even by amending the Constitution, could be taken away by an executive proclamation. Also, eventually, the strengthening of the right to life and liberty was done by Parliament itself, by providing in the Forty-fourth amendment that the rights conferred by Articles 20 and 21 could not be suspended even during an emergency.’ (Ramchandran, ‘Supreme Court’, p 130)
   Must the doctrine now be buried, as Ramchandran forcefully suggests? An examination of the Bangladesh experience for nearly a quarter century shows all the same that a burial may be really overdue.
   
   I
   IN THE primitive myth of the Semitic peoples leviathan is a sea creature, described as the largest and most fearsome of them all. For many commentators it represents the deadly man eating crocodile of the Nile, a right companion for the nilotic hippopotamus. In poetic lore, very commonly, the term is applied to a sea creature which far surpasses the crocodile in size—the whale. The largest whale, the blue whale of Antarctic waters, is up to a hundred feet long and weighs as much as 150 tonnes. ‘It is not only the largest animal now alive,’ writes Issac Asimov, ‘but the largest animal that ever lived, the dinosaurs and other extinct animals of aeons past included.’ (Guide, p 486)
   The primitive myth cites, besides leviathan, other wonders of nature, divinely created, guided and of course regulated, which mankind is incompetent to cope with. To wit, writes Job: ‘Behold now behemoth, which I made with thee; he eateth grass as an ox.’ (Job 40:15) As we read further along, it becomes more and more confusing. Sometimes it gives the impression of a huge herbivorous creature of powerful strength, not unlike the elephant, the largest living animal alive today. At other times, it gives the impression of a river animal and it seems natural to equate behemoth with the hippopotamus, the second largest land animal, which too is herbivorous. In any case, to many commentators the behemoth seems to be larger and stronger than even a hippopotamus or an elephant.
   The Hebrew word behemoth, the plural of behemah, means quite simply ‘beast’. ‘The word is placed in the plural,’ Asimov suggests, ‘to imply, apparently, that the behemoth is many beasts put together in size and strength; it is the greatest of beasts.’ (Guide, p 485) But it is not so much for secular history as for the myth that we turn to these wonders, behemoth or leviathan.
   Thy also represent forces of evil in the world, to be slain (symbolically) by God at the end of days in order to create a new world of righteousness and good, just as it was slain at the beginning of days to create the world that now exists. Leviathan (or dragon) is sometimes taken as a symbolic description of the Egyptians before the Exodus, who are punished by God, the Father of the Jewish nation. To represent Egypt by a crocodile is not far-fetched. We do represent the United States by an eagle or (the former) Soviet Union by a bear.
   More interesting for us is perhaps to look at it the other way. It is also possible that this is a reference to a primitive myth in which God is pictured as bringing about the creation by destroying the monster representing the chaotic sea. In many mythologies, the supreme god, shortly after his birth or his coming into being, is described as defeating some huge monster. Often, he creates the universe out of the remnants of that monster. This can be taken as symbolising victory of order over disorder, of cosmos over chaos.
   In Babylonian mythology, Marduk, the chief god, destroys the monster ‘tiamat’ and creates the universe out of it. Tiamat is supposed to be the symbolic representation of the sea, and Marduk’s creation of the universe thus parallels the creation of civilisation by the Sumerians. To create a settled agricultural society, Sumerians had to tame the rivers in order that floods might be prevented and orderly irrigation ensured.
   This Babylonian myth of the origin of civilisation flows into the Bible, where the creation is depicted. ‘And the earth was without form and void; and darkness was upon the face of the deep.’ (Genesis 1:2) ‘The deep’, translates the Hebrew word tehom, which is rather similar to the Babylonian Tiamat, that monster of the sea. It is significant that God does not fight ‘the deep’ or kill it, but by the sheer force of divine command creates the world. We might as well hold that tiamat, behemoth or leviathan is not eliminated but only repressed.
   
   II
   WE ARE not too wide off the mark when we notice, at the onset of our own (bourgeois) epoch leviathan is resurrected as an image of the state or the commonwealth. Its function is now reversed, rather in opposition to the self-righteousness of the Bible. Commonwealth, or leviathan, as Thomas Hobbes puts it, is a signifier of legitimisation. When the world is pregnant with a new ruling class the problem of legitimacy is bound to recur. A covetous bourgeoisie, not yet self-confident in early modern Europe, first rallies around an absolute monarchy. Invoking the image of forces of nature, of leviathan, of behemoth as a political myth, the English philosopher Hobbes casts the problem in this way.
   Hobbes offers leviathan as order, as an alternative to chaos or civil war. In its proper sense his argument assumes the form of a logical operator: ‘Leviathan or civil war.’ We must choose: freedom or death. From a metaphor of human impotence facing nature, leviathan is now a metonymy of desire, nature in aid of mankind. The monster, the symbol of death, thus becomes the state, image of freedom.
   It soon becomes apparent, however, that such a choice is next to impossible, it is a forced choice. There is no choice, in other words. The classical form of this forced choice is where you face the highwayman or the mugger as he is called in your town: ‘Your life or your money.’ If you choose the money, you lose both, but then if you choose life, you get life without money, a life deprived of its meaning, that is the means of living, which is worse. ‘The paradox of forced choice’, as the philosopher Zupancic writes in her gloss on the French analyst Jacques Lacan, ‘comes from the fact that one of the alternatives between which we are required to choose is at the same time the universal (and quasi-neutral) medium of choice itself; it is at once and the same time the part and the whole, the object of the choice and that which generates and sustains the possibility of choosing.’
   ‘It is for this reason’, continues Zupancic, ‘that we must choose one alternative if we do not want to lose them both—that is, if we do not want to lose the possibility of choice itself. In the disjunction ‘Your money or your life’, it is life which is at the same time the part and the whole—it is the indispensable condition of choice itself.’ (Ethics of the Real, p 215)
   The choice with which Hobbes faces us is exactly of the same nature. You choose either a constitution (with centralised and unlimited power conceded to the state) or civil war. Leviathan mastered the civil war, namely by way of an unrestrained accumulation and centralisation of power. The problem is that whatever we choose we get leviathan, for leviathan is just another name of civil war.
   The question then is: ‘Why are we offered such a choice?’ No matter whatever choice you make the outcome remains all the same: lose your life or means of living that life. What you stand to gain from the choice is perhaps only the pleasure of choosing. Alienation, in other words, works. The bourgeois, not unlike the biblical God himself, chooses not to kill the monster but instead to raise it in the rear. ‘Leviathan or civil war’, like ‘Your life or your money’ is indeed no more than this ‘vel of alienation’ or secondary repression, as Jacques Lacan would put it.
   All modern bourgeois constitutions are built precisely on this ‘vel of alienation’. Separation of powers, the most potent signpost to a post-civil war state, testifies to that illusion. It seems to go a long way, if not all the way. The suture comes off at the seams. Symptoms of morbidity, of repression return not only in the colonies, it feels unsafe to be at home. Bourgeois rule is laid bare for what it is, repression. In the end after colonialism, after the genocides, after the savagery the bourgeoisie has nothing new to offer save that same old story. The bourgeoisie is dead, but a new class is not born, or as yet feeling not too well. Constitutionalism is thus the last refuge, seen not as a solution but honestly as taking the lid off the pitcher.
   ‘What makes constitutionalism an attractive alternative,’ as a late modern European writer argues, ‘is not the claim to be the solution of the diverse problems of a polity at the end of the twentieth century, but the well-founded assumption that it is able to liberate the problem-solving capacities which are slumbering in the society.’ (Preuss, ‘Constitutionalism’, p 186)
   The new constitutionalism stands in contrast with the other scene, with genesis: ‘when the certain knowledge of an unlimited progress of reason, of human development, of economic growth, and of technical perfection was the stimulating force for the struggle for constitutions.’ ‘In those early days,’ Preuss writes, ‘constitutions were the weapon of reason against the darkness and stupidity of political absolutism. At the end of the twentieth century this rationale of constitutionalism does not hold any longer—and yet, its importance as a concept for the rational organisation of a polity has by no means decreased.’ (‘Constitutionalism’, p 186)
   So whatever happened to your liberty or freedom of choice? Late constitutionalism, as admitted, consists of no more than a logical operator of ‘rational organisation’, of rule of law or death. You have to say: ‘Choice or death!’ In other words, ‘I have no choice but to make a choice.’ Rational organisation has no alternative. Thus, leviathan wears just a new tag. Freedom can be ensured only with the choice of its opposite. The only choice you are left with is to say: ‘I have no choice.’ In the primitive myth God, you do know, let alone kill, does not even fight the deep, the chaos that is. But by sheer force the divine will creates the world. In only later rabbinical tales, and in some of the apocrypha, where behemoth is pictured as unimaginably colossal and as designed to be killed in the Messianic Age to feed all the righteous at once.
   The bourgeois, Christian as he is historically, originally proposed the high judiciary as a solution to the problem of leviathan. He imagined that the Supreme Court will save the citizen, the social compact from tyranny, from leviathan but did not quite have time to find out: ‘Who will save us from the Supreme Court?’ ‘In a monarchy,’ writes Hamilton, ‘it is an excellent barrier to the despotism of the prince; in a republic to the encroachments and oppressions of the representative body.’ ‘And it is the best expedient,’ Hamilton argues, ‘which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.’ (The Federalist, no 78, p 447)
   ‘Whoever attentively considers the different departments of power’, reasons this father figure, ‘must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.’ For, in Hamilton’s view, the executive not only dispenses the honours, but ‘holds the sword of the community’. The legislature not only holds the purse, but prescribes ‘the rules by which the duties and rights of every citizen are to be regulated’. ‘The judiciary, on the contrary,’ in Hamilton’s own words, ‘has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.’ (The Federalist, no 78, p 447; emphases in text)
   As Hamilton argues, the representatives of the people in the legislature are not unlikely to substitute their own will to that of their constituents and the constitution could not be presumed naturally to intend to enable them to do this. ‘It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order among other things, to keep the latter within the limits assigned to their authority.’ (The Federalist, no 78, p 449)
   That ‘judicial review’, as an American historian of Ideas, Herson, remarks, has come over time to extend to the actions of all civil and military officials in all levels of the state. It is by now a fact of life in the United States and widely followed elsewhere. (Politics of Ideas, p 86)
   To return to Hamilton, he, however, does not probe any further. He does not ask, for instance, why the judiciary too is not supposed to have a will of its own, when enabled to hold office during good behaviour, and especially when it is itself not a representative body. Why should there not be any intermediate body poised between this power and the people? The subject-matter of the present essay is rather that repressed question. If the judiciary is to save the people from the legislature, who is there to save them from the judiciary? ‘What is there,’ in other words, ‘under the mask: messiah or leviathan?’
   
   III
   THE concept of judicial review, everyone knows, gives the Supreme Court the power to rule legislative acts ‘repugnant’ to the constitution, and therefore null and void. ‘Without this,’ it is asserted, ‘all the reservations of particular rights or privileges would amount to nothing.’ (The Federalist, no 78, p 448)
   A few questions, however, remain. In order to consider an act of the legislative body as a violation of the constitution requires that the court hold forth on the true meaning of the constitution. Thus Hamilton, once again: ‘It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, in the intention of the people to the intention of their agents.’ (The Federalist, no 78, p 449)
   This rise of judicial power has been traced in Europe to the times before the English Revolution and before the Civil War in the Americas. In English common law precedent, no matter how ancient, had long been regarded as a source of legitimacy. Sir Edward Coke, the chief justice, in a case (Doctor Bonhams’s case), decided in 1610, had held an act of parliament void on grounds that it contravened ‘common right and reason’. (Politics of Ideas, p 87)
   The point was not lost on Alexander Hamilton who thought of this as an ‘important feature of good government’. ‘The experience of Great Britain affords an illustrious comment on the excellence of this institution,’ the revolutionary statesman asserts point blank. (The Federalist, no 78, p 454)
   In the United States rise of the judiciary to actual power was already a fact by the end of the civil war, but judicial hands had been on the prize as early as Thomas Jefferson’s presidency (1800-1808), when John Marshall, the chief justice and his colleagues ruled a statute, namely the Judiciary Act of 1790, unconstitutional. (Marbury v Madison [1803])
   Marshall’s reasoning was not free of error, was rather simple-minded. He was envisaging only some clear-cut situations to serve his purpose. Though this is not the right place to institute a full review of judicial review, we may note that the doctrine often traces its genealogy from this self-righteous precedent. We would be happy to cite here only a couple of instances from some recent decisions of the Supreme Court of Bangladesh, where too we will see perhaps more than simple-mindedness at work.
   The presumption that a judge has no political will or ideological axe to grind, that whatever he decides is ‘natural’, exposes judicial practice to a concept of history grounded in some stale, or just plain bad or unsustainable theory. In most cases, the decision is reached before reason is marshalled out to be in its service. ‘If you have the decision,’ a judge is quoted as saying, ‘reasons will be found to be as plentiful as blackberries.’ ‘The judge is as correct as his analogy;’ remarks a wit, ‘blackberries, even when plentiful, may be unripe or overripe, and they are always surrounded by thorns.’ (Miller, The Supreme Court, p 14)
   Problems of theory are conspicuous and no less precarious. The theory that enjoins the judges to discover the intention of the people who happened to write the document cannot guide them as to the weapon with which to determine that intention: how can you tell the dance from the dancer? An American student asks the hard question. ‘The intent theory holds that a document, such as the Constitution, should be construed in agreement with the intentions of the person or persons who wrote it. To discover these intentions for the Constitution one must turn to the history of the late eighteenth century. Since it is the Constitution that commands the Supreme Court to decide one way or the other, since the Constitution should mean what it was intended to mean, and since intent is ascertainable only by resort to historical material, history as intent is essentially history as command.’ (The Supreme Court, p 26)
   But history as the past is only one view, perhaps all too erroneous at that, of history. History is not what the nation was in the eyes of the present; it is more what the nation has become in the present. In most judicial interpretations, the view of history adopted is history as the past. And the reason for any decision is adduced as a monistic interpretation of history. In comparison, there was perhaps more honesty in John Fortescue, a good old English jurist, who proclaims: ‘Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason.’ (The Supreme Court, p 14)
   
   IV
   CERTAIN recent developments in our parts of the world too throw a good deal of new light on this same old problematic of ‘judicial review’. In what has been called ‘a spectacular case’ the Supreme Court of Bangladesh adopted, relying expressly on the reasoning of the Supreme Court of India in HH Kesavananda Bharati v State of Kerala [1973], the doctrine of ‘basic structure’ of the constitution in 1989.
   The case turned on, incidentally, the position of the Supreme Court itself. The Constitution of the People’s Republic, as given in 1972, established an integrated Supreme Court with two—an Appellate and a High Court—divisions. Its permanent seat was to be in Dhaka, the capital but the constitution itself permitted ‘temporary’ (i.e. non-permanent) ‘sessions’ of the High Court Division, at the discretion of the chief justice but, as noted by concerned observers, as far as facts are concerned such sessions actually never took place. (Conrad, ‘Basic Structure’, p 187)
   On May 11, 1982, within two months of taking over the reins of the government, a military administration ordered the establishment of six permanent ‘benches’ of the High Court Division outside the capital, in namely Barisal, Chittagong, Comilla, Jessore, Rangpur and Sylhet. Though these benches were to be ‘permanent’, the judicial appointments were nonetheless designed to be transferable at the discretion of the chief martial law administrator, presumably unfettered.
   In 1986, by another proclamation order, the six permanent ‘benches’ were renamed ‘sessions’ in conformity with the original provision of the constitution. By 1988, by a provision of the much controversial eighth constitutional amendment, the institution of permanent benches was sort of regularised. It was now the chief justice who was both to nominate and transfer the Supreme Court judges. The legal profession as represented by the Supreme Court Bar Association was obviously not happy with these developments.
   As the martial law administration attempted to rationalise its project as a scheme ‘to bring justice to the doorsteps of the people,’ so the Supreme Court Bar Association got to champion the causes of democracy and rule of law. It continued to resist the measure, had petitioned the government and had carried on an agitation that led at a point to the incarceration of some twelve leading lawyers under the martial law regulations. After the eighth amendment the lawyers’ guild went on for no less than three years to boycott the chief justice’s court who, as perceived, had been a beneficiary and collaborator of the military rulers. (Conrad, ‘Basic Structure’,
   p 188)
   The eighth amendment was before long challenged on the ground that it was a countervailing step against the unity and independence of the Supreme Court and thus destroying certain essential features or ‘basic structure’ of the constitution. The unity of the Supreme Court exercising the plenary judicial power throughout the republic, which besides being sovereign and independent is also unitary in structure, was described as one of the ‘structural pillars’ on which the constitutional edifice rests. The Supreme Court accepted the major premise that the power of amendment granted in the constitution is a limited one and the amendment in question was held by a majority of 3 to 1 judges to be unconstitutional, on the ground of violating the ‘basic structure’ of the constitution.
   As observers, national and foreign alike, noted emphatically that all the judges, including the lone dissenter, agreed that there really is something called the ‘basic structure’, though, one cannot but notice, even the three consenting judges could not agree among themselves what features precisely comprised that basic structure. The lone dissenting Judge, for instance, did not agree that the amendment in question actually destroyed the plenary judicial power of the Supreme Court or for that matter any other essential feature of the basic structure. (41 DLR 216)
   What makes this judgement significant is not its persuasiveness as such. Two years later, in 1991, by another parliamentary amendment the nation did move or return to a parliamentary form of government. What should one would, and what one must, presume from the twelfth amendment, then? Isn’t it that the form of the government is not an essential feature or part of the basic structure? If so, then how can the structure of the Supreme Court itself form such a part?
   A foreign specialist puts in a few clauses as an apology for the Supreme Court of Bangladesh. ‘Since the attempt at restructuring the Supreme Court had been a part of a major attack on judicial independence—of which many instances could be given—and since the legal profession had rallied in defence of the Court,’ as this specialist has written, ‘the unity and integrity of this Supreme Court had evolved into a fundamental principle of the actual Constitution.’ (‘Basic Structure’, p 189; emphases added) That this stands rather in contradiction to the infamous intent theory of judicial review is, however, quietly overlooked. History is not the past but the past in so far as it remembered from the present, Dieter Conrad seemed to agree.
   In a rather unsuccessful attempt, I would here argue, Conrad seems also to salvage the discredited intent theory. He cites a reference to a 1963 decision of the Dhaka High Court made in course of a submission of Dr Kamal Hossain’s. It was an attempt to dig up some native roots of the idiom ‘basic structure’ in order to take some grease off the doctrine of constitutional interpretation as ‘present history’. The basic structure doctrine, pointed out the learned counsel, ‘as developed in the Indian jurisdiction originated from a decision of Dhaka High Court....’ (‘Basic Structure’, p 191)
   
   V
   THE metaphor of fundamental or basic structure is by now a favourite turn of phrase. ‘Its graphic appeal,’ as Conrad puts it, ‘almost by itself has the force of an argument.’ It thus speaks so much for the naturalist theory of judicial independence. But the miserable theory faces other perils too. Once the power to annul amendments to the constitution, which is the highest form of judicial activism, is conceded, the exercise of lesser powers only follows, and ultimately judicial restraint based on the court’s own view of its area of competence and effectiveness becomes the only check on the exercise of judicial power. (Ramchandran, ‘Supreme Court,’ p 128)
   Today the basic structure doctrine stands in the way of constitutional reform. ‘If the basic structure test is to be rigorously applied to the question whether switch-over to the presidential form of government is permissible,’ Raju Ramchandran, senior advocate of the Supreme Court of India, thinks, ‘the answer has to be in the negative.’ (Ramchandran, ‘Supreme Court’, p 129)
   Apparently, Ramchandran was not writing in awareness of that switch-over already made in Bangladesh. But the logical difficulty that he points out can hardly be discarded offhand. It deserves a quotation at length. ‘One of the essential features of the Constitution, according to the petitioners in Kesavananda, was a parliamentary form of government as distinct from a presidential one. At least one Judge, Justice Jaganmohan Reddy, held that parliamentary democracy was part of the basic structure. If there is a serious move to switch over to a presidential form of government, a careful government will seek the advisory opinion of the Supreme Court under Article 143 of the Constitution. On the other hand a determined government with the requisite majority would go ahead with an amendment of the Constitution, whose validity will then be tested in Court after the system of government has changed.’ ‘Either situation,’ Ramchandran points out, ‘is fraught with frightening possibilities which could not have been possibly envisaged when the basic structure doctrine was adopted in the context of litigation arising out of property rights.’ (Ramchandran, ‘Supreme Court’, p 128)
   In Bangladesh, the Constitution (Twelfth Amendment) Act, 1991 in effect realises, even if unawares, that frightening possibility. Bangladesh makes further history in a less spectacular decision of the High Court Division made in 1991. In Hashmat Ullah v Azmiri Bibi and others [1991], a division bench of the High Court Division hold that the judiciary does not even form part of the state. A former chief justice, Mustafa Kamal, J, in a learned lecture, does not hesitate to go on record: ‘Whether the judiciary i.e., judicial decisions, is also included within the term ‘the State’ is an undecided question in Bangladesh.’ (Bangladesh Constitution, p 36)
   The core reason behind the decision, contrary to express provision of the constitution and as well as a parliamentary statute, is embodied in the rationalisation of using English as a ‘court language’, or arguably the only language in the Supreme Court. One reads the learned reasoning behind the decision: ‘The Act (Bangla Bhasha Prochalan Aine [Act 2 of 1987]) has been enacted under Article 3 of the Constitution which provides for making Bengali as State language. The term ‘court language’ being narrower, would exclude the application of the term ‘state language’ for the purpose of the language to be used in the subordinate court.’ (44 DLR, p 337)
   ‘Judicial opinions,’ a historian writes, ‘are the most permanent and public manifestation of the work of the courts, and they are the chief demonstration that reasoning is the essential element of the judicial process. Opinions cannot be dismissed as sham. The function of opinions is to convince the judge, the parties, and the public that cases are rightly decided. They serve to uphold the moral power of the courts, without which the judiciary would be ineffectual.’ I would leave it here to my reader’s genius to judge the outcome, for I am running out of bounds.
   Let me quote then one more American wit before I conclude. ‘Judges have preferences for social policies, as you and I. They form their judgements after varying fashions in which you and I form ours. They have hands, organs, dimensions, senses, affections, passions. They are warmed and cooled by the same winter and summer and by the same ideas as a laymen is.’ Aren’t they? I had the fortune to know one of the judges in Hashmat Ullah, in fact the junior member of the bench, now sadly dead. One day the good old retired and ailing judge had the grace to confide in us: ‘Haven’t we saved, my uncle, the English language for Bangladesh from the clutches of a wily despot?’ It was an Eid-ul-Fitr day and I, with a couple of friends, was visiting the ailing man for the first time as a friend of his son-in-law’s.
   ‘Yes, indeed you did, uncle,’ I replied. I was reminded of a dissenting judge’s opinion on judicial review, that too in a foreign land in a distant time. In the 1930s, shortly before the United States Supreme Court passed into a new era, Mr Justice Stone, in an important statement on the role of the judge, wrote that the power of courts to declare a statute unconstitutional is subject only to two guiding principles: ‘One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.’ (Supreme Court, p 32)
    My auditor gave a nod. But I failed to get it: his head moved, but was it along a vertical or a horizontal line. I could not interpret it right. Besides, I had to get up for an important business. Vermicelli was served upstairs.
   
   
   Salimullah Khan teaches at Stamford University.
   
   Case references
   HH Kesavananada Bharati v State of Kerala, 4 SCC 225 (1973)
   Additional District Magistrate, Jabalpur v SS Shukla, Supp SCR 172 (1976)
   Anwar Hossain Chowdhury v Bangladesh, 41 DLR (AD) 165 (1989)
   Hasmat Ullah v Azmiri Bibi and others, 44 DLR 32 (1992)
   Marbury v Madison, 1 Cranch 137 (1803)
   
   Other references
   I Asimov, Asimov’s Guide to the Bible: A Historical Look at the Old and New Testaments, 2 vols. in one (New York: Gramercy Books, 1981); 1st ed. 1968-69.
   D Conrad, ‘Basic Structure of the Constitution and Constitutional Principles,’ pp 186-202, in Soli J Sorabjee, ed. Law and Justice: An Anthology, reprint (Delhi: Universal Law Publishing, 2004); 1st ed. 2003.
   A Hamilton, et al, The Federalist, reprint, (Bombay: Popular Prakashan, no date); written in 1787-88.
   LJR Herson, The Politics of Ideas: Political Theory and American Public Policy (Homewood, Ill.: Dorsey Press, 1984).
   M Kamal, J, Bangladesh Constitution: Trends and Issues: Kamini Kumar Dutta Memorial Law Lectures, 1994, reprint (Dhaka: University of Dhaka, 2001); 1st ed. 1994.
   C Miller, The Supreme Court and the Uses of History (Cambridge, Mass.: Harvard University Press, 1969).
   UK Preuss, ‘Constitutionalism: Meaning, Endangerment, Sustainability,’ pp 172-187, in Satish Saberwal and Heiko Sievers, eds., Rules, Laws, Constitutions (New Delhi: Sage Publications, 1998).
   R Ramchandran, ‘The Supreme Court and the Basic Structure Doctrine,’ pp 107-133, in BN Kirpal, et al, eds., Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Pres, 2000).
   A Zupancic, Ethics of the Real: Kant, Lacan (London: Verso, 2000).