Barrister Roman Awan
Should the Supreme Court Strike Down the Legislation of Parliament?
This complex and controversial question has been debated by legal scholars, politicians, and judges for centuries. There is no definitive answer, but I will provide some arguments for and against the power of the Supreme Court to strike down the legislation of Parliament.
One argument for the power of the Supreme Court to strike down the legislation of Parliament is based on the principle of constitutional supremacy. According to this view, the Constitution is the supreme law of the land, and any law that contradicts it is invalid. The Supreme Court, as the guardian and interpreter of the Constitution, has the duty and authority to ensure that the laws passed by Parliament are consistent with the constitutional principles and rights. This power of judicial review is seen as a necessary check and balance of the legislative and executive branches, especially in a federation, which may abuse their power or act against the public interest.
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The Supreme Court can protect the rights and freedoms of individuals and minorities from being violated by the majority or by arbitrary decisions. This argument is based on the US model of constitutionalism, where the Supreme Court has the power to strike down any law or other action by the legislative or executive branch that violates the Constitution.
Another argument for the power of the Supreme Court to strike down the legislation of Parliament is based on the principle of human rights. According to this view, certain universal and inalienable rights belong to every human being, regardless of their nationality, religion, ethnicity, gender, or any other characteristic. These rights are recognized and protected by international treaties and conventions, such as the European Convention on Human Rights (ECHR), which are binding on the states that have ratified them. The Supreme Court, as the highest judicial authority in the country, has the responsibility and jurisdiction to ensure that the laws passed by Parliament are compatible with these human rights obligations.
The Supreme Court can strike down any law that infringes on these rights, even if it is supported by a democratic majority or by a sovereign Parliament. This power of judicial review is seen as a safeguard for human dignity and justice, as well as a way of promoting international cooperation and peace. This argument is based on the European model of constitutionalism, where the Supreme Court has to take account of decisions of the European Court of Human Rights (which sits in Strasbourg) when interpreting and applying human rights law.
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One argument against the power of the Supreme Court to strike down the legislation of Parliament is based on the principle of parliamentary sovereignty. According to this view, Parliament is the supreme law-making body in the country, and its will is expressed through its elected representatives. The Supreme Court, as an unelected and unaccountable institution, has no right or legitimacy to override or invalidate the laws passed by Parliament, which reflect the democratic will of the people. The power of judicial review is seen as an undemocratic and elitist interference with the political process, which may undermine the stability and efficiency of governance. The Supreme Court should respect and defer to the decisions of Parliament, which has more expertise and responsiveness to deal with complex and changing social issues. This argument is based on the British model of constitutionalism, where Parliament has traditionally been regarded as sovereign and supreme over all other branches of government.
Another argument against the power of the Supreme Court to strike down the legislation of Parliament is based on the principle of separation of powers. According to this view, there are three distinct and independent branches of government: legislative, executive, and judicial. Each branch has its own functions and responsibilities and should not interfere with or encroach on those of another branch. The power of judicial review is seen as a violation of this principle, as it allows the judicial branch to usurp or diminish the role of the legislative branch. The Supreme Court should not act as a super-legislature or a policy-maker but rather as a neutral arbiter of legal disputes. The power of judicial review may also create conflicts or tensions between the branches, which may harm the harmony and cooperation of governance. This argument is based on the French model of constitutionalism, where there is a clear distinction and separation between the ordinary courts (which apply the law) and the Constitutional Council (which reviews the constitutionality of laws before they are enacted).
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Lastly, if the Parliament or legislature makes a law, how can the judiciary interpret it when it has not made it? How can the judiciary measure the intent of the legislature? Therefore, there is a need to provide strict checks and balances so that the will of the people may not be compromised.
