CAN THE COURTS STOP THE ENACTMENT OF MORE THAN 70 BILLS BEFORE PARLIAMENT?
O’Brien Kaaba
Some of my students asked me this morning what I thought about the more than 70 Bills to be passed before Parliament dissolves in less than a week. They wanted to know if one went to court to stop the process, would it be possible for courts to legally stop the legislative process? Of course, I have no way of knowing in advance what the courts may decide. But here are my general thoughts on the debate.
It is doubtful if the Court should interfere with the legislative process prior to enactment of legislation. Anglophone judiciaries generally give two reasons for hesitancy or restraint from intervening in the pre-legislation disputes. The first is where judiciaries, in respect of the doctrine of separation of powers, let other branches perform their role without interference and wait to see if the requisite safeguards within the legislative process will hold. All countries with written constitutions have the doctrine of separation of powers, either explicitly stated or implied from the demarcation of the three branches of government. From this angle, it is argued that, although the courts have a role to enforce constitutional norms, this does not amount to directing the other branches how they should perform their functions, just the way the other two branches should not intervene with the judiciary and dictate how judges should make judicial decisions. The role of the judiciary is to CHECK and not to SUPERVISE the other branches of government.
The separation of powers doctrine divides governmental authority into three distinct branches, that is, Legislative (making laws), Executive (enforces laws) and the Judiciary (interprets laws), preventing power concentration and tyranny as championed by thinkers like Montesquieu and implemented by many democratic constitutions including ours. The legislature is responsible for making laws and the judiciary responsible for interpreting them. The constitutional Court’s role is to act as a check on the other branches, not to interfere in the legislative process which is governed by internal parliamentary regulations. The independence of parliament is guaranteed by the Constitution. This limits the judiciary’s involvement in the political process and ensures that the Court only rules on actual legal disputes that have been brought before it. The doctrine is aimed at preventing any one branch from taking over another’s duties. Each branch has separate powers and is generally not allowed to exercise the powers of the other branches.
For example, in the South African case of Doctors for Life International v The Speaker of the National Assembly and Others CCT12/05 [2006] ZACC11, the Constitutional Court had to determine if it had power to nullify a Bill which had not yet become law and also, assuming the Court had no such power, if it could provide declaratory relief where the legislature disregarded constitutional obligations in drafting a Bill, although not yet law. The Court held that it is more appropriate to review an Act of Parliament and not a Bill in order to respect the principle of separation of powers and to avoid prescribing to Parliament how it should perform its role. The Court further formulated the test to be used when to intervene or not intervene. It stated that intervention by the Court in the legislative process: “would only be appropriate if an applicant can show that there would be no effective remedy available…once the legislative process is complete, as the unlawful conduct will have achieved its object in the course of the process. The applicant must show that the resultant harm will be material and irreversible.”
The same approach was taken by the Kenyan Supreme Court in the case of Commission for Implementation of the Constitution v National Assembly of Kenya and 2 Others (2013) eKLR, when Lenaola JSC held: “Although this Court can stop Parliament on its tracks at this stage of the legislative process, there is one question that has lingered in my mind; since the Bill is incomplete and its language is yet to be settled, what then am I being asked to strike down? Had the petitioner waited until the same is passed and within thirty days before Presidential assent, this Court would have had something tangible to work with.
I am reluctant to pass a judgment on the hypothetical issues…I say so because the Bill may not receive the two-thirds majority required for it to pass and even if it does, there is time before it is assented to, for the petitioner or any Kenyan to seek that it should not be allowed to go beyond parliament, if it is obvious its content will ultimately be destructive of the structures of the Constitution. As it is, the Petition is premature….”
The second approach is where the courts consider that if a Bill has not been passed, it is premature to intervene as there is no binding decision or action that alters the rights of citizens. This approach relies on the concept of ripeness of a dispute. A dispute is not ripe as the supposed injury is only hypothetical and not yet crystallised.
At this stage, therefore, the court does not have jurisdiction to determine the constitutionality of a Bill (including pre-Bill conduct) prior to its passing because any potential dispute regarding the constitutionality of the Bill would not be “ripe” for adjudication. A Bill is not “ripe” until the Bill has been enacted and signed into law. This is what in the United States of America (USA) is called the “ripeness doctrine”.
The ripeness doctrine is part of the standing requirements for USA plaintiff’s, and obligates a plaintiff to have suffered an “actual injury” before the plaintiff can seek legal redress; since an unenacted law necessarily has not yet harmed a plaintiff, the plaintiff must wait until the law has been enacted and there is some degree of certainty that the plaintiff will be injured or the plaintiff must actually be injured before a plaintiff can sue.
In a USA case, Democratic Party v. Abbott (461 F. Supp. 3d 406; 2020 U.S. Distr.), the Court observed that subject matter jurisdiction goes to the heart of the court’s power to hear a case. In a Bill that is before the legislature, the court would be dealing with a proposed statute that has yet to be enacted and may never be enacted. “Ripeness” is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all.
In the 2022 case of Texas Democratic Party v Scott Civil Action no SA-20-CA-438-FB (2022), the defendants’ motion to dismiss was granted in part because the plaintiffs were alleging injuries based on laws that had not yet been enacted. In dismissing the matter, the Court held: “This Court declines to analyse policies and laws that have not been enacted or evaluate the pandemic in light of in-person voting in future elections, and plaintiffs have not identified any concrete harm based on future contingent events. Accordingly, these claims are unripe.”
Courts in a democracy are empowered to review the constitutionality of a statute. The grounds on which legislation can be declared unconstitutional are generally agreed to be the following: (a) the legislature may not have had the power to enact the impugned statute; (b) the statute might be found to breach one or more fundamental rights embodied in the constitution; (c) the statute may contravene any other justiciable provision of the constitution; and (d) the statute may be invalidated for having delegated an essential legislative function to the executive or another authority.
This, however, does not mean that the Courts have no power to review an enactment of parliament. Rather, it is about allowing the other branches of government to do their work first and then let the courts check if the work was done in line with the constitution. As the South African Constitutional Court stated in Doctors for Life, “The rights of the public are therefore delayed while the political process is underway. They are not taken away.” Judicial power is inherently a reactive power and not a proactive veto before a Bill becomes law.
What are your thoughts?