The Politicization of Judges through the Judicialization of Rights
Sarajevo School of Science and Technology
Bosnia and Herzegovina
“ Judicial review is a court’s power to review, and possibly nullify, laws and governmental acts that violate the constitution and higher norms. It is a way to assure that governmental actors respect the constitution and do not use powers granted to them by the constitution to seize illegitimate power. Judicial review is generally the final word by a governmental institution on a law’s validity“. (Huq, p.g.1)
The Supreme Court has been established through the separation of powers in the government. Judges of that court are primarily responsible for the interpretation of rules, laws and rights which are defined by the constitution of each government. It was supposed to give the judicial court independence from the other two branches of government in order to protect them from the abuse of power which would influence them in a manner that would hamper the idea of the protection of right of people, especially minorities, from the government.
The question is whether the judges are politicised through the process of the judicialization of the rights, as they are one separate part of the government; how does the power of the government circulate? Do judges get political power through this process, and should judges, according to that make political decisions?
Answers to these questions provided on the basis of the initial idea of the judicialization of rights would suggest that judges should not make decision on political grounds, but make decisions simply through the interpretation of the constitution (what is also a topic for debate because of the two approaches of the interpretation of the constitution), which was established in order to protect the rights of people. Judges should, therefore, be independent from the other branches, and have power in a sense that they inform the other branches and the people whether rights were harmed or protected when there is a need of their interference. They should be protected from interference from the other two branches and show no political affiliation in their work. It is necessary to say that the Supreme Court has no real power to interfere; they have no force to do so, and are as that, as it is stated by Thomas Jefferson, regarded as the most harmless and helpless of all organs of the government.
There have been different thoughts about the judicial review; some are in favor of it, others are rather skeptical. In the next few paragraphs, I will present some views of Alexander Hamilton, Hirschl and Thomas Jefferson regarding the judicial review itself. After that I will reflect on the rule of law and different approaches to it, in addition to the case of interpretation of the constitutions, which I regard as important for anyone who deals with the judiciary, because they might influence the statement upon judges as political actors.
Alexander Hamilton was one of those who supported the judicial review, for what his work in the Federalist No.78 was probably one of the most known writings about the judicial review. By examining the different departments of power, he says, the judiciary is the least dangerous to the political rights of the Constitution. In comparison to the executive and the legislative, the judiciary has no power to pursue, or influence rules: “It may be truly said to have neither force nor will, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments” (p.g 201).
Another thing which Hamilton mentions is that only judges have sufficient training to able to explain the Constitution; they are not elected but appointed on the criteria of merit. They should be bound by strict rules and precedents in order to avoid their arbitrary discretion; an important fact is that there is a need of long study and training in order to be competent to seek the necessary knowledge for the understanding of the meanings of the constitution and the respecting of the given rules which they are bound to. There are only a few men in the society who can accomplish these criteria they will be given the position of the judicial court.
Because of the importance of their position they should be separated from the executive and the legislative, to avoid any impact from outside that would lead the judges in a wrong way, hence they have no real power they should be supported in their decision making, because their duty is to preserve the rights given by the Constitution. They have, therefore no real reason for seeking political power and the existence of the judicial review is in this regard one of the most important things which should be kept in order to preserve the rights of people.
Hirschl explored some hypocritical facts behind the idea of the judicial review and presented as well some existing examples which prove his statement. He sees the judicial review in a way as a whole institutionalized way implemented by political and economic elites in order to preserve their power. In a way, it is a very hypocritical way he explained. The idea is here that the abuse of power is prevented by ht e separation of powers, for what the judicial part is, initially regarded as the least powerful and least harmful, as it does not have any means of force to pursue their decisions.
- Quote paper
- Aida Hadzic (Author), 2010, Politicisation of Judges in the United States of America, Munich, GRIN Verlag, https://www.grin.com/document/311197