Mr. Buharry,
I have to admit that you have not been very faithful to my principal claim i.e on the issue of judicial activism. You quoted me alright but the constitutional text you reproduced does not address the issues I raised. It only demonstrated the judiciary's constitutional functions of original jurisdiction and the right to judicial review within the judiciary itself. I also know that no Gambian high school teaches government classes that study the critical legal theory of a constitution much more issues of judicial activism. It is very important that we make this distinction so we don't lapse into unnecessary category mistakes.
Once again let me make myself very clear: I have no problem with constitutional duties of the courts. Higher courts should by all means police subordinate courts. However, my contention is with the emergent trend of judicial activism (not review) of the recent High Court decision which totally ignores the constitutional powers of the IEC, essentially disfranchised 2500 plus Gambian voters and legislated some "rights" for NADD based on some imagined wrongs. NADD had suffered no material harm, and as such they have no legal standing to demand redress in court. The High Court judge essentially abrogated IEC's constitutional authority to register voters, a means which is in tandem with an electoral population that is not static but in a state of constant flux.
Now your argument demonstrates that since the constitution allows higher courts to exercise judicial review over lower courts; and since the courts have the sole responsibility of interpreting the manifest tenor of the constitution then by extension they also have the power to police the constitutional powers of the other branches of government. I will argue that such an argument is regressive ad absurdum. One may also rightly ask who then polices the Supreme Court since they are not elected by the people in the first place...?
Such a question shall inevitably lead us to reexamine the very structure of the republican form of government in the Gambia which is constituted on a central premise of checks and balances. The inherent flaw in your "high school government classes" is a presupposed architectonic structure of the rule of law in a democracy. The Supreme Court is not the supreme branch of government, and its relationship with the other branches of government is not hierarchical but rhizomatic ( a balance of power amongst equals in a level playing field). However, the legislature is the first amongst equals in such an arrangement because they have the sole authority to make laws which must be interpreted based on their collective intent at the instance of legislation. This is why I argue that judicial activism which attempts to legislate from the bench by a progressive interpretation of the law (as suggested by Halifa Sallah) is a dangerous threat to democracy and the rule of law itself. The
National Assembly should stop this trend by all means before it becomes an institutionalized precedence.
Regards, and have a good day.
Ebou Jallow
Momodou Buharry Gassama <[log in to unmask]> wrote:
Hi Mr. Jallow,
As usual, interesting post. You wrote:
"The recent High Court decision that attempted to police the boundaries of
the constitutional powers of the IEC is both unwise and unwarranted. Nowhere
in the Gambian constitution does the constitution text structure generally
compel the other branches of government to accept any court's reading of the
constitution in the execution of their own constitutionally mandated
functions."
It is rather bold or completely foolhardy to make such a statement. The
danger inherent therein is that some people might be misled into believing
your pronouncements. It is therefore imperative that some light should be
shed on some of your assertions.
In defining the jurisdiction of the High Court, the Constitution states:
"132 (1) Save as provided in section 127, the High Court shall have original
jurisdiction -
(a) to hear and determine all civil and criminal proceedings;
(b) to interprete and enforce the fundamental rights and freedoms as
provided in sections 18 to 33 and section 36(5),
and in the exercise of such jurisdiction, the Court shall have
all such power and authority as may be conferred by this Constitution or any
other law.
(2) The High Court shall have such jurisdiction in appeals from
courts subordinate to it (other than the Cadi Court) as may be prescribed by
an Act
of the National Assembly.
133. The High Court shall have supervisory jurisdiction over all lower
courts and adjudicatory authorities in The Gambia, and, in the exercise of
its supervisory jurisdiction, shall have power to issue directions, orders
or writs, including habeas corpus, orders of certiorari, mandamus and
prohibition as it may consider appropriate for the purposes of enforcing its
supervisory powers."
Let us break this down and simplify it.
First, the High Court is the first instance for dealing with issues arising
out of the provisions in sections 132 and 133. That is why NADD didn't go to
the magistrate courts or the Supreme Court to seek redress.
Second, the High Court has the power to hear and determine all civil and
criminal cases and as such NADD's case falls within its purview.
Third, the High Court is empowered to deal with issues arising out of
sections 18 to 33 and section 36(5) that deal with the fundamental rights
including political rights. Section 25 (1) states: "every person shall have
the right to - ...
(e) freedom of association, which shall include freedom to form and join
associations and unions, including political parties and trade unions.
(f) freedom to petition the Executive for redress of grievances and to
resort to the Courts for the protection of his or her rights...."
In further dealing with political rights, Section 26 states: "every citizen
of The Gambia of full age and capacity shall have the right, without
unreasonable restrictions -
... (c) to have access, on general terms of equality, to public service in
The Gambia."
If NADD felt that the rights of its members to equal treatment were
undermined by the introduction of unlisted voters, it had the right to
petition the IEC and failing to get the desired result, to seek redress from
the High Court.
Fourth, the High Court is empowered to supervise all lower courts and all
adjudicatory authorities (authorities that make decisions or judgments) and
this includes the IEC because it makes judgments relative to election rules.
It also has the power to order or direct all such authorities to do certain
thigs where it feels that such is in conformity with the provisions of the
Constitution. So you see, your statement that it is not stated anywhere in
the Constitution that the courts can compel other branches of government to
accept their interpretation of the law is fallacious. In fact, such a
statement denotes a lack of understanding of how the branches of government
work. It is only the judicial system, i.e., the courts, that can make and
have the power to make judgments based on interpretation of the
Constitution. All the issues we have dealt with here just deal with the
powers of the High Court. The powers of the Supreme Court and other courts
have not even been touched. If we deal for example with the Supreme Court,
it is empowered by section 127 to have original jurisdiction to deal with
issues regarding interpretation and enforcement of all the provisions of the
Constitution save those dealing with fundamental rights, determine whether
any law was made by any authority in excess of the powers conferred on it,
determine whether any person was validly elected as President or National
Assembly member or whether he or she vacated his or her seat therin etc.
You wrote:
"Each branch of government i.e, the NA, Executive and Judiciary must
interpret the constitution for itself in the course of performing its own
duties. "
A high school government class teaches that the legislature makes law, the
executive enforces the laws and the judiciary interpretes the law. You are
calling for complete chaos if all branches of goverment interprete the law
as they see fit. How can laymen without legal training be charged with
interpreting the Constitution? Thanks and have a good day.
Buharry.
----- Original Message -----
From: "Ebou Jallow"
To:
Sent: Sunday, October 02, 2005 9:51 PM
Subject: A Constitutional Amendment to Stop Judicial Activism
> The Judiciary including the Gambian Supreme Court is not the supreme
> branch of government, and that is why the nation-state has the title of
> "The Republic of The Gambia". A republic has a system of checks and
> balances in order to guarantee against the follies and the tyranny of
> democracy. The National Association of the Desperate and Dysfunctional is
> currently pushing the envelope with frivolous lawsuits in order to secure
> rights not expressed in the Gambian constitution. This can only lead to
> the courts transcending the boundaries of their constitutional limits into
> a murky world of judicial activism. The recent High Court decision that
> attempted to police the boundaries of the constitutional powers of the IEC
> is both unwise and unwarranted. Nowhere in the Gambian constitution does
> the constitution text structure generally compel the other branches of
> government to accept any court's reading of the constitution in the
> execution of their own constitutionally mandated functions.
> Each branch of government i.e, the NA, Executive and Judiciary must
> interpret the constitution for itself in the course of performing its own
> duties. The courts must determine the constitutionality of the statutes
> that they interpret and apply on cases properly brought to them. The
> recent Judge's decision to rule in favor of NADD's imagined wrong is
> simply a very wrong-headed approach in administering justice before the
> law. The decision has done much harm to over 2500 Gambian voters that have
> been disenfranchised. The President and the APRC need to take an
> appropriate legal action on that regard.
>
> As such I would recommend a constitutional amendment to allow the National
> Assembly to override judicial decisions in the future, and arrest this
> never ending frivolous lawsuits from NADD.
>
> Ebou Jallow
>
>
>
> ---------------------------------
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