| 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.)
 Jeffrey Toobin, a staff writer at The New Yorker ...){kind=link}