The role of the judiciary in holding the executive within the limits of law
Alex Kezerashvili
For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other ’ – Thomas Paine
The judiciary has long been seen as one of the main sources of checks and balances on governments, in order to prevent the executive from overstepping their power and the limits of law. Although this is the common conception and view of the judiciary, their ability to perform this function is not consistent in every country or state. In liberal democracies like the UK, the political and legal systems allow the judiciary to thrive and successfully make sure the government is held accountable, while in authoritarian countries like Russia, the role of the judiciary is extremely limited. This has been emphasized in the last two years, in which both countries have gone through periods where the governments have tried to use their power in order to extend their influence in what have become very publicized cases. However, in the democratic country, the judiciary managed to prevent the government from transgressing the bounds of law, whilst in Russia, this was not the case. This variation comes as a result of the way the judicial systems are structured, and the extent to which the judiciaries of the two countries are independent. Thus, although the judiciary must play a very significant role in holding the executive accountable to the law, its success depends on its freedom and independence. Perhaps the easiest way to approach answering the question at hand is to look at recent court cases involving governments. The most famous of these was in September 2019, when a UK citizen, Gina Miller, sought legal action against Prime Minister Boris Johnson and the UK government, claiming that their decision to prorogue Parliament was unlawful. Prorogation of Parliament means stopping the ongoing Parliamentary session without dissolving the Parliament altogether. Prorogation is ended and the new Parliamentary session is restarted by a Queen’s speech during State Opening of Parliament. Boris Johnson advised the Queen to prorogue Parliament for five weeks, essentially in order to prevent MPs frompassing a Bill whichwould stop a no-deal Brexit. The case was heard by the UK Supreme Court in September 2019 and all Justices unanimously ruled that the advice given by the Prime Minister to the Queen to prorogue Parliament was unlawful ‘ because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification ’ . 1 . The constitutional principles undermined by prorogation according to the Supreme Court justices are parliamentary sovereignty and parliamentary accountability. Sovereigntymeans that laws made by the Parliament are universal and should be followed by all without exception. The principle of sovereignty would, according to Supreme Court justices, ‘ be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased ’ 1 . Another constitutional principle undermined by the prorogation was that of parliamentary accountability as, in the words of Lord Bingham, senior Law Lord, ‘ the conduct of government by a Prime Minister and Cabinet collectively responsible and accountable to Parliament lies at the heart of Westminster democracy ’ . 1 Thus, the ruling of the UK Supreme Court on this case was based on the fact that ‘ the power to prorogue Parliament is limited by the constitutional principles with which it would
1 https://www.supremecourt.uk/cases/docs/uksc-2019-0192-summary.pdf.
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