The ruling by the former CJ is a classic case of judicial over-reach

Dear Editor,

What is good or bad for democracy is properly left to the people and their parliamentary representatives.

The Court of Appeal, it was reported, is soon to entertain the government’s challenge to the ruling by the former Chief Justice that the constitutional provision on presidential term limits is unconstitutional. The Appeal Court in its lifetime will confront many intricate legal cases, but this is not one of them.

The ruling by the former CJ is a classic case of blatant judicial over-reach, of the judiciary straying far outside its yard into that of the legislature.

The core premise of his ruling ‒ that (i) “any Act of Parliament which seeks to diminish such essential democratic values cannot be of legal effect without a referendum…”; and (ii) “on the other hand, an alteration of any of those provisions which seek to widen or promote the values or rights therein contained would not require a referendum, and a 2/3 majority vote of all the elected members would suffice…” ‒constitutes a glaring political matter not a legal one. For what diminishes or widens democracy as a concept is not a question for judges, but for electors and legislators.

The concept of democracy is burdened with value judgments, context specificities, and empirical and theoretical complexities.  As one moves further and further beyond the core or safe agreements on democratic practices (such as on fundamental human rights, a free press, and an independent judiciary), deciding on refinements becomes an everlasting challenge. With the former CJ’s ruling, the judiciary has appointed itself the country’s leading scholar in governance and political science. So, should the parliament change the formula to select the chairman of Gecom, or should it further restructure the local government system, the former CJ’s ruling, if not overturned, allows the judiciary to intervene, if a challenge is filed, to determine if the amendments should stand or fall on their democratic credentials.

This is a wayward and dangerous understanding of the role of the courts. What is good or bad for democracy (what “democratic” in Article I translates into) is properly left to the people and their parliamentary representatives. The former CJ’s brave but misguided ruling should be quashed.

Yours faithfully,

Sherwood Lowe

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