The role of the judiciary in a political crisis

In the standard model of the modern western liberal democracy the role of the judiciary iscircumscribed and fairly precisely defined. It interprets and applies the law, in a manner whichis impartial and unbiased. However, when the very constitutional system which creates andempowers the courts is facing a serious threat to its existence, the position of the courtsundergoes a significant change. Now, not merely must the courts impartially interpret andapply the law, but they must also decide fundamental questions of legitimacy andconstitutionality. This sometimes requires the courts to “nail their colours to the mast”, andstand or fall by the existing regime, or to acquiesce in the transfer of power to a new regime.But generally the role of the judiciary in a political crisis is not different to that in a peacefulenvironment. Its loyalty is to the law, which both empowers and sustains the courts and thegovernment of the day. Adherence to the rule of law can mean that the maintenance of law andorder – through the continuation of judicial services – may sometimes have to be subject to atleast temporary suspension. But ultimately the authority of the courts is nugatory if they cannotshow strict adherence to the rule of law