SHOULD THE JUDICIARY TOE THE LINE?

THERE has been a lot of comments in the field of separation of powers between the Executive, the Legislative and the Judiciary since Chief Justice Vivekanand Alleear issued an order directing the Speaker of the National Assembly to re-instate Mr Franky Elizabeth as a Member of the National Assembly after the latter had been dismissed from his position by virtue of a decision taken by the Leader of Opposition, Mr Wavel Ramkalawan to replace Elizabeth who was the proportionally-elected member and replacing him by another person.

Unaware of the order of the Chief Justice, the Speaker had assented to the request of the Opposition Leader. Since both the Leader of Opposition and the Speaker were not aware of the decision taken by the Chief Justice, it is clear that there was no contempt of Court of any kind. However, the instance has given ground for a lot of questioning  particularly the extent to which a judge should encroach on the domains of the Executive and the Legislature.

In many countries, judicial activism was born because the Executive refused to toe the line with an eye on the vote bank. There are many who will argue that if the Government refuses to take the right steps for public welfare, it has to be pushed to do so. Therefore, judicial activism can rise in a situation when Government behaves in a wayward manner.

Many of course take the view that the Judiciary is there to keep the Executive and Legislative in check. It acts as a deterrent for the ruthless parliamentarians and careless bureaucracy. If the other two organs of the State are so worried about the so-called judicial excesses, they should themselves first behave in a constitutional manner. Indeed, if the Executive violates s statutory rule or act in a malafide manner  judicial intervention is a must or else too much power will go into the hands of unscrupulous elements in the bureaucracy. This way, a judiciary can be regarded as a watchdog of democracy.

Of course, all these arguments only make sense if the Judiciary is truly independent and not the captive tool of a One-Party minded Executive.