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Ruling by UK Judges that laws should be made by Parliament and not courts is interesting

OPINION
By David Oginde | May 1st 2022 | 3 min read
By David Oginde | May 1st 2022
OPINION

According to UK Judges laws should be made by Parliament 

A few weeks back, I wondered in this space whether the courts possess a legislative mandate.

The concern stemmed from a growing trend in many democracies, including Kenya, where courts have adopted the practice of “interpreting” the Constitution or applying the law in a manner that sets fundamentally new legal direction in critical matters. In some situations, such interpretations and rulings seem to alter or go against the expressed values and ethos of the people. The question, therefore, is whether such precedent setting interpretations should not be taken to the people, either directly in a referendum or through their elected representatives in Parliament.

Interestingly, as if in response to my wonder, a Privy Council Judge, Lady Arden of Heswall England, just about a month ago – on 25 March 2022 – argued that the task of making laws belongs to Parliaments and not the courts. The learned Judge was speaking as a distinguished guest of the Grand Court in Cayman Islands, a self-governing British Overseas Territory in the western Caribbean Sea. 

In her lecture, titled ‘Taking stock of recent jurisprudence of the Judicial Committee of the Privy Council’, Lady Arden warned that if the courts were allowed to make legislation, “the law could become a judge’s plaything” which could result in undermining the will of Parliament and of the people. The import of this is huge – especially coming from the Privy Council.

The Privy Council is regarded as the final court of appeal, throughout England and Wales and several Overseas Territories. Its primary role is to hear complex cases on issues of how the law across each jurisdiction is to be interpreted, by providing an objective review of cases. Lady Arden had been part of a panel of UK judges siting in the Privy Council who ruled last month that Cayman’s Constitution does not provide a right for same-sex marriage. However, in the recent lecture, she reasoned that a same-sex marriage law was still a possibility for the Cayman Islands “so long as it was brought about by the legislature and not by a judge.” As she argued, it is for legislators, not judges, to create laws.

Granted, in most cases, courts do not go out of their way to create laws. However, two factors have contributed significantly to this trend of judicial “law making”. First is a trend generally known as judicial activism. Judges with particular social personations take up controversial cases and make rulings in line with their worldviews – often to perpetuate an agenda. Once such rulings have been made, the second factor kicks in – precedent.

According to the principle of precedence, a court decision automatically becomes an example or authority for judges deciding similar issues later. Furthermore, in some jurisdictions, decisions of higher courts become mandatory precedents on lower courts. This effectively means that once a judge – especially of a higher court – has made a decision, that decision effectively becomes law, binding on any future rulings on similar cases.

Looked at through the prism of societal norms and values, it then becomes obvious why the ruling by the panel of judges in the Privy Council was profoundly significant. It is the only way to build the trust in the judiciary. Because, in places like the USA and parts of Europe where the judges have taken up the task of legislation, the courts have become extremely politicised.

In the US for example, because of the ideological differences between the Republicans and the Democrats, the appointment of judges is a hotly contested affair. Various interest groups literally fight to have friendly judges appointed into strategic positions in the judiciary, ostensibly to advance their agenda through appropriate rulings.

This is unfortunate because judges are supposed to be politically non-partisan and expected to maintain the highest levels of objectivity in hearing and determining cases. Yet, when one gets into office with personal biases and external expectations as to how they should decide cases that come before them, then it all becomes a travesty of justice. 

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