By DARLINGTON CHILUBA
WHEN law becomes a service to self, it immediately ceases to command the authority of consent from those it is meant to serve. Consequently, having a disconnected judicial system can be dangerous and regressive to the nation.
This is why constitutions and legal texts in general partly anchor on two seemingly simple tenets, namely, the presumption of innocence and guarantee of judicial independence.
The first is a presumption of fair and equal trial before the courts while the second affirms an absence of conflict by the judiciary in its operations.
These two principles are both a declaration of intent by the judiciary as they are of self-exoneration.
For record, the previous two articles briefly compared sovereignty and executive power of selected countries as held in their respective constitutions.
This third part will restrict itself to the comparison of judicial authority insofar as the foundational power of that respective judicial system refers. Saudi Arabia, Kenya, Japan, the United States of America (USA) and Zambia are compared.
- Saudi Arabia’s constitution in Article 44 asserts that ‘The powers of the State shall comprise: The Judicial Power, The Executive Power and The Organisational Power… The King is the ultimate source of all these authorities.’ Article 44 continues that ‘In discharging their duties, the judges bow to no authority other than that of Islamic Shari’ah.’
- In Kenya, Chapter 10 in Part 1 of Article 159 reads ‘Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.’ This is near identical to Zambia.
- In Japan, Article 76 of Chapter 7 affirms that ‘The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.’
- In the USA, Article III in Section 1 asserts that ‘the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ‘
The Japanese and Saudi Arabian constitutions interestingly both derive judicial authority from the Monarch (Emperor and King respectively). The Emperor appoints the Chief Judge of the Supreme Court in Japan while the King is the ultimate authority in Saudi Arabia.
However, the operation and execution of judicial authority varies because in Saudi Arabia, religion (Islam) becomes the standard by which justice is measured and rendered.
In Japan, a convergence of traditional and modernity take on how that power is translated and exercised.
The advantage with the Saudi Arabian text is that it avoids ambiguity because the constitution is the Holy Qur’an and the Prophet’s traditions.
Islam is the national religion and, in theory, it dilutes the complications of infusing multiple belief systems into the Constitution. Like any system, there will be disadvantages, particularly for someone not of that religion or nationality.
The constitution of Kenya and Zambia are near identical in certain areas, especially around executive, judicial and legislative power. They both aver that people are the source of such stately power, elective and appointed.
The downside could be that, from a political standpoint, it could create politics of slogans and pageantry than that of solutions and honesty.
If people’s emotions are riled and enraged, history has shown the propensity to undermine current laws and replace them with “friendlier” laws that achieve political than judicial ends.
The result could be a judiciary or legislature that responds to pressure from their political benefactors and public opinion than the principles of governance.
The American system is consistent in its institutional posture and the impression that law is impersonal and distant from any one group of people. In short, the advantage of having such an impersonal system is that it is meant to treat everyone equally and indifferently.
It is the classic case of the law is blind (to subjectivism or favouritism of any kind). However, the civil rights movement, racial tensions and other domestic matters have tested the US legal system and proved that laws often resemble those who draft them. That even a seemingly impersonal law can create outsiders.
Whether of institutional, royal or public authority, judicial authority cannot be free from criticism or indeed error.
If a race of people can be deliberately disadvantaged by manipulating the text of law, apartheid South Africa, for instance, then it is possible to do the same against people of a given region, tribe or religion. No country, even Zambia, is excluded from this weakness in the law.
Thus, some countries allow for the election of judges for a given tenure of office and a clear path of removal of judges perceived incompetent.
Of judicial authority we can posit this as an attempt to conclude: that the best is to serve diligently, and most diligently, for country than self-service; for posterity than personal legacy; for the land and the glory of its people than for personal enemies. It is a tough balance, but doable. For if judicial authority is as tough as it is transparent; if it is remedial and self-aware, it will win confidence.
Ends.
