The Judiciary’s hermeneutical power

In the aftermath of the PNC attempted rigging of the 2020 General Elections, two academics from UWI who were part of the team of Caricom observers introduced the term “judicialization of politics” into our everyday vocabulary. They were referring to the inability or unwillingness of the political class within the institutions of the Executive and Legislature to resolve their inevitable differences and consequently taking ever increasing recourse to the third leg of governance – the judiciary, who are acknowledged as arbiters of the constitution by which all institutions must be legitimized. The process has continued apace and bears examination since a constitutional crisis seemingly always looms when one party or the other seeks judicial intervention.
We should note that the cause of the increasing judicialization of our politics does not lie in any particular evil or misguided individuals or institutions but rather in the structure of the modern constitutional state itself. This envisages and creates a contradictory relationship among the judiciary, the legislature and executive. It is this contradictory relationship underlying our constitutional structure/scheme which creates the possibilities of constitutional conflict, depending on specific historical circumstances, and which constitutional conflict sometimes leads to constitutional deadlock and breakdown. The point is to understand the distinction between constitutional contradictions, constitutional conflict and constitutional deadlock and breakdown because constitutional contradictions are a constitutional requirement, constitutional conflict is an un-avoidable constitutional condition but constitutional deadlock and breakdown is, most of the times, an avoidable historical phenomena.
Our constitutional structure does not envisage a “relationship of reconciliation or harmony” among institutions. Judiciary’s institutional relationship with the executive or legislature is such that the judiciary has been appointed as the legal and constitutional adjudicator — to decide disputes between the legislature, executive and citizens and also to police the constitutional violations by them. In other words, it is the judiciary’s role and duty to tell the legislature and executive about their legal or constitutional violations and, if necessary, to restrain them from further violating the constitution.
Clearly, this relationship has to be anything but contradictory. In addition to this institutional power, the judiciary has been conceded custody (monopoly of interpretation) of the constitution. The constitution becomes what the Supreme Court says it is. The distinction between judicial interpretation and the constitution has disappeared and the judicial interpreters are more powerful than the constitution-makers. This is the hermeneutical power of the judiciary. It is not surprising, however, that the executive and legislature hackles may be raised when they are treated as constitutional novices and even told that the meaning of any law is not what they (as far as subordinate legislation is concerned) intended it to mean but rather what the judiciary interprets it to mean.
These institutional and hermeneutical powers of the judiciary are supposed to be constitutionally safeguarded through the constitutionally mandated powers shared between the political class and the Judicial Services Commission. This is structural power of the judiciary. In short, this contradictory relationship between the judiciary and the legislature or executive is a constitutional good and requirement. But this also creates the contradictory pitch on which conflicting political matches are played out. We see this playing out in the inability to have permanent Chancellors and Chief Justices appointed under the present dispensation.
But, as in life, not all contradictions should become conflicts. Contradictions become conflicts because of historical circumstances and strategic moves by the persons involved. The political elites are conscious of the abovementioned enormous power of the judicial organs and the threat it poses to its untrammeled rule. But the judicial organs are also equally conscious of its enormous power and also its limitations. It is this interaction based on fear and potential which gives rise to judicial abdication or judicial defiance or judicial defection. Like the ruling elite, judges and courts also engage in strategic behaviour of judicial abdication, defiance or defection, depending on the constitutional and political space available to them at a particular period of time, in order to increase and preserve their judicial power.