By: Mohamed Nazeel
According to the
declaratory theory, judges are law finders not law makers. They only expound,
declare and publish what the law is. Their decisions are pre-existing law.
Furthermore, the doctrine of Parliamentary supremacy states that Parliament is
the sole law makers and it is the function of the judiciary to interpret the
law and settle legal disputes.
As a general rule,
Parliament passes an Act, and it is the function of the judge to interpret and
give effect to the wishes of the Parliament as expressed in the statute.
Parliament is supreme and it is not possible for anyone to challenge the
validity or disregard statutes in courts. Parliament claims to be the sole law
maker and it is said that judges cannot interpret in anyway which contradicts
the provision of a statute. However, most of the time this is easier said than
done. If a statutory provision is ambiguous, the judge must interpret the statute
so as to give effect to the intention of the Parliament. They do this is two
ways, by judicial precedent and statutory interpretation.
One of the fundamental
characteristics of law is the objective that “likes cases should be treated alike”. The function of an English
judge is not to make law but to decide cases in accordance with existing law
and from this comes the doctrine of binding precedence or stare decisis. Stare decisis means that any previous decision
of a court is binding on another judge who is dealing with a case which is not
reasonably distinguishable from the previous decision. The purpose here is to
provide certainty and uniformity.
On principle, the
court should regard itself normally bound by a previous decision of the court,
nevertheless it should be at liberty to depart from it if it is convinced that
the previous decision was wrong. Too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper development
of the law. The difficulty arises in determining how much discretion the court
can exercises without making new policy.
There are two basic
approach to statutory interpretation, the literal and the liberal which adapted
by the judges. However, these approaches are only used when the judge has to
face the arena of gladiatorial politics and when the social, economic and
political aspects are involved in the outcome of a case.
The judge by
convention must stay clear from indulging into the political gallery. The judge
had stayed neutral of politics when he interprets the plain grammatical words
literally. He had avoided the judicial distrait with the political conflict by
just laying the law that is already there without slashing with the government
of the day.
The liberal approach
allows the judges to examine the purpose and consequences of an Act while
interpreting the true intentions of the Parliament. This imports a great deal
of flexibility and allows development of the law to promote social, economic
and political values of changing society. However, it is also criticized that
it allows judges to indulge in law-making.
In a democracy,
law-making is primarily the function of the legislature through elected
officials that represents the whims of the society. It is legitimate for the
judiciary to make law only in the limited circumstances to which I have
referred. Hence does judicial law-making undermine the democratic process?
The question seems to
me is whether judicial creations as they are, should they be regarded as
political ideals? In one sense they are certainly nothing less. They are not
morally neutral; they are prescriptive; they are about how powerful people
ought to behave. Much of politics in any ordinary sense of the term is about
how powerful people ought to behave. It is not on the face of it easy to see
why this class of standards, created by the judges, should be categorized as
wholly apolitical while other classes, also concerned with the quality of
public decision-making, should be roundly and unarguably regarded as well
within the political sphere.
As a matter of
fundamental principle, it is my opinion that the survival and flourishing of a
democracy in which basic rights are not only respected but enshrined requires
that those who exercise democratic, political power must have limits set to
what they may do: limits which they are not allowed to overstep. If this is
right, it is a function of democratic power itself that it be not absolute.
It is the law because
it is the law, and no Statute can confer this power upon Parliament, for this
would be to assume and act on the very power that is to be conferred. The
reasoning is the notion of sovereignty is logically prior to the Acts of
Parliament themselves. This is only another way of saying that it is always for
the courts, in the last resort, to say what a valid Act of Parliament is; and
that the decision of this question is not determined by any rule of law which
can be laid down or altered by any authority outside the courts. It is simply a
political fact. It consists to assure that no matter how much we value the
democratic principles it will remain against checks and balances.
When judges act as law
makers, they should have regard to common sense, legal principle and public
policy in that order. To know how ordinary people think and live you must have
mixed with all kinds of people and get to know them. If we are to remain democratic
people those who try to be guided by public opinion we must go to the grass
roots. Judges must not throw to the winds the advantages of consistency and
uniformity to do justice in the particular case. He is not to innovate at
pleasure. He is not a knight errant roaming at will in pursuit of his own ideal
of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition, methodized
by analogy, disciplined by system, and subordinated to the primordial necessity
of order in the social life. The wise exercise of that discretion by our modern
judiciary is essential to the good government of this country as a democratic
nation of equal citizens whose rights and freedoms are effectively protected by
the rule of law.
Disclaimer: Above is an exclusive opinion written to
Adamington Online by Mohamed Nazeel who is currently completing Bachelors of
Law at University of London, UK. Views expressed by writers in this section are
their own and do not reflect Adamington Online’s point-of-view.
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