As a country, on the whole we tend to be very tolerant of the political theatrics, antics and political acrobatics of our politicians, and may even tend to dismiss them (the politicians) with a huge yawn and bored shrug. The sometimes intellectual hollowness of the bamboo or shallowness of the saucer doesn't seem to bother us a bit.
However, when something seems amiss with the judiciary or the judicial system, we get a bit nervous and apprehensive. I seem to recall an instance when a former Chief Justice, involved in a "stand-off" with a former AG, complained publicly that "there's more than one way to skin a cat," or words to that effect. Even before that time, three High Court judges, having allowed the appeal of the soldiers charged with the 1970 mutiny at Teteron, seemed to have incurred the displeasure of the then Executive. Two of them migrated to other legal pastures and the third one was clearly bypassed for promotion to Chief Justice. Perhaps a coincidence.
Subsequently, another Chief Justice was made to publicly "bite the dust and twist in the wind" for reasons and from apparent motives that are yet undetermined, and, I might add, leaving a bitter taste on the national palate. Perhaps yet another coincidence. Far be it from me to suggest anything sinister, although I have some difficulty in connecting the dots. To those who say, "Let sleeping dogs lie," my reply is, "Should it not always be the case that those who allege should be required to provide the relevant evidence and/or the means for supplying such?"
Nuff said on that score. Perhaps, instinctively, we recognise that the judiciary is the third crucial pillar upon which our democratic republic presumably rests. The other two are the Executive and legislative branches of government, which are not my present concern. The judicial function is entrusted to the courts, which are responsible for administering justice "without fear or favour, malice or ill-will." The opposite is presumably the prerogative of politicians. The judicial officers are expected to adjudicate according to the particular merits of the case before them and their best understanding of how the relevant law applies. As obvious and common place as this sounds, it can't be overemphasised.
To ensure the independence and impartiality of judges and those who perform judicial functions, their security of tenure should be such as to insulate them from political pressures or extraneous influences emanating from the legislature, Executive, privileged or powerful sections of the community or any other source. Ironically, although some sceptics are known to characterise the judiciary as an unelected body, answerable to no one but itself, however, the part of the equation that's missed here is that the well-being of any judicial system depends on the fund of public trust in its credibility and reputation for enlightened, unbiased judgment and fairness. To those whom much is entrusted to much is expected from.
It's not difficult to see why a constitution should go to great lengths to secure the independence of the judiciary when one considers that it is supreme law and the court is its own ultimate interpreter. It follows then that the court is empowered to decide on the legality of any act of the legislature or Executive and determine whether it is at variance with any provision of the Constitution. That function of the court to determine the limits set by the Constitution on the Executive and/or legislature is of paramount importance to the rights and freedoms of the individual citizen and cannot be construed in the same way and upon the same principles as, for instance, laws regulating the licensing of dogs or cock-fighting.
The "interpretative function" of the judiciary is underlined by the distinct possibility that if any government is not limited by the terms of a constitution it is necessarily only limited by the capacities, incapacitates, idiocies, idiosyncrasies and the sheer stupidity of those who are allowed to exercise political power. Our experience over the years should confirm that I'm not indulging in hyperbole. Sometimes the Constitution remains the only shield that the hapless, solitary, aggrieved and defenceless citizen-even, on occasion, a member of the judiciary itself-has against the impersonal, crushing might of officialdom or even more powerful citizens or organisations.
Ideally, the Constitution should protect the weak against the strong and the strong against themselves, or even the State itself against more menacing elements. Judicial decisions, however, are not always as clear-cut as some would want to imagine. Sometimes, even for the finest legal minds, it boils down to a question of "several rivers to cross, which one is the right one?"
It seems to me that one needs to consider a constitution against the background of some underlying themes which presumably influenced, if not inspired, its contents and structure. For instance, such themes as "parliamentary democracy," collective responsibility," "accountability," "participatory democracy," "separation of powers," and, whisper it not in Gath, "morality in public affairs." Ironically, a constitution is a formula that paradoxically attempts to set limits and allow latitude simultaneously. A Constitution admirably suited for a particular time may become antiquated and inappropriate in the light of unforeseen and unforeseeable circumstances.
THOUGHTS
• Ideally, the Constitution should protect the weak against the strong and the strong against themselves, or even the State itself against more menacing elements.