The purpose of Judicial legislation

The ongoing Parliament session has made various amendments to the Civil and Criminal Procedure Code (CCPC) and other laws in its agenda and certain concerns have been raised regarding the judicial decisions when it amends the legislation passed by the Parliament. 

This concerns the separation of power between the Legislature and Judiciary, doctrine of checks and balances and how far each branch can venture into the jurisdiction of another, without offending the separation of powers doctrine.

Article 1(13) of the Constitution guarantees the separation of power between the Executive, Legislature and the Judiciary. However, this non-encroachment is not absolute by virtue of later half of the same article which states, “…except to the extent provided for by this Constitution.” While non-encroachment is required, exceptions can be made under the provisions of the Constitution, and each branch can function as checks and balance against the other.

The Parliament, under Article 10(1) has the primary function of legislating and making policy decisions, amongst others. The Judiciary, to safeguard, uphold and administer justice fairly and independently, under Article 21 (1). While the primary role of the Judiciary, as understood generally is to adjudicate as per the laws passed by the Parliament, it does not necessarily limit to simply reading the text of the statute alone. As our legal system is not strictly a civil law system, adversarial elements call for exercising functions greater than that. Supreme Court being the guardian of the Constitution and final authority in its interpretation (Article 1(11), has a role that is higher and far significant than other Courts and conventional dispute resolution mechanisms are understood to possess.

There are instances when the Judiciary can take up the function of legislature, not in the sense to make new laws and enforce, but in interpreting the legislation passed by the Parliament. Supreme Court has advisory jurisdiction pursuant to Article 21(8) of the Constitution and Section 18 of CCPC. Such function was exercised by the Supreme Court in the matter regarding establishment of Thromde and Yenlag Thromde, under the previous government.

Another substantial power is pursuant to Article 1(10) of the Constitution, ultra vires doctrine, the test of Constitutionality of the legislation and policies passed by the Parliament, which, if it contravenes the Constitution may be declared null and void. While it is highly unlikely that the Parliament would pass laws that are inconsistent with the Constitution, such challenges nevertheless can be made before courts. For instance, in India, the new Citizenship Amendment Act has been widely challenged before the Supreme Court as violative of Constitutional principles. If an act of the legislature is challenged of its constitutionality, Courts have the duty to judicially review against the Constitution and its principles. 

Article 21(10) states that Supreme Court and High Court may issue declarations, orders, directions or writs as may be appropriate. While it is not a substantial legislative function, it furthers the power of judiciary to interpret laws. Issues were also raised if the rule-making power should be limited to Supreme Court only, but that may potentially conflict with the above Constitutional provision. The High Court also has that power for a good reason, because it is the court of first instance for Constitutional and other important matters. This provides avenue for appeal to Supreme Court, who can review the decision, thereby making it a better considered decision, rather than Supreme Court issuing final decision at once.

The authority to fill lacuna and make rules under section 28.1, 30 and 30.1 of the CCPC are not to substitute the statutes with the judicial decision, but rather to further the meaning and purpose of statutes while applying them to the real facts of the case. 

While the Parliament may have passed the statutes in speculation of what might happen and how that should be addressed, the statutes are brought to life in the Courts through application. This tends to expose the inconsistencies and shortcomings in the statute and its effects, and if required, within the allowable parameters, courts must make rules, issue interpretative explanations and guidelines to give effect and meaning to the intention of the legislature. Such attempts, including nullifications are made by the courts only in instances such as, when the statute gives an absurd meaning or effect, or if there are conflicting provisions within the statute or with a different statute.

Parliamentarians also raised concerns regarding the ruling of the Courts which has the effect of altering or repealing the legislation or part of it, and if there can be a system of communication between the Judiciary and the Parliament when the Judiciary faces issues with implementation. This could be contrary to the free, fair and independent administration of justice by the Judiciary, and the two institutions are not designed to cooperate that way, and the function of check and balance is not to be exercised in this manner.

Even if such a system of correspondence was established, Parliament could not hand out interpretation to the Judiciary without undermining the judicial independence. Members of the Parliament themselves would differ in what the law should mean, because after all, only in rare instances are the legislations and policies passed unanimously. Surely the minority group of parliamentarians who did not vote in affirmative must have different interpretation, and even among the majority who voted in favour may also differ in their opinion if asked. Outside the legislative proceeding, there is no entity in NA or NC that can be corresponded to, who can make such authoritative decisions of or for the Parliament, especially legislation.

It will be absurd and not fitting for the Parliament to even consider convening an extraordinary session just because Judiciary came across a minor inconvenience in implementation, and surely, the court cannot sit on for the next session of parliament to address the issue either. Also, it is not the mandate of Parliament to participate in interpretation of laws before the Courts. Laws passed by the Parliament are not cast in stone, but rather subject to change with the changing norms and dynamics of the society. It is also not one size fits all solution, and when it is tested against real facts in the courts, sometimes the legislation do not make sense, and requires minute adjustments and modifications, which the Courts are justified to advance and is perfectly normal in any legal system around the world.

Rest assured that it is not in Judiciary’s mandate to undermine the acts of the parliament but rather to respect and implement the legislation. Any judicial orders issued nullifying or having same effect on any provision of a statute is a result of careful consideration and only in the rarest of the rare cases. Otherwise, Judiciary exercises self constraints and try to implement the vision of legislature without offending the acts of Parliament. Judges also feel comfortable in exercising its duties within the text and content of the statute, and harmonizing the inconsistencies and conflicting provisions as far as possible. The intent and purpose of judiciary rulemaking is not to encroach into the parlance of legislature, but rather to achieve uniform and consistent application of laws and provide with the best possible meaning to the statute. 

Even if the Supreme Court has nullified or amended a part of statute through its judgment, it is merely a provisional measure and not the end of it. The Parliament always has the authority to make amendments that can nullify the effects of the judgment. In that process, the inconsistencies and conflicts that the Judiciary has unearthed could be addressed by the Parliament, which again will be implemented by the Judiciary. Parliament must not get offended by judicial decisions, it must rather look into as opportunity to address shortcomings, and address that through Parliament’s legislative powers. After all, the institutions of Executive, Legislature and Judiciary are geared towards achieving the noble vision of our beloved Monarchs, Constitution, Gross National Happiness and aspirations of the people, but through different means and process. 

Contributed by,

Dawa Gyeltshen

Thimphu

Disclaimer: The opinions and views expressed in the article are those of the authors alone and not of any institutions, entities or persons referred to or discussed in the article.

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