“Laws”, wrote the French novelist Honoré de Balzac, “are spider webs through which the big flies pass and the little ones get caught.”
In the law’s bestiary, there are few greater insects than the state. There is a school of thought that holds that the state is not only the greatest insect but also the most poisonous one.
The state of the doctrine has been described as “profoundly unclear”, while Professor Nelson calls the doctrine “fuzzy at best”. Seidman describes the doctrine as living a “secret life”.
The doctrine does not come to the public on its own; like a disabled man on a wheelchair, it has to be wheeled around, and this doctrine survives at the breast of the “mice” in the judiciary. The courts decide whether to invoke it or not. This is because the definition of a political question is that a “political question is whatever a court says it is”.
The political question doctrine should be dead, is dying or is actually dead. The political question doctrine has no redeeming definitional value. Mulhern writes that opponents of the doctrine build their critiques on “two intertwined assumptions”.
Of the political market and thicket
The first is that “the judiciary is the only institution with the authority and capacity to interpret” a constitution. The second is that “to limit the judicial monopoly on constitutional interpretation is to threaten, if not destroy, the rule of law”.
Justice must not be sacrificed at the altar of technicality
This is an abdication of their duty, the “moral cost” of “the judicial abdication of the review function” has been said to outweigh any perceived benefits.
At the heart of this silent and dying doctrine lies the belief that courts should not accept an invitation to go into the political thicket, that the judiciary should not accept the gates and its walls to be painted with mud; and the throne of justice from where its judgments are delivered polished with mire.
As such, the political question doctrine is termed as a doctrine that prohibits the courts from resolving questions or matters that should be left to the other arms of the government – the judiciary and the legislature. It suggests that the court system has the mandate to hear and determine only legal matters and not matters politics. John Finn describes the doctrine thus:
“The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political…then the court will refuse to hear that case. It will claim that it doesn’t have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.”
Sonja Ralston Elder, conceives democratic institutions, such as legislatures, as a type of political market. He argues that in the political market, politicians act to maximise their chances for re-election, and one gains election by accumulating more votes (political capital) than one’s opponent.
Richard L. Hasen opines that to maximise efficiency, the politician will seek capital with a low marginal cost, from interest groups who control large numbers of votes and are easy to please. When these political markets function properly and there are no externalities such as disenfranchisement, political markets, like economic markets, provide an efficient allocation of resources.
He concludes by adding that just like economic markets, however, these political markets also can fail. When an economic market fails, external factors come to play in order to ‘’jump-start’’ the process of redeeming the market.
In a similar manner, when these political markets fail such as a failure in the legislative branch, there is need of an external institution to jump-start the redeeming process. Heise avers that when the legislature fails, it is the court to declare that the rights have been violated. He states, “When there is a political market failure in the legislative branch, the courts can frequently step in and “jump-start” the process by declaring that someone’s rights have been violated.”
Where, the political market fails due to different players serving different constituencies, it is the court to ‘jump-start” the market since “unlike other elected officials, judges do not serve particular constituencies but are sworn to apply the law impartially to any litigant appearing before the court. Once elected to the bench, a judge’s role is significantly different from others who take part in the political process…”
The failure of an unchecked political market has permitted both legislative and executive authority that has led to legendary patterns of abuse.
Go do what you want! You are untouchable
“What is the point of a carefully calibrated system of divided and limited power if those who exercise authority can secure an automatic exemption from its strictures merely by playing the foreign-affairs trump?”
This dying doctrine is usually invoked by judges to shield the legislature or the executive from judicial review to dismiss a case as merely political is to abdicate that sacred duty. This dogma has long been criticised for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities.
Thomas Franck has argued that “the abdicationist tendency, primarily expounded in what has become known as the ‘political-question doctrine,’ is not only not required; it is also wholly incompatible with American constitutional theory.” When a court refuses to hear a matter while insisting on this political doctrine, the judiciary will be establishing governance by men and women who are exempted from the law.
As Franck explains, “[a] foreign policy exempt from judicial review is tantamount to governance by men and women emancipated from the bonds of law.” Justice Amua-Sekyi made the following observation about the reach of the Supreme Court’s powers under the Ghana Constitution:
When a court holds that the matter is not justiciable, this amounts to an abdication of its sacred duty
Furthermore, the doctrine as it stood left far too much discretion to individual judges, creating a state of jurisprudential chaos and incoherence.“It was said that the issue is a political one that the plaintiff ought to have made its complaint to Parliament. However, there is nothing to stop it from making a legal issue of it and coming to this court for redress. As the fundamental law, the Constitution controls all legislation and determines their validity. It is for the courts to ensure that all agencies of the state keep within their lawful bounds.”
This sacred duty has been clearly set out in Glenister v President of the RSA, where the Court found as follows:
“In our constitutional democracy, the courts are the ultimate guardians of the Constitution. They not only have the right to intervene in order to prevent the violation of the Constitution, they also have the duty to do so. It is in the performance of this that courts are more likely to confront the question of whether to venture into the domain of other branches of government and the extent of such intervention. But even in these circumstances, courts must observe the limits of their power.”
The South African Constitutional Court in Minister of Health and Others at paragraph 99 underscored the Court’s role to protect the integrity of the Constitution stating:
“The primary duty of courts is to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. The Constitution requires the State to respect, protect, promote, and fulfil the rights in the Bill of Rights. Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive that is an intrusion mandated by the Constitution itself.”
It further noted:
“The primary duty of Courts is to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. The Constitution requires the state to respect, protect, promote and fulfil the rights in the Bill of Rights. Where state policy is challenged as inconsistent with the constitution, courts have to consider whether in formulating and implementing such policy the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the constitution to say so. In so far as [that action] constitutes an intrusion into the domain of the executive that is an intrusion mandated by the constitution itself.”
In Martin Wambora, when the petitioner questioned the impeachment process, the Attorney General raised an objection and argued that the impeachment was a political question and that the courts were not to intervene, the court held that that (the Judiciary), being the only arm of government vested with the power to interpret, safeguard and protect the Constitution, has a duty to intervene in the duties of other arms of government where it is alleged that the Constitution has been violated or threatened with violation. As such, the doctrine of separation of powers did not inhibit the Court’s jurisdiction to address the petitioner’s grievances.
Further, the High Court has a supervisory role; the Court of Appeal has explained the role of the High Court in an impeachment process which is considered to be a political question. Though the process of removal of a governor from office is both a constitutional and a political process, the political question doctrine cannot operate to oust the jurisdiction vested in the High Court to interpret the Constitution or to determine the question if anything said to be done under the authority of the Constitution or of any law is consistent with or in contravention of the Constitution.
The Court held thus:
“Our reading of Article 165 (6) of the Constitution reveals that the role of the High Court for purposes of removal of a Governor from office is inter alia supervisory in nature to ensure that the procedure and threshold provided for in the Constitution and the County Governments Act are followed. If the process for removal of a Governor is unconstitutional, wrong, un-procedural or illegal, it cannot be said that the court has no jurisdiction to address the grievance arising therefrom.”
When a court holds that the matter is not justiciable, this amounts to an abdication of its sacred duty. Kpegah JSC, a Supreme Court justice in Ghana supports this position. As he stated in Abban: “… to refuse to do a constitutional case on the ground that it is a political issue is to abdicate our responsibilities under the Constitution, and to breach, in particular, articles 2 and 3.”
Should the courts abdicate their sacred duty?
The Supreme Court of South Africa In the matter between The Speaker of the National Assembly and Patricia De Lille (MP) offers the answer wherein it was stated:
“…No Parliament, no official and no institution is immune from judicial scrutiny…”courts ought to take care not to be intimidated when an issue with a political dimension is raised. They must also jealously execute the sacred responsibility and mandate entrusted to the judiciary by the people. In doing so, they should not allow the political question doctrine to stop inquiry into the conduct of the executive or legislature. Courts should be robust in interpreting the Constitution.”
According to Pieterse, the executive has taken over the legislature, and citizens are only depending on the judiciary to protect their rights. He contends:
“Given the executive’s stranglehold over the legislature, citizens increasingly look to the judiciary to ensure accountability and for the protection of their basic interest. Today, the judiciary acts both as watchdog over the other branches’ adherence to the doctrine of separation of powers and as primary protector of citizens’ rights within its confines.” In South Africa, as elsewhere, this reality has been underscored by the introduction of a justiciable Bill of Rights, which “fundamentally changed the place of the judiciary in South Africa’s constitutional and political order”.
The duty to enforce positive rights
“Yes, your Constitutional rights are being invaded, but be patient, we will see whether in time they are still being violated.”
The Judiciary as a bastion of the rights of the people is the safeguard and watchdog of the rights, which are fundamental to human existence, security and dignity. The twin roles of the courts as a protector of legal rights, and its duty to “say what the law is has been said to result in the principle that a court must hear a case that is properly before it. This principle was well articulated by the United States Supreme Court:
It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because is approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.”
There is a widely shared conviction that if one has been wronged, one ought, in fairness, to have some recourse through the state against the wrongdoer. In order to uphold these sacred responsibilities, a court should not apply the political question doctrine in a manner that prevents it from fulfilling its constitutional duty.
When an individual’s rights have been violated, he or she sees the court as the helper to give a remedy, relying on this silent doctrine would equally amount to telling the petitioner that “yes, your rights have been violated but we cannot help” Craig Scott and Patrick Macklem have argued that when courts rely on this silent and a dying doctrine to deny the petitioner from seeking a redress from the courts, it excludes those interests and rights from a process of reasoned interchange and discussion, and forecloses a useful forum for the recognition and redressing of injustices”.
According to Chopper, courts should be “exceedingly reluctant to find an individual rights claim to be non-justiciable, even though it may concern ‘politics’, the political process, or the internal workings of the political branches”. They have a duty to enforce the bill of rights.
The South Carolina Supreme Court has taken this approach. That Court held that the political question doctrine did not prevent it from considering whether the state was meeting its obligations arising out of a constitutional right to education.
Moreover, the mere fact that political rights are involved does not create immunity from judicial review, where rights have been violated, the intrusion by the courts is not a disrespect to the executive or the legislature, the Illinois Supreme Court case of Kluk v. Lang is of value here, the Supreme Court held that voters could challenge the authority of a political party’s committee to appoint an individual to fill a vacant legislative seat. The Court strongly emphasised that the Judiciary had a responsibility to intervene when other branches of government interfered with the rights of individuals.
The existence of positive rights requires courts to be engaged in matters of public governance, positive rights unlike the negative rights to do an act. As Professor Helen Hershkoff puts it, “[t]he enforcement of positive rights thus requires a state court to share explicitly in public governance, engaging in the principled dialogue that commentators traditionally associate with the common law resolution of social and economic issues.”
It is unlikely for an executive action or legislative action to satisfy such a constitutional obligation unless judicial rulings call for such action. There is higher need for a judicial threat to act in the stead of a recalcitrant legislature, in order to create an incentive on the legislature or executive to act.
Judicial threats are a common means of enforcing constitutional rights. For example, Article III of the United States constitution, courts threaten through the exclusionary rule to suppress evidence gathered in violation of the Fourth Amendment.
The right to access the courts
“The right of access to courts can only be taken away by clear and unambiguous words of the Parliament of Kenya”. The 2010 Constitution is a new birth, it has been baptized the locus standi, and it provides as a human right that each citizen should have access to the courts. Olubenga correctly argues that this political question doctrine robs litigants of legal coverage on flimsy issues, he states:
“This somewhat unpleasant situation is brought about by the fact that the ‘political questions’ doctrine seeks to achieve the direct opposite of the major aim of the justicability principle. while justicability principle is concerned with allowing all legal matters/issues properly before the court to be heard and decided by the court, the political questions doctrine seeks to rob litigants of legal coverage, not because his suit was not properly brought, but simply because such suit belongs to the realm of actions categorized as ‘political questions’”
Courts should not interpret the law in manner that would end up turning away the litigants. To say that a case is non-justiciable is to say that the plaintiff has no judicially enforceable right. The judiciary ought to guard its jurisdiction jealously, in fact as Ran Hirschl has argued, they should they should be expanding it to cater for the moral dilemmas and political controversies that come with an expanded catalogue of rights and judicial review mechanisms. To this effect, Mulenga, JSC has held:
“The tendency to interpret the law in a manner that would divest courts of law of jurisdiction too readily unless the legal provision in question is straightforward and clear is to be discouraged since it would be better to err in favour of upholding jurisdiction than to turn a litigant away from the seat of justice without being heard; the jurisdiction of courts of law must be guarded jealously and should not be dispensed with too lightly and the interests of justice and the rule of law demand this.”
The constitution as a legal/political document
Every constitution is both political and legal, the procedure of getting a new constitution is political, and its contents are also political. A constitution provides for a structure of a government. The people participate in its creation, hence it is not purely legal. The Supreme Court of India in State of Rajasthan has held:
“Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political. A constitution is a matter of purest politics, a structure of power and as pointed out by Charles Black in Perspectives in Constitutional law’ “constitutional law’ symbolizes an intersection of law and politics, wherein issues of political power are acted on by persons trained in the legal tradition, working in judicial institutions, following the procedures of law….”
As such every matter that arises for interpretation, is either political or it must have a political inclination Adade JSC aptly captured this position. In the 31st December Case: “…The Constitution itself is essentially a political document. Almost every matter of interpretation or enforcement which may arise from it is bound to be political, or at least to have a political dimension”
Amua-Sekyi JSC arrived at the same conclusion:
“It was also said that the issue is a political one that the plaintiff ought to have made its complaint to Parliament. Perhaps, if it had been represented in Parliament it might have sought an amendment or repeal of the offending legislation. However, there was nothing to stop it from making a legal issue of it and coming to this court for redress.”
Any citizen whose right has been violated should not be blocked by the courts while relying on this silent but dying doctrine. In Davies, Spry VP quoting the case of Pyx Granites stated: “It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s Court for the determination of his rights is not to be excluded except by clear words.”
To ensure that justice is not sacrificed at the altar of technicality, the Court is enjoined to invoke its inherent power while interpreting the Constitution and legislation, to preserve the values and principles of the Constitution.”
The courts are there to provide an oversight of the democracy; they are not usurping the powers of the other organs. (