A
Lecture by Justice H. Suresh*
Why Do We Need a Supreme Court?
When we think of an
“appeals court,” we do not automatically think of a supreme court. There can
be appeal courts other than a supreme court. In America, there is a three tier
system of courts, a trial, an appeal and a supreme court. But the supreme court in both the United States and India
function as both constitutional courts and as courts of final appeal.
The need for a supreme
court arises from the separation of powers. The role of the supreme court is to
deal with conflicts between a people and their government that arise in the
process of ruling. This power of the court, to resolve conflicts between the
people and the government by legal interpretation, is the “rule of law.” The
basic concept of the “rule of man”, as opposed to the rule of law, is that
there is no such separation, and that the person who makes the law, the
government, also interprets it.
Constitutional
questions arise in the conflictive situations, that is, when there are conflicts
between the State and the people. When there is such a conflict, who is there to
decide? If it is the government that is allowed to decide, then it is one of the
interested parties out of the two that is allowed to decide.
A constitution is
expected to set out the organisational principles of society. When the State
makes law it has to ensure that the laws it seeks to pass are not in conflict
with the organisational principles of the society that laid down in the
constitution. The belief of the lawmaker that such law is not in conflict with
the constitution is subjective. Some authority must judge the law’s
constitutionality. (This also applies to the government decisions as well as
actions.) It is the supreme court that has the duty to do this. In socialist
countries there is no such separation of powers. This is a fundamental
difference between a liberal democracy and a socialist state.
The State has the
ultimate power to amend the constitution in the appropriate manner prescribed by
the constitution.
In Cambodia, the
Constitution has made provision for a Supreme Court and a Constitutional
Council. The powers of the Constitutional Council are limited. It could look
into the constitutionality of a law before (Article 121) or after its
promulgation (Article 122). Though it can also decide on the constitutionality
of government decisions, no provision has been made as how to do it. As under
Article 139, laws that existed prior to the Constitution continue to exist
unless they are contrary to the spirit of the Constitution. The UNTAC law on
criminal procedure and the SoC law (February 1993) regarding the organisation of
the judiciary may be considered as operative. The UNTAC law recognises the power
of the Supreme Court for judicial review.
One basic problem that
arises is that in post-Pol-Pot Cambodia, the Supreme Court that existed was a
socialist court and not one that recognised the liberal democracy. Since this
court continues to exist after the promulgation of the new Constitution, it may
be presumed that it functions under the new Constitution, which has laid down
the basic organisational principle of the Cambodian society is a liberal
democracy. From this one may conclude that the Supreme Court is obliged to
repudiate its former mandate under a socialist set-up, and that it is required
to function on the basis of liberal democratic principles.
On this basis of
functioning under the basic organisation principle laid down in the
Constitution, the Supreme Court is under obligation to provide remedy to the
people relating to matters arising from conflicts with the State. The principle
that where there is a right there must be a remedy applies. Therefore, the
Supreme Court of Cambodia has the following obligations:
1. To provide for public hearings on
petitions made by the people. This implies that it is under obligation to
entertain public petitions. The King as the guarantor of the Constitution is
under constitutional duty to ensure such public hearings.
2.
When entertaining the public petitions the Court must act according to the
principles recognised for such hearings.
* High Court Judge, Bombay, India (Retired)
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