Are Presidential Decrees the source of our law making in South Sudan?

BY: Bol Garang Bol, CANBERA, AUSTRALIA, MAY/24/2013, SSN;

The Country referred, as the Republic of South Sudan came into being under the agreement signed in 2005 between the former rebels (SPLM/SPLA) and the Sudan government. The document recognized as the Comprehensive Peace Agreement (CPA) established the current
Republic of South Sudan. The Transitional Constitution endowed the new republic with sovereignty. The question to address here is the process of law making in the Republic of South Sudan. Some may agree with me that law is the set of rules governing the society.

Laws are made by Parliament, or Act that may arise as the result of court decisions creating established principles. Therefore, in this case, the primary purpose of the law is to regulate the political, economic and social well-being of the society or country.

The process of law-making and the politics of the Republics of South Sudan are more confusing compared to, and how the other independent nations deal with law making process. Before I talk about the law making process in South Sudan, the government of the newly independence nation is and has been viewed as a Federal Presidential Republic.

According to the Interim Constitution of South Sudan, the President is the Head of State, the Commander in-Chief of the Armed forces and Chairman of the ruling party. The Transitional Constitution of South Sudan demoralizes the judiciary and the legislative powers. It vested all the powers to the President.

The President through his “Presidential Decrees” determines the basic direction of the South Sudan’s foreign and domestic’s policies and represent the state in foreign affairs. The President appoints Federal Cabinet Ministers with Presidential decrees
and this appointment of Cabinet Ministers is not subject to vetting.

The President has also powers to conduct international talks and sign treaties on behalf of the Republic. The Constitution authorized the President to chair meetings of the government, which he also may dismiss in its entirety.

Our constitution, I mean the South Sudan’s Constitution has no say about the President even if the President commits “grave crimes”. I wonder why the South Sudan Constitution gave less power to the legislature and empowered Presidential Decrees as the source of law making. The Presidential Decrees in my view are laws made by the President when there is no standing elected legislative body. For example, when the military took over government in a military coup or popular uprising, the legislative
powers were vested in the President.

The Republic of South Sudan has embraced Western style of law making and its government structure. The South Sudan’s Constitution written in a US style established Federal Assembly with two Chambers, the Low House and the State Council. The major source of law-making in the traditional theory of common law is the legislature. The judges make laws only through interpretation of the facts in a proven case.

The purpose of this article is to explain the process of law-making in South Sudan. The process of law making in South Sudan based on my analysis is primarily the function of the President rather than the legislature or the judiciary.

Under the South Sudan’s Constitution, the Federal Parliament can make laws on certain matters such as international and interstate trade, immigration, taxation, banking, insurance, marriage and divorce, currency, weights and measures, post and telecommunications. The South Sudan President retains executive powers over many areas such as defence, foreign
affairs, local government, roads, hospitals and schools.

In some respects, the legislative powers of the two Houses of the federal Parliament, the Senate and the House of Representatives are not equal. In matters relating to the collection or expenditure of public money, the Constitution gives more powerful roles to the President instead of the Parliament.

Bills which authorize the spending of money (appropriation bills) and bills imposing taxation cannot originate in the Senate. The Senate may not amend bills imposing taxation and some kinds of appropriation bill, or amend any bill so as to increase any proposed charge or burden on the people without approval of the President.

The President uses his executive powers to ask the Parliament to make amendments to any bills.

South Sudan has adopted its government structure from the system of the United Kingdom and the US. I believed that the South Sudan system of law making has been influenced by Presidential decrees which restricted the separation of powers.

In a pure democratic country like US, Australia and the UK, the legislature makes law, the government (executive)
administers the law and the judiciary interprets the law.

Many people I shared my opinion with them argued that there are no doubts in having the legislature as the principle source of law making in South Sudan. The legislators are elected to represent the ideas of the electors and when a social issue requires a new law, the legislature has power for holding hearing into the matter by taking proper advice and acting on it.

This makes the legislature to have the opportunity of making laws that will be comprehensive on the issue.

South Sudan has three levels of law-making. The Legislature, the Executive and the Judiciary, which are referred as the three arms of government must work together to provide service to the South Sudanese people. The South Sudan’s Transitional Constitution established a Parliament sometime known as Federal Parliament which is bicameral.

The Federal Parliament consists of two houses, the Senate Council and the House of Representatives. The Constitution gives the Parliament of South Sudan the powers to make laws. These laws can be passed with the approval of both houses.

In South Sudan, the process of law-making is supposed to be the exclusive work of the legislators and the adjudication of the law is considered as business of the judges. The separation of the legislative and judicial functions is reinforced by the democratic election of legislators and the executive appointment of judges.

The legislators are the elected representatives of people, therefore, they have a mandate to act on behalf of the community and make laws with permission of the people. This idea of elected legislators gives less power to non-elected judges. The judges have no comparable mandate to legislators because their mandate is to exercise judicial power by hearing and determine controversial cases brought before them.

South Sudan has Federal system of government under it constitution, therefore, there must be sharing of legislative law-making powers between the Parliament and the parliaments of the States. One of the important reason why law making is primary the functions of the legislature rather than the President is the separation of powers.

In the South Sudan legal system, the functions of making the law, administering them and adjudicating upon them are not institutionally separated. South Sudan’s Constitution dealt with the judicial activism, without separation of legislative,
executive and the judiciary powers.

The judicial activism is defined as a control or influence by the judiciary over political or administrative institutions. The judicial review of executive action has attracted debate about judicial activism in South Sudan. It is considered that South
Sudan Constitution has empowered and require South Sudanese courts to pass upon the constitutionality of legislation and the validity and lawfulness of executive acts.

Section X of the South Sudan Constitution confers authority on the High Court to review unlawful executive action. Every government in the world has tension with the judiciary to some degree or another, principally because politicians do not cherish being told what they did wrong and facing an institution of government with the power to force them to correct their mistakes. The Kiir government has no exception in regard to judiciary powers.

An important limitation on judicial law-making arises from the need for the judge’s view to be accepted by the community and the profession. The work of the most judges is concerned with interpretation and they legislate only in hard cases. Judge-made common law must depend on its compatibility with contemporary view.

The judge considers the parameters of new rules for the common law and determines whether the rules proceed. The judge as an
interpreter, when the facts have been ascertained, the process of judicial decision-making involves finding the law through the interpretation of the legal materials and applying the facts to the case. The judge must abandon the interpretation and formulate a new rule to cover a case. This can be done by assessing the materials collected and formulate a better rule in hard cases.

This means that judge has no authority to make general law but rely on the interpretation and the existing body through use of the materials and facts of the given case.

The nature of dictating the judges in law-making reduce power of the judges and severely affect judicial activity. A judge made rule must be systematically related to the class of rules, principles and doctrines which make up the general body of common law.

The judiciary make law only arises in a case presented by parties of disputes. This means, the judges have no power to bring disputes to court no matter how urgently they may feel that the law needs to be reviewed. Under the separation of powers doctrine, the task of the court is to interpret the law and apply it to the relevant facts proven in a given case.

Judges are limited in the evidence that they may hear when formulating new law. Most of the representations placed before the court by the parties to the litigation are based on the prior law and on proof of the facts that are in disputes. However, the roles of the judges in South Sudan are considered as deciders of disputes according to the law.

Another objection against judicial law-making in South Sudan is its retrospective nature. This argument against retrospectivity
is integral to traditional formulations of the rule of law. It holds that the retrospective application of new rules is unfair to the parties affected and undermines the value of certainty and predictively in the law. The process of law-making involves much more than knowledge of existing law and it defects.

Therefore, judicial law-making must have limitation in making the law. It requires knowledge as to how change may affect interest of diverse community, which will be regulated by the proposed change. The Court is forced to rely on the President and the parties for their information on relevant matters.

The separations of powers allow the legislature to make law and the executive to administer the law while the judiciary resolve disputes according to law. In 2007, the courts of South Sudan described the central functions of the courts as to exercise the Federal jurisdiction under the South Sudan Constitution.

The function of the judge can be considered in the light of simple model that judge can identifies a rule of law applicable to a fact in a given situation and determine the facts of the case. It is arguable that rules of law applied by a judge may be
constitutional, statutory or the judge made rules.

Parliament as the law makers can sometime delegate law making powers to the executive. The executive is one of the arms of government which includes the President, Cabinets and Public Servant employees. Such delegate is authorized by statutes enacted by the parliament.

The role of the executive is to administer the laws made by the legislature but also delegated the task by Parliament to make rules and regulations that spell out in detail the statutes law. The executive administer law through government agencies. I believed that by-laws, regulation and other statutory which exist in South Sudan are delegate legislation. They are made by an immense array of public officials, statutory and other bodies elected as legislators.

Since South Sudan inherited legal system from United States of America, South Sudan judges ignored and failed to engage in the process of developing the common law as well as interpreting the status. The common law has definition, as the laws made by judges. The judiciary which comprising the High Court and Federal courts is charged with the responsibility of interpreting the laws of the government in court’s decision making.

If one of the arms of the government attempts to exercises the power of another arm, the constitution challenges the move and considers it as unconstitutional. The High Court enforces the separation of powers in the government, especially between judiciary and others government branches such as executive and legislature.

The power of the judges in law making lies in their judgement. The South Sudan Chief Justice Chan Breech Madut and the judiciary failed to set their own agenda in term of law making. They only decide cases that come before them within the parameters and confines of that case. They cannot make up facts or invoke evidence such as expert evidence which is not before them. The South Sudanese people believed that judiciary is one of the broader elements of justice system.

The Presidential decrees have influence the way in which South Sudan Courts work and limit the powers of the executive conferred to them in the Transitional Constitution of the Republic of South Sudan. The judiciary has been considered important because it deals with interpretation and constitutional issues. The High Court has to resolve legal disputes that arise between the government and the people.

In conclusion, the major source of law-making in the Republic of South Sudan is vested on the President rather than the Legislature. The Legislature makes law only through administering the Presidential decrees issued by the President. Under the separation of powers doctrine, the task of the court is to interpret the law and apply it to the relevant facts proven in a given case.

Judges are limited by the Constitution in the evidence that they may hear when formulating new law. Most of the representations placed before the court by the parties to the litigation are based on the prior law and on proof of the facts that are in
disputes.

Bol Garang de Bol is a South Sudanese living in Canberra, Australia
He can be reached at nicetobeme05@yahoo.com

1 Comment

  1. bolabokdit says:

    Bol Garang
    The transition constitutional of southern Sudan vested all powers on president of south Sudan no doubt. In every revolution, revolutionist always takes on all powers to implement the vision and the direction country is supposed to go. Since their operational constitution is called interim constitution no one considered it dictatorship. The question here is this: why corruption, mismanagement, occur and ignored development?. Is it because it is interim constitution? Is this irresponsible behaviour will stop when south Sudanese come up with real state constitution?. Your analysis on the process of law making is correct but it depending on how one views state’s mismanagement. To me, if president has all powers where do ministers get their powers to abuse the governance system?

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