| by Dr. Ruwantissa Abeyratne
( November 06, 2012, Montreal, Sri Lanka Guardian) Jeffrey Toobin, a staff writer at The New Yorker and Senior Legal Analyst at CNN, in his latest book The Oath (Doubleday:2012) observes of the United States Supreme Court: “ In the previous dozen years, the United States endured a terrorist attack, economic calamity and several wars. But the Supreme Court’s rulings may leave as important a legacy. The future of politics, business, public safety, individual freedoms – all hang in the balance before the justices. How will our elections be conducted? What is the place of race in American society? How much power may the Federal Government exercise? On those questions and many more, the Supreme Court will have greater sway than either the executive or the legislative branches of government”.
Toobin goes on to say: “Early in the New Deal, the Supreme Court struck down several of President Roosevelt’s initiatives as violating the commerce clause of the Constitution. If the law did not directly affect commerce “among the several states”, in the words of Article 1, the Court said that Congress had no right to pass it. FDR responded to these setbacks with his infamous court-packing plan, but a change of heart by Justice Owen J. Roberts in 1937, followed by Roosevelt’s own appointments to the Court, transformed the understanding of the provision”.
The influence wielded by the judiciary in the American legislature was amply reflected and demonstrated in the 2007 case of Ledbetter v. Goodyear Rubber and Tire Company, which involved an action brought by a female worker – Lily Ledbetter – against her employer for paying her $3727 per month whereas it paid her male counterparts between $4286 and $ 5236 for the same type of work performed. Justice Ruth Bader Ginsberg, delivering her dissenting opinion against the majority of the Supreme Court which denied Ledbetter redress on procedural grounds, invoked Congress to revoke the majority decision, citing a Civil Rights Act passed by Congress in 1991 which effectively overruled several of the Courts earlier restrictive decisions, one of which was relied upon by the majority decision in the Ledbetter case. Justice Ginsberg observed that the responsibility lay within Congress to overrule the majority decision against Ledbetter, which was widely supported and taken up by Hilary Clinton, Joe Biden and Barack Obama at that time as a thrust for the Democratic Party.
Under English common law, courts can, in certain circumstances, exercise control over primary legislation. Statutes can be challenged for compatibility with higher law, such as the Human Rights Act of 1998. Courts have also authority over discretionary power exercised pursuant to a Statute. It has also become clear in recent times that prerogative powers can be subject to judicial review, depending on the subject matter adjudicated upon. There is prolific case law on instances where courts have struck down discretionary decisions where discretion has been used for an improper purpose.
Fundamental to the status of the judiciary is the tripartite legal doctrine of separation of powers, which Baron de Montesquieu propounded through his theory on the division of political power among a legislature, an executive and a judiciary, where the three branches of government (legislative, executive, judicial) exist largely independent of each other, with their own prerogatives, domains of activity, and exercises of control over each other. According to this philosophy, the legislative body has control of the executive finances, and has judiciary powers. It also has control of the way the judiciary works. The judiciary often has control of laws not being contradictory to the constitution or other laws and it has the power to correct and control the way the executive body exercises its powers (to execute the law). The executive is the arm of government that has sole authority, power and responsibility for the daily administration of the State, and for executing the law of the land. Montesquieu daid: “where the power of judging joined with the legislative, the life and liberty of the subjects would be exposed to arbitrary control, for the judge would be the legislator”.
Dr. Joseph A.L. Cooray, a distinguished Constitutional Lawyer of his time, observes in his book Constitutional and Administrative Law of Sri Lanka (Hansa: 1973) : “The main application of Montesquieu’s doctrine of separation of powers lies in the independence of the judiciary from executive control and influence. Judicial independence is essential if judges are to perform their judicial functions without fear or favour. Blackstone, the famous English jurist, has stated that the main preservation of public liberty in England consists in the distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure by the Crown”.
Although in theory the distinction between legislative and judicial powers may be blurred as both emanate from parliament, in practicality the judicial function should essentially be exercised by and through the judiciary.
This separation is essential for ensuring the legal maxim Omnia praesumuntur rite et solemniter esse acta (all acts are presumed to have been done rightly and regularly). It would also ensure good governance. In an earlier published article in this journal I said: “Overall public interest in good governance is now a common feature in the modern state, and is not restricted to the academics and practitioners who bore the burden of evaluating governance in the past. The increasing concern and interest in good governance may be attributed to the public being more educated and aware than before, which is now popularly known as “civic literacy”, coupled with the proliferation of complex issues that have emerged with globalization and an international awareness that has spread to national boundaries. Therefore, an empirical demonstration of good governance has now become a compelling need that could provide the necessary tools for the public to develop their own desired models of governance which are capable of delivering goods that accord with their expectations”.
Essentially, governance, which is critical to the proper running of a State, is a set of responsibilities and practices that are aimed at achieving strategic direction and ensuring that objectives are achieved. Indicators of good governance are are: involvement of citizens; accountability of actions of the governing body; transparency; equality in social inclusion (gender, ethnicity, age, religion etc); ethical conduct; integrity; ability to compete in a global environment; ability to work as partners with other governments or bodies; fair procedures and due process; and respect for the rule of law. A State’s adherence to the rule of law is extremely important as a determinant of good governance. It carries the principle that law (as administered by the ordinary courts) is supreme and that all citizens (including members of the government) are equally subject to it and equally entitled to its protection.
Although Lord Esher in 1887 made a public statement that His Lordship abhorred the use of legal maxims, they do have their role to play in good governance. Two such maxims that come to mind are : Actus curiae neminem gravabit (An act of court shall prejudice no one) and Accusare nemo se debet; accusare nemo se debet nisi coram Deo (No one is bound to accuse himself except to God.)