By Henry Kyambalesa
02.03.2024
By and large, sovereign nations-states worldwide claim to be governed through three ‘independent’ organs or branches of government—that is, the law-making or legislative branch, the executive branch and the judicial branch. This, in the words of Farese, Kimbrell and Woloszyk (2009:125), “provides a system of checks and balances that prevents any one branch of government from becoming too powerful.”
1. The legislative branch of government in any given democratic country is generally composed of elected members. In some democracies, the executive President or Prime Minister is permitted to nominate a small number of citizens to join the legislative branch.
In this respect, it would be advisable for a country’s executive president or prime minister to fill Cabinet-level positions with individuals who are not elected Members of Parliament in order to provide for greater independence of the legislative and executive organs of government.
Besides, such a move can provide the executive president or prime minister with a larger pool of competent citizens from which he or she can constitute the Cabinet, afford aspirants for the top position in the executive branch enough time to identify potential ministerial appointees well before elections rather than waiting for elections of lawmakers to be concluded, as well as reduce the work overload on government officials who have to handle both ministerial and legislative functions.
2. The executive branch is essentially headed by an elected executive president or prime minister. (Note: Some countries’ constitutions provide for the executive president or prime minister to fill positions in his or her Cabinet with elected members of the legislative branch of government.)
3. The judicial branch is typically headed by an individual who is nominated by the executive president or prime minister, and who is ordinarily confirmed by members of the legislative branch of government. Besides, the individual serves as a member of the executive president’s or prime minister’s cabinet. As such, the judicial branch is clearly not an ‘independent’ organ of government.
In the United States, for example, the fallacious and questionable ‘independence’ of the head of the judicial branch of the Federal government has been questioned by Gambino (2019) in the following words: “William Barr: Is His Defense of Trump Paving the ‘Road to Tyranny’?”
Besides, the mythical ‘independence’ of the judicial branch of the Federal government in the country was somewhat bemoaned by the late U.S. Representative Elijah Cummings in April 2019, and by former U.S. House Speaker Nancy Pelosi and former Senate Minority Leader Chuck Schumer in the following words (CBS News, 2019 and Hains, 2019):
“Mr. [William] Barr is acting as the defense counsel for the president of the United States … [when] he’s supposed to be our lawyer, the people’s lawyer.”
And
“Attorney General [William] Barr’s regrettably partisan handling of the Mueller report … [has] resulted in a crisis of confidence in his independence and impartiality.”
The use of the words “your Justice Department” and “my Justice Department” in the following statements by George Stephanopoulos of ABC News and Beto O’Rourke, one of several Democratic Party presidential candidates, respectively, clearly demonstrate the fact that the judicial branch in the United States—and in all professed democratic countries worldwide as a matter of fact—is not ‘independent’ from the executive branch of government (ABC News, 2019):
Stephanopoulos:
“If … you win, if you become president in 2020, would you want your Justice Department to pursue charges against President Trump?”
O’Rourke:
“I would want my Justice Department … to follow the facts and the truth and to make sure at the end of the day that there is accountability and justice without [which] … American Democracy comes to a close.”
The following excerpt provides another obvious example of the potential for legislative and/or executive branches of a country’s national government to have undue influence on judicial decisions and the composition and operations of the judiciary (Democracy Now, 2020):
“Senate Majority Leader Mitch McConnell and other Republican senators [are reported as having been] … privately contacting conservative federal judges to urge them to retire, so they can be replaced [by other conservative judges] while Republicans still control the Senate and Trump is in the White House.”
Representative Pramila Jayapal, a U.S. Democratic Party member representing the State of Washington in the U.S. Congress is quoted by Shortell and Herb (2020) as having taunted William P. Barr, then U.S. Attorney General, during a Congressional hearing in the following words:
“There is a real discrepancy in how you react as the Attorney General, the top cop in this country, when white men with swastikas storm a government building with guns, there is no need for the President to ‘activate’ you, because they’re getting the President’s personal agenda done … [but] when Black people, and people of color protest police brutality, systemic racism and the President’s very own lack of response to those critical issues, then you forcibly remove them with armed federal officers, pepper bombs, because they are considered terrorists by the President.”
There is clearly a need for national leaders worldwide to seriously consider the prospect of subjecting prospective heads of the judicial branch of government to a popular vote by the citizenry in order to make elected heads accountable to the people, make them less vulnerable to the influences of politicians and ideologues, and make them ‘truly’ independent from the whims of the head of the executive branch.
And a country’s Supreme Court Justices, as well as special counsels, would ultimately need to be nominated or appointed by the elected head of the judicial branch and confirmed by the national legislative branch of government in order for them to be ‘independent’ and ‘impartial’ in the dispensation of justice.
The term of office of the elected head of the judicial branch should be analogous to that of the executive president or prime minister, and that of members of the legislative branch of the national government.
In the United States, for example, most States (at least 40 out of the country’s 50 States) elect their Attorneys General. And most municipalities in the country elect their Sheriffs. The country’s Attorney General, as noted earlier, is appointed by the President and confirmed by the U.S. Senate.
One wonders why the U.S. Congress and all other legislative organs of democratic governments worldwide cannot consider the prospect of subjecting aspirants for the position of Attorney General to a popular vote by the electorate!
Bibliography
CBS News, “Transcript: Rep. Elijah Cummings on ‘Face the Nation’,”
https://www.cbsnews.com/, April 21, 2019.
Democracy Now, “Mitch McConnell Urging Conservative Judges to Retire While GOP Still Holds Senate & Presidency,”
https://www.democracynow.org/, March 17, 2020.
Farese, Lois S., Kimbrell, Grady and Woloszyk, Carl A., Marketing Essentials (Woodland Hills, CA: Glencoe / McGraw-Hill, 2009).
Gambino, Lauren, “William Barr: Is His Defense of Trump Paving the ‘Road to Tyranny’?” The Guardian:
https://www.theguardian.com/, May 4, 2019.
Kyambalesa, Henry, The Size and Functions of Government (Lambert Academic Publishing, 2022), pp. 353–357.
Pelosi, Nancy and Schumer, Chuck, quoted in Hains, Tim, “Attorney General Bill Barr Press Conference on Final Mueller Report,” Real Clear Politics:
https://www.realclearpolitics.com/, April 18, 2019. (The “Mueller Report” was the final report of a U.S. counterintelligence investigation of the alleged Russian government’s efforts to interfere in the 2016 U.S. presidential election headed by Special Counsel Robert Mueller.)
Shortell, David and Herb, Jeremy, “Barr Clashes with Democrats over Policing and Roger Stone Sentencing at Fiery Hill Hearing,” CNN:
https://www.cnn.com/, July 28, 2020.
Stephanopoulos, George and O’Rourke, Beto, quoted by ABC News, “‘This Week’ Transcript 6-9-19: Beto O’Rourke,”
https://abcnews.go.com/, Jun 9, 2019.