The role of CCJ in new democratic governance - Part 2
Published: Sunday | November 22, 2009
Justice Beverly McLachlin, chief justice of the Supreme Court of Canada, in an address in New Zealand in 2004, said: "Interpreting and applying constitutional principles, written and unwritten, requires that the judge hold uncompromisingly to his or her judicial conscience, informed by past legal usage, written constitutional norms and international principles to which the nation has attorned. But judicial conscience is not to be confused with personal conscience. Judicial conscience is founded on the judge's sworn commitment to uphold the rule of law. It is informed not by the judge's personal views, nor the judge's views as to what policy is best. It is informed by the law, in all its complex majesty, as manifested in the three sources I've suggested."
Justice McLachlin is advocating the use of the right tools, an analytical and discovery approach, not an emotional clap of the bosom to invoke the right personal responses. It is an approach we have endorsed, giving respect to the objective majesty of the law, and one which did not envisage an agenda for the courts, or a need for a supportive constituency base.
Justice Saunders may well be right, that this is the kind of loose and unfettered role which our current democratic form of governance needs and which we should confer on the supreme court of the CCJ. However, now that we know his thinking, we should look long and hard before we leap.
I may be wrong, but as I understand Justice Saunders, the CCJ, as the Supreme Court, is an agenda-driven institution, capable of formulating policy and creating law without any corresponding checks and balances and, therefore, is in need of a constituency base to pinch-hit for it when it runs into trouble with the populace. The constituency which he looks to pinch-hit for is the legal profession.
Having carved out the CCJ's policy-making and legislative activities, Justice Saunders outlines 'the role of the Bar as defender of the integrity of the court and justice system': "The difficulty that courts experience when they must determine important matters of policy is that they are called upon to do so without the conventional political resources that are readily available to the other branches of government. . We have no party apparatus to call on for guidance and encouragement, no political organisation ready and equipped to go out and drum up support for the decisions that we must make, nor party machine that can be activated to defend the court from unjustified attacks.
"Yet no institution in a democratic society could become and remain potent unless it can count on a solid block of public opinion that would rally at a pinch. If the integrity of the CCJ is to be maintained at a high level, the court should be able, at all times, to command support and receive encouragement from what should comprise its natural constituency.
"That natural constituency is, of course, the legal profession. It is you, the legal fraternity, upon whom the CCJ must rely to stand up for the right of the court to make the choices we are called upon to make."
Bearing in mind that, for Justice Saunders, the choices are personal, the CCJ would be an unelected politician dressed in judicial robes, with a specialised unthinking constituency base, unconnected to the general population, focused only on the monstrance of upholding the judiciary, right or wrong. The legal profession would become drones, hovering over the CCJ to protect its law-creating power, rooted in personal choices and not guided by judicial conscience.
In this regard, I reflect upon the observations of Justice Rosalie Silberman Abella of the Supreme Court of Canada, then Justice of the Court of Appeal for Ontario, given on August 7, 2000 at Osgood Hall:
"While all branches of government are responsible for the delivery of justice, they respond to different imperatives. Legislators, our elected proxies, consult constituents, fellow parliamentarians and available research until the public's opinions are sufficiently digestible to be swallowed by a parliamentary majority. And if they cannot be made sufficiently palatable, they are starved for want of political nourishment.
"This is the dilemma all legislators face - they are elected to implement the public will, the public will is often difficult to ascertain or implement, and they are therefore left to implement only those constituency concerns which can survive the gauntlet of the prevailing partisan ideology. At the end of any given parliamentary session, many public concerns lay scattered of necessity on the cutting room floor, awaiting either wider public endorsement or a newly elected partisan ideology.
"The judiciary has a different relationship with the public. It is accountable less to the public's opinions and more to the public interest. It discharges that accountability by being principled, independent and impartial. Of all the public institutions responsible for delivering justice, the judiciary is the only one for whom justice is the exclusive mandate.
"This means that while legislatures respond of necessity of the urgings of the public, however we define it, judges, on the other hand, serve only justice. As Lillian Hellman once said: "I will not cut my conscience to fit this year's fashions." This means that the occasional judgment will collide with some public expectations, which will inevitably create controversy. But judgments which are controversial are not, thereby, illegitimate or undemocratic. They are, in fact, democracy at work .
"What of the role of public opinion? Should judges really transcend these views as they discharge their duties? Probably. Should they be aware of them anyway? Certainly. But first, we have to think about what public opinion really means and why it does not guide the courts the way it does legislatures."
Judges of the Supreme Court should not be afraid of criticism, especially by those best informed to criticise and filter the adjudication process to the population. It is part of the accountability process.
If we muzzle those best equipped to afford this corrective balance, then we fall on a slippery slope until chaos halts the fall at the bottom of the slope.
This is a central issue of the debate on the acceptance of the CCJ as the final appellate court, and the time is critical when we are considering constitutional reform. How will the CCJ be translated into our constitutions and what will be the scope of its powers?
It seems to me that we should be considering and devising constitutional limitations upon the power of the CCJ to convert itself into a supreme and unlimited law-making body. This is a matter for the dynamics of any new constitution of the respective nation states.
If the law-making power of Parliament is constitutionally limited in a constitutional democracy, the CCJ's power to review the laws passed by parliament should also be subject to limitations. That is what balance amounts to and requires.
Like the legislature and the executive, the judiciary derives its powers from the constitution of the individual nation state. Judges are equally subject to the constitution. They can interpret and invalidate laws, declare them to be valid or unconstitutional, void and of no effect but they cannot be allowed to assume the law-making function.
Since we have been put on notice, this needs to be addressed in our new constitutional arrangements and governance before we receive the CCJ as our supreme court.
The legal profession should lead on this aspect of the debate. Their ultimate constituency is the people and their compass the core values which our societies have embraced in a balanced constitutional arrangement where no branch of governance responsibility over-reaches the other, but rather treats the other with respect within the constitutional boundaries, restraints and strictures.