S.A 2020/21 B.E POLITICAL LAW

S.A 2020/21 B.E POLITICAL LAW | Question #5

- February 18, 2023

#PoliticalLaw #PreviousBarQuestions

Both the House of Representatives and the Senate passed a bill which: (a) increases the number of Supreme Court Justices from 15 to 20; (b) assigns the five most senior Justices, including the Chief Justice, exclusively to a Special Division that will tackle only constitutional cases; and (c) removes from the Supreme Court En Banc the power to hear and decide cases involving alleged violations of the Constitution.

The Chief Presidential Legal Counsel advises the President to veto the bill, arguing that the law is unconstitutional because its contents should be the subject of constitutional amendment rather than of legislation.

Is the Chief Presidential Legal Counsel's argument constitutionally sound? Explain briefly.

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SUGGESTED ANSWER:

The Presidential Legal Counsel’s advice is not exactly constitutionally sound. As to (a), the PLC is correct that this should be the subject of constitutional amendment rather than of legislation because the Constitution expressly provides that the Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices; therefore, increasing the number of Justices from 15 to 20 requires constitutional amendment. As to (b) and (c), however, the PLC is not exactly correct that these matters could be the subject of constitutional amendment because said provisions seek to disrupt the basic architecture of a democratic and republican form of government, which is founded on separation of powers and its corollary doctrine of checks and balances. This is obvious with respect to (b) and (c) of the bill which, if approved, would wreak havoc on the bedrock of checks and balances; thus, they could not be achieved through mere constitutional amendment.

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