RECENTLY passed laws which restrict fundamental liberties have either limited the Court's discretion, or completely removed the Court's jurisdiction.
The Prevention of Terrorism Act passed by Parliament earlier this year circumvents the role of judiciary by providing for detention without trial. This means that the person accused of committing a terrorist act need not be charged in Court for him to be detained under the Act.
There is even a provision in Pota stating that any decision of the Prevention of Terrorism Board (the body empowered to issue detention orders under PoTA) cannot be judicially reviewed by the Courts. This means that those aggrieved by any decision of the Board have no recourse through the Courts, unless it relates to non-compliance of procedure.
Meanwhile, the recent amendments to the Sedition Act have significantly removed the discretion of the Courts in meting out sentences for offences under the Act. There is now a minimum prison sentence of three years for every sedition offence and the Courts can no longer impose fines on offenders as punishment.
The ouster of judicial scrutiny and discretion is not new.
Our Parliament has a history of enacting laws with “ouster clauses” – provisions in the legislation which ousts the jurisdiction of the Courts completely. It is even more unfortunate that our Courts have thus far upheld these clauses as valid.
But in Pota and the amendments to the Sedition Act, in the Prevention of Crime Act passed before this and proposed amendments to the Criminal Procedure Code, we are definitely seeing a trend.
According to the doctrine of separation of powers, power in a State resides in three separate and independent bodies – the legislature that enacts laws, the executive that implements and executes laws, and the judiciary that interprets laws.
This three organs of the State each have their own functions and responsibilities. Their powers are limited and they act as a check and balance mechanism to each other. This ensures that the institutions act in accordance with their constitutional roles, and do not abuse their power. None of these bodies have absolute power.
Within this framework, one of the most important functions of the judiciary is to uphold the constitution. Only the judiciary is mandated to interpret the constitution and to decide whether laws enacted by the legislative assembly or actions by the Government adhere to the constitution and are valid. The judiciary may also review any excesses by other state bodies to uphold the fundamental liberties of citizens.
The judiciary is the last bastion of fundamental liberties, the wall between the citizen and the excesses of the State. If a person’s rights are violated by the Government, the judiciary is responsible to ensure that the person has an avenue to enforce his or her rights.
This is one the reasons why laws such as Pota and the amended Sedition Act are at odds with democracy, the rule of law and the constitutional framework of our country.
When judicial scrutiny is ousted and judicial discretion is limited, the ability of the courts to uphold the constitution and to provide redress for those aggrieved by the State is severely curtailed. The judiciary will not be able to perform its constitutionally mandated role.
When the government tabled these laws in Parliament, it was asked as to the reasons for removing judicial scrutiny and discretion. It has yet to provide any satisfactory answers to this question.
We should not allow for power be taken away from the judiciary. Yes, the laws have been passed and it is only a matter of time before they come into force. But that does not mean that all hope is lost. We must continue to push for the government to respect and uphold the role of the courts in our constitutional framework.> The views expressed are entirely the writer’s own.