BY Dennis Ndiritu
Boris Johnson’s decision to suspend Parliament for five weeks in October was found to be unlawful by the UK Supreme Court. The court ruled that it was impossible to conclude there had been any reason, “let alone a good reason” to advise the Queen to prorogue Parliament for five weeks. The move to prorogue parliament had been seen as one trying to stop Members of Parliament (MPs) scrutinising the Prime Minister’s Brexit plans with a longer than necessary suspension.
During a subsequent speech in New York, the Prime Minister cautioned his refusal to be deterred from getting on with “an exciting and dynamic domestic agenda”, which would need the Queen’s speech. In essence, the unanimous decision of the 11 justices effectively nullified Jonson’s decision.
And while a vast majority of the British have viewed the judgment as a serious mistake in extending judicial reach to these political matters, Supreme Court President Lady Hale emphasised that the case was “not about when and on what terms” the United Kingdom left the European Union but rather the decision to suspend Parliament. She stated “The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification.”
Reacting to the judgment, Johnson cast aspersions on the verdict as an “unusual judgment”, with concerns that “the prerogative of prorogation had been used for centuries without such a challenge.” Counsels for the government had argued that the decision to prorogue was one for Parliament, not the courts. But the justices disagreed, unanimously deciding it was “justifiable”, and there was “no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power”. The court also criticised the length of the suspension, with Lady Hale noting that it was impossible for the court to conclude, on the evidence which had been put before them, that there was a good reason to advise the Queen to prorogue Parliament for five weeks.
Thus the Supreme Court underlined that if there is an exceptional use of executive powers by the Prime Minister that infringes on parliamentary democracy, judges have the power to intervene. This judgment reignites the debate on the political question doctrine. Alexis de Tocqueville observed, “there is hardly any moral, political, or public policy controversy in the world of new constitutionalism that does not sooner or later become a judicial one.”
The political question doctrine deals with the justifiability of political questions since the courts only have authority to hear and decide a legal question, not a political question. There has been for a long time a global trend towards a general constitutional empowerment of the judiciary coupled with the emphasis on human rights, collectively called new constitutionalism. New constitutionalism connotes the idea of decline in parliamentary sovereignty and the rise of constitutionalisation and judicial adjudication of disputes.
Courts are thus viewed as platforms for the protection of the constitution and a strong judiciary as a beacon of its workability. Parliamentary sovereignty, on the contrary, view judicial adjudication of political disputes as a move away from popular self-determination and away from policy-making in the interest of the masses. Lord Jonathan Sumption in Shifting the Foundations under his expert lecture series “Law’s expanding empire” notes that a key tenet of the British Constitution is Parliamentary sovereignty. Here, there is no legal limit to what parliament can do and thus sovereignty of parliament is the real foundation of British democracy.
Immense uncertainty surrounds the origin and scope of application of the political question doctrine. This has had the impact of ill-defining the purpose of this doctrine also known as judicial avoidance. The doctrine has its roots in the historic Supreme Court case of ‘Marbury v. Madison’ (1803), where Chief Justice John Marshall noted that where the Constitution’s text, structure and theory‟ denotes that an issue is to be decided by the legislative or executive branch of government, it should be dismissed by courts. The doctrine is grounded in the desire for separation of powers.
It is justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision. The leading Supreme Court case ‘Baker v. Carr’ (1962) outlined six characteristics of a political question: a textually demonstrable constitutional commitment of the issue to a coordinate political department; a lack of judicially discoverable and manageable standards for resolving it; the impossibility for a court’s independent resolution without expressing a lack of respect for a coordinate branch of the government; or the impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court; an unusual need for unquestioning adherence to a political decision already made; and the potentiality of embarrassment from multifarious pronouncements by various departments on one question. The six-pronged formulations have been criticised for their broadness. However, they seem to propose the typical purpose and prudential standard of the doctrine. In an attempt to limit the scope, the Court cautioned that its application should be used sparingly in the context of demonstrable “political questions” devoted to elective branches not simply cases that involve political issues”.
It is suffice to note that the Brexit matter did not meet the six-pronged test as the evidence rendered was not one that would amount the case to one that falls in the purview of the political question doctrine. Thus, amid the political question debate, much credence must be given to the court to for deciding such a political sensitive matter. The Supreme Court was set up to resolve the most complicated legal and constitutional questions of the day, and through its judgment, demonstrated it is not afraid to tread into matters that judges in previous eras would have feared to have been too political. This judgment will prove very important for the future of the British constitution.
However the opposite has been the scenario in Kenya. The Council of Governors filed a case at the Supreme Court seeking an advisory opinion over the Division of Revenue Bill 2019. Instead of determining the matter, the Supreme Court chose an escapist approach, referring the matter to mediation. While respecting the court’s inherent jurisdiction to refer the matter to mediation, it cannot be downplayed that the court lost a good opportunity to pronounce itself with finality on the division of revenue impasse lest it rears its head again. Also perplexing is the fact that although the Senate boasts of a high number of accomplished lawyers and professionals, none of them took quarrel with this escapist route taken by the apex court but were busy with political side-shows and their never-ending superiority battles with the National Assembly. The courage and bravery of the British Supreme Court to decide on very politically sensitive and pertinent issues is an attribute that our supreme court should borrow going forward.
The legislature remains the most powerful arm of government in the liberal democratic set up. Almost every presidential decision has to be approved by it. The legislature also makes laws, controls spending and sanctions decisions on military deployment. The idea that the Supreme Court could leave parliament with so much power yet very little political responsibility over such mundane matters as revenue allocation is the source of great frustration now and in future. (
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