The Judicial Role In The Commonwealth (Part 1)
E.K.M. Yakpo
One of the major criticisms of the judiciary in the Commonwealth is their handling of political disputes dressed in legal context. E.K.M. YAKPO examines some of these legal cases against the background of coup d'etats and constitutional upheavals in Commonwealth countries.Recently there has been much discussion about Law Reform, not only in Ghana but also in much of the Commonwealth. But before any meaningful reforms can be put forward, it is important to try to find out how judges in the Commonwealth approach their work, especially during a constitutional crisis. In this article, three situations will be examined,
(i) the Courts' attitude to military or unconstitutional regimes,
(ii) their views on constitutional breakdowns and
(iii) how they exercise the power of judicial review of legislation.
One of the major criticisms of the judiciary in the commonwealth is their handling of political disputes dressed in legal context. Some of the coup d'etats have been brought to court. The judges were then faced with various alternatives:
(i) remain in office, asserting the pre-revolutionary constitution, thus deriving their jurisdiction from that constitution, thereby denying validity to any of the revolutionary actions,
(ii) to resign
(iii) to remain in office but apply the doctrine of state necessity,>
validating revolutionary actions which are aimed at the maintenance of law and order.
(iv) to remain in office and recognise the new 'government' as a de facto though not as a de jure regime.
(v) or to identify themselves with the new regime and sit as courts of the revolutions.
These choices were faced by courts in Pakistan, Cyprus, Uganda and UDI Rhodesia. In Pakistan in 1954 and in Cyprus in 1964, the courts chose to remain in office and with great ingenuity, discovered the doctrine of 'state necessity' which enabled them to apply the law consistently with the political reality. Rhodesia's judges also initially took this course after UDI was declared.
In all cases, the courts were called upon to determine whether clearly unconstitutional acts, carried out by unconstitutional 'governments' had any legal validity. The doctrine of necessity was applied in the series of cases which went to court in Pakistan in 1955. In these so-called reference cases, the supreme court of Pakistan held that the Governor-General of Pakistan was right to dissolve the Legislative Assembly and unconstitu- tionally assume political power. All acts done by him therefore, were valid, for, the 'law of necessity' prompted him to act. However, it was in the Mustapha Ibrahim Case, 1964, that the Supreme Court of Cyprus clearly elaborated the doctrine. In that case, the Cyprian parliament created the new supreme court of Cyprus while the Turkish members had boycotted it.
This was in contravention of the constitution which clearly stipulated that the concurrence of the minority Turkish members was mandatory in all important matters of state.
The appeal before the court in the Ibrahim Case was challenged on the grounds that the court was unconstitutionally created therefore lacking jurisdiction. The Attorney General pleaded the defence of 'state necessity' and the court accepted it.
In his judgement, Josephides J, outlined the conditions under which the defence would be accepted. Quoting a passage from Raymond Odent, he said that the defence would be accepted where: (i) an imperative and inevitable necessity of exceptional circumstances existed. (ii) No other remedy would apply (iii) The measure taken must be proportionate to the necessity and (iv) It must be of a temporary character limited to the duration of the exceptional circumstances.
It is difficult to see how the creation of a supreme court can be said to be such an 'inevitable necessity' of a 'temporary character' constitution had to he violated that the court, in its anxiety to please, did just that. The Ibrahim case was followed recently in the Begum Bhutto Case and also in UDI Rhodesia in Madzinbamuto v Larcher-Burkee.
The doctrine of state necessity itself is an old one. It was discussed by Bracton who said "that which otherwise is not lawful, necessity makes lawful" and "the safety of the state is the supreme law." Dicey also deals with the subject and concludes that "for the sake of legality itself the rules of law must be broken." Chilty thought highly of it and so did Maitland:- "The only ground on which all that was illegal can be held to be legal was . . . the necessity of the situation."
But what these learned jurists had in mind was a constitutionally legitimate government having to do unconstitutional acts once a while in the interest of public good and the protection of the state. Unconstitutional usurpation of power remained treason in their eyes. Nor did these gentlemen have cases of constitutional breakdown, as in the Ibrahim case, in mind. Judges who applied the doctrine in these situations, were clearly misusing it.
The fourth alternative, that of remaining in office and recognising the new regime de facto, was the choice of the Rhodesian courts. Justice Sir Hugh Beadle claimed, the The Chief court derived its authority neither from the constitution of 1961 nor from that of 1965. He saw the courts authority arising from the de facto situation that the regime was allowing the court to operate. He was therefore willing to permit the 'government' to do anything its predecessor could lawfully have done. Clearly, the court here was disguising a political decision in legal terminology. The credibility of such a court sinks very quickly. The last alternative, of identifying themselves with the new regime, has explicitly but judges in Pakistan, Uganda and UDI Rhodesia virtually did so by hiding their political preferences behind Kelsen's 'Pure Theory of Law'. According to Kelsen, the validity of any legal act is authorised by a higher norm. So that when a judge sends a convicted criminal to prison, he derives his authority from an Act of parliament which prescribes the higher norm that anyone who steals ought to be punished.
Parliament itself derives its authority from the instrument which established it. So the hierarchy continues until one arrives at the original constitution which started the chain reaction. This he calls the 'Arundnorm' or the Basic Norm. Should there be a violent and far- reaching revolution which utterly changes the personality of the state (such as the Russian Revolution, or the Maoist and Cuban Revolutions), then a new Arundnorm is established and continuity with the past is severed, and a new role begins.
Here was a convenient ploy judges could use to justify their political biases for new regimes. The most famous of the 'Kelsen Cases' (as I shall call them) was the Dosso Case 1958 in Pakistan. The supreme court validated the abrogation of the 1956 constitution, the dismissal of the central and provincial governments and the national and provincial legislatives and the introduction of martial law, because this was a 'revolution'. Strange as it may sound, the decision was followed by the supreme court of Uganda in the Matovu Case 1966, and by the Rhodesian court in the Madrimbamuto Case 1968. In Ghana the attempt was made by the Attorney-General in the Sallah Case 1970, to introduce Kelsen into the courts. It was rejected happily, Apaloo F K, (now Chief Justice) was emphatic of his dismissal of the theory.
Anyone faintly acquainted with jurisprudence would be surprised that a court could even think of applying Kelsen's theory. He himself plainly indicated in his book that his theory! was meant solely for the legal theorist and not for the judge, since what the judge does is motivated by political ideology therefore not open to analysis. Kelsen himself had been a judge of the Austrian Supreme Court, and ought to know. After the Dosso Case he wrote a bitter attack of the case in the Stanford Law Review (17) 1965. Perhaps because of it, the Pakistani Supreme Court overturned the Dosso Case and in the Asura Jilani Case 1972, finally laid the Kelsian adventure to rest.
