Definition
Public opinion has been defined as the aggregate of individual attitudes and beliefs held by the adult population[1]. Public opinion can also be defined as the complex collection of opinions of many different people and the sum total of there views.[2]
Public opinion is the coherent view held by all members of a group who are giving attention to specific issues within them. It comprises of a collection of every body’s view, and wishful thought.
However for purposes of this study ‘public opinion’ is understood as the views of majority members of society held at a given time on specific issues in society.
Some courts have taken recourse to public opinion in arriving at their decisions especially in matters seriously affecting life. In this respect they have found it difficult to use principles inherent in law, legal precedents or judicial intuition once law is not clear enough to direct them.
Courts are temples of justice manned by professionals. They make decisions that affect various human rights including the right to life. In making these decisions, courts are guided by various principles inherent in a given legal system. In common law traditions reliance is always on the existing laws and legal precedents where they are clear enough to answer the legal issues under consideration. However, sometimes courts go on a judicial intuition once the law is not settled enough to directly provide an answer. In these situations, courts are guided by traditions, customs, values, public opinion and the general practice in the community.
Some courts have had recourse to public opinion in arriving at their decisions especially in matters seriously affecting life such as the death penalty. Other courts have clearly rejected this approach. Reasons advanced for each approach differ.
The role public opinion ought to play in court decisions generally
The views advanced by courts and writers in an attempt to determine the role of public opinion is divided into three schools of thought: The ‘no’ role school; the ‘non-determinative’ role school; and the ‘determinative’ role school.
The ‘no’ role school
The ‘no’ role school of thought advocates that public opinion should not play a role in court decisions. Dismissing the role of public opinion in court decisions, it has been suggested that assessment of popular opinion is essentially a legislative, not a judicial, function. Choper suggests instead, that the judiciary should play a supervisory role and restrains the majority will through judicial review[3].
Murray agrees with this school of thought and although he concedes that decision-makers are required, above all, to be ‘in touch’, this, for him does not apply to the courts. He suggests that though judges are expected to be conspicuously responsive to community values, this involves knowing those values; a task that is not always as easy as it sounds. He states:54
Judges have no techniques for or expertise in, assessing public opinion. Judges ordinarily do not seek to influence public opinion. They do not sample community opinion for the purpose of informing their decision-making. And they do not set out to influence wider community values.
Nothing is more likely to undermine public confidence in judicial independence and impartiality than the idea that judges seek popularity or fear unpopularity.
The ‘non-determinative’ role school
Some writers have acknowledged the difficulty of choosing sides and have thus suggested a middle position which entails courts to consider, although not as a determinative factor, public opinion in arriving at decisions. Kanyeihamba writes:
Whereas it is a principle of the judicial oath that a judge should not be influenced by public hysteria, he or she must take into account the attitudes of the responsible members of the society, in respect of which the law is to be upheld.
This school proposes that while courts do not have to reflect public opinion, they must not disregard it; it acknowledges that courts cannot just decide in total disregard of the circumstances around them.
The ‘determinative role of public opinion’
The position of the ‘determinative role of public opinion’ school of thought is that public opinion should play a decisive role in The Court in Mbushuu was of the view that the matter of the death penalty is to be decided by members of Tanzania society holding that ‘But the crucial question is whether or not the death penalty is reasonably necessary to protect the right to life. For this we say it is society which decides.’
Murray raises many questions to display the dilemma of relying upon public opinion. He asks
for instance:
How should judges keep in touch? Should they employ experts to undertake regular surveys of public opinion? Who exactly is it that they ought to be in touch with? Whose values should they know and reflect? What kind of opinion should be of concern to them? Any opinion, informed or uninformed? What level of knowledge and understanding of a problem qualifies people to have opinions that ought to influence judicial decision-making?
Other writers have contributed to the dilemma of relying on public opinion. For instance Kanyeihamba questions; ‘Should a court take into account the degree of revulsion felt by law abiding members of the community for the particular crime?’
Some of these instances have been for instance in Uganda , the constitutional court has held that the people still desire the death penalty and that the 1995 constitution in addition to saving death penalty enjoins courts to follow the aspirations, values , norms and wishes of the people when making judicial decisions.
Susan Kigula v Attorney General.[4] Where in a petition challenging the constitutionality of death penalty in Uganda , the constitutional court inter alias stated that because people where in favour of retention and courts are enjoined to decide in accordance with the wishes of the people, the death penalty was constitutional.
Similarly in Kalu v the state[5] the Supreme Court in Nigeria considered whether the death penalty violated inter alias, the right to life and the protection against inhuman or degrading treatment guaranteed by section 30 & 31 of the Nigerian constitution. The court upheld the death penalty arguing that the constitution saved it and the punishment was still popular.
The Tanzanian court of Appeal in Mbushuu and Another v Republic of Tanzania[6], where the high court had held that the death penalty was unconstitutional and the respondent cross appealed against that decision. One of the issues was whether the views of the society were relevant in determining the constitutionality of death penalty in Tanzania, this court of appeal argued that such matters are better left to the people to decide and that the constitution had provided for death penalty.
However some courts have rejected the use of public opinion in their decisions, the South African court in State v Makwanyane [7] has reasoned that judicial decisions are based on the law and not public opinion, and therefore court can neither seek nor rely on public opinion. This was the case where two death row inmates challenged the constitutionality of the death penalty. Part of the arguments vested on whether public opinion that was largely believed to be in favour of the retention of death penalty should have been relied upon by the court, respectively.
Having reviewed and modified the code of conduct for judges magistrates and other judicial officers 1989 the judicial committee adopted the Uganda code judicial conduct on the 20th June 2002 the preamble of this code states that recognizing that the Uganda courts of judicature are established by the constitution to exercise judicial power in the name of the people of Uganda in conformity with the law and with values norms and aspirations of the people and are enjoyed to administer substantive justice impartially and expeditiously were aware that the real effectiveness of judicial authority lies in the respect and acceptance the public accords to its exercise…
The code of conduct states as its first principle the independence of the judicial officer and is to the effect that a judicial officer shall exercise his function n independently on the basis of his or her assessment of the facts, and in accordance with the conscientious understanding of the law of any direct or indirect extraneous influences, inducements, pressure, threats or interference from any quarter for any reason.
Public opinion finds it sway into the justice system and finally to the decision making platform of the courts through various channels these include public opinion polls, legislative debates writings of jurists social pressures, political situation and referendum on legal issues.
Does public opinion have a roll to play in court decisions?
From a legal perspective public opinion does not have a technical roll to play in court5 decisions. Neither the law nor judicial ethics generally permit court reliance on public opinion. In practice however courts take into account what society expects without being bound by it and sometimes without explicitly acknowledging that they do.
Arguments in support of the role of public opinion in courts decisions.
Constitutions make it a duty for courts to decide cases in accordance with ht views and aspirations of the people. The respondent in Susan Kigula case relying on Article 126 of the constitution among other grounds argued successfully that the constitution required court’s to take into account public opinion when making judicial decisions.
Article 126 in part states “…justices shall be exercised in the name of the people and in conformity with law values norms and aspirations of the people…”
Justice Twinomujuni in the constitutional court agreed with the respondent on the constitutional basis for following public opinion by holding “I agree that the norms and aspirations of the people must be taken into consideration when interpreting this constitution. The courts are also enjoined by article 126 on the constitution to respect the law the norms values and aspirations on the people. I do not agree that public opinion is not a relevant factor.
Another argument is that the constitutional principles need to be interpreted in light of prevailing views of the people which are not static but dynamic.
This was pointed out in Tuffuo v Attorney General[8], where the supreme court of Ghana in expounding on rules of interpretation , held that a constitution embodies the will of the people, contains their aspirations and hopes and mirrors their history, this implies the necessity of considering public opinion.
This position was also reiterated in Weems v United States[9], where the Supreme Court held that a constitution was ‘not fastened to the absolute’, but might ‘acquire meaning as public opinion becomes enlightened by human justice.’ This implies that the constitution is given life by interpreting it in the light of the prevailing trend of views of the people which are dynamic in nature.
One may as well argue based on the preposition that law is a product of society and often times is reflection of where it operates. As the custodians of law courts are expected to consider the dynamics of public opinion as regards important issues in society. In the European human rights case of Dudgeon v United Kingdom[10], court held that ‘…in a democracy the law cannot afford to ignore the moral consensus of the community’.
It would be very strange indeed if courts where in a way immune from social pressures, bearing in mind that judges are also human beings or at least live within the same society with people and are part of society. Ignoring the dynamics in opinion of the people they live and operate among would cause chaos since decisions would be made that is not agreeable to the people and hence cannot be implemented due to the resistance the people it affects would mount.
In Uganda the constitution clearly stipulates that power belongs to the people,[11] and one might argue that the judiciary just like the executive and legislature is a branch within the state which cannot ignore peoples force.
Public opinion must be relied upon when considering penal sanctions. for instance in the Tanzanian case of Mbushuu, the court held that in answering whether or not the death penalty is necessary, society should decide. This view point was supported in S v Mhlokaza[12], which stated that while courts may not rely upon public opinion in reaching judicial decisions, they must not disregard it. It was also observed that the main duty of the court is to lead public opinion.
Arguments against public opinion
Public opinion is irrelevant for the duty of courts is to decide in accordance with the constitution and other laws.
The petitioner in Kigula insisted that even if a majority of the 20 million citizens of Uganda had been in favour of the death penalty, this would not have made death penalty constitutional as courts have not at any one time given pre-eminence to the role of public opinion on such issues.
Legally judicial independence and ethics does not agree to judges succumbing to such public pressures, for unlike the legislature and executive who can consult their constituencies court cannot be adhered to be influenced by any factors or persons I dispensation of justice.
Court should not relegate their judicial functions to the masses. The petitioner in Kigula argued that Article 126(1) of the constitution enjoined courts to exercise judicial power in conformity with law and aspirations of the people and therefore public opinion might have some relevance it is in its self no substitute for the duty vested in court to make interpretations without fear and favour.
Public opinion can be considered however it is not binding. This position was stated in the South African case of Makwanyane, [13]where court held that courts do not represent the people because they are ‘courts of law’ not ‘of public opinion’. It was also observed that the determining factor is the law under consideration; public opinion could not be decisive.
Issues if public opinion is not a decision of the general public but for the courts to determine judiciously. If at all public opinion is called upon each time an issue of human rights of an individual is up there would be serious jeopardy. It was illustrated in the makwanyane case that the very purpose of a bill of rights was to withdraw certain subjects from the vicissititude of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by courts. Such rights are so fundamental to be submitted to vote for they are not an outcome of an election.
Position of American courts
In The Modernizing Mission of Judicial Review,[14]Professor Strauss argues that a different form of judicial review has quietly emerged—an approach that, more or less consciously, looks to the future, not the past; that tries to bring laws up to date, rather than deferring to tradition; and that anticipates and accommodates, rather than limits, popular opinion.
Professor Strauss argues that the Supreme Court’s decisions are efforts to “modernize” the law by facilitating and accommodating developments in popular opinion, rather than actions that merely entrench the justices’ ideological viewpoints or personal whims. A modernizing court decision must satisfy two conditions. First, it invalidates a law only if it “no longer reflects popular opinion” or if “trends in popular opinion are running against it.” Second, the Court “must be prepared to change course” if “popular sentiment has moved in a different direction from what the court anticipated.” In one sense, the Supreme Court is always prepared to respond to developments in popular opinion, because the president and the Senate will use their appointment prerogatives to bring the Court into line.
Professor Strauss invokes the Supreme Court’s refusal to declare capital punishment unconstitutional per se in Gregg v Georgia[15] as evidence of its “willingness to retreat” from its earlier decision in Furman v Georgia[16].Furman had declared capital punishment (as then practiced) to be unconstitutional, and prompted thirty-five states to reenact legislation authorizing the death penalty.
Mitchel[17] however in response to Straus argues that it is hard to characterize these post-Furman obstacles to capital punishment as “modernizing”; popular support for capital punishment grew steadily from 1972 through 1994, and exceeded 60 percent in every Gallup poll taken since 1976. His opinion is that the courts have instead adversed judges’ preferences rather than public opinion through open ended opinions like that of the gay rights case of Lawrence v Taxes.
In its most important sex discrimination case United States v Virginia[18], which declared unconstitutional the Virginia Military Institute’s exclusion of women students, the Court emphasized both VMI’s outlier status (there was only one other all-male public college in the country and the fact that VMI’s single-sex policy had been adopted at a time when women were routinely considered unfit for many occupations.
The problem with the exclusion of women from VMI was not that it was based on mistaken factual claims about the effect that the admission of women would have on military education—the courts, in reality, are not well equipped to evaluate those claims—but rather that the decision to exclude women from VMI was made in an era when attitudes were so different from what they are today. The Court’s opinion in Virginia also carefully left open the possibility that the Court would allow sex segregation in education in certain circumstances. The Court’s concern in Virginia was not with the justifiability of sex-segregated education per se, but with whether a policy of sex-segregated education was modernized—whether it was the product of current ways of thinking and not a holdover from earlier times.
The opinion in Lawrence was, conspicuously, written in an open-ended fashion that allowed the Court to wait and see what the reaction would be. The opinion allows for future expansion of the right that the Court established, to strike down other forms of discrimination against gays, including prohibitions against gay marriage. But the opinion would also allow the Court to confine the holding narrowly to the relatively uncontroversial case of laws forbidding same-sex sodomy.
The question then is whether courts should modernize.
Straus is however of the opinion that the more far-reaching question, though, is whether the modernization approach is too tempting and causes the courts to be too willing to sway with the political winds. The two most famous cases of modern times Brown v Board of Education[19] and Roe v Wade,[20] both modernizing decisions illustrate this point. Roe was decided at a time when the trend in the nation was toward liberalizing abortion laws, and the statute invalidated in Roe which allowed abortions only to save the life of the mother was relatively restrictive; at the time nearly half the states in the country allowed abortions when necessary to protect the mother’s health, not just her life. Of course, the opinion in Roe swept more broadly, and it did not seem to allow for pushback from the political process. But as the controversy over abortion continued, the Court modified Roe and allowed various other kinds of restrictions on abortions, ultimately establishing a regime that is a plausible political compromise but arguably does not reflect a sufficiently coherent or principled view.
Brown, also, was a modernizing decision in important respects. Popular sentiment against racial segregation had been building for decades, and the justices regarded segregation as an anachronism. The Court’s second Brown decision famous for saying that desegregation should be accomplished only “with all deliberate speed”, reflected the sensitivity to political reaction that is characteristic of modernization. Again, the questions are whether the Court was too sensitive, and whether desegregation might have proceeded more smoothly if the Court had not signaled a willingness to slow down when confronted.
Straus at the end of the day is of the opinion that it does not follow that the courts best serve the country when, as the modernization approach prescribes, they make it their mission to anticipate and facilitate rather than correct the operations of democracy.
BIBLIOGRAPHY
Written Law
Constitution of The Republic of Uganda 1995
The Uganda Code of Judicial Conduct Regulations Act Adopted June 2002
Articles
David Straus, The Modernizing Mission of Judicial Review. The University of Chicago Law School. May 2009
Jonathan F. Mitchell. A Response to David Straus, Modernizing Mission of Judicial Review. George Mason University School of Law.
Kakooza. J. ‘Opening Address to the first Conference on the application of the Death Penalty in Common Wealth Africa’ (2004) The Uganda Living Law Journal Vol. 2 (1) 84
Kanyeihamba. G. ‘Reflection of a Judge on the Death Penalty in Uganda’ (2004) The Uganda Living Law Journal 2 (1) 93
Domestic Case Law
Attorney General V Paul K. Ssemogerere & Zachary Olum Constitutional Appeal No. 3 of 2004(Unreported)
Simon Kyamanywa V Uganda, Constitutional Preference No. Of 10 2000(Uganda) Unreported)
Susan Kigula & Anor V Attorney General, Constitutional Petition 6 of 2003.
Common Law Jurisdiction
Kalu V The State (1998) 13v NIULR 54
Mbushuu and Anor V Republic of Tanzania 1995 TLR 97
State V Makwanyane & Anor 1995 1 LRC 269(Cc)
American Jurisdiction
Atkins V Virginia (2002)
Brown V Board of Education 347 US 483 (1954)
Furman V The state of Georgia (1992) 408 US 238
Lawrence V Taxes 539 US 558
Roe v Wade (1973) Decided January 22.
Internet Source
http: wikipedia the free encyclopedia
[1] Public opinion from wikipedia the free encyclopedia <>( accessed 14th October 2009)
[2] supra
[3] Choper quoted in V Wyk Rights and constitutionalism: The new South African legal order (1994) 9.
[4] Constitutional petition 6 of 2003 (Uganda) (UNREPORTED)
[5] (1993) 13NIULR 54
[6] 1995TLR 97
[7] Supra 269
[8] [1980] GLR 637
[9] 217US 349, 378 (1910)
[10] (1982)4 EHRR 149, 184
[11] Article 1 constitution of Republic of Uganda 1995 as Amended
[13] Pg 89
[14] Chicago Law Review 76 U ( forth coming 2009)
[15] 428 US 153(1996)
[16] (1992) 408 US 238
[17] Jonathan F. Mitchell is Assistant Professor of Law, George Mason University School of Law.
[18] 518 US 515 (1996)
[19] 347 US 483 (1954)
[20] 410 US 113 (1973)
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