JUDICIAL INDEPENDENCE -THE SEPARATION OF POWERS (dedicated to NH Chan)
Sometime back in 2010 or 2011 Retired High Court of Malaysia Judge NH Chan made an utter fool of himself by accepting an invitation by Pakatan supporters and the Malaysian Bar Council to address a forum in KL in which he was honoured guest. NH (No Hope to many) took up that invitation to satisfy his vanity and the baying for blood where there was none.
The title of his keynote speech “Who will judge the judges?”. A brilliant subject for a retired judge if one had the intellectual capacity and the background to address a topic such as this. NH had not the faintest of ideas of the root doctrine which lay at the heart of the topic he chose or was asked to speak on that day. But this was NH Chan and the Malaysian opposition.
He kept on referring to Lord Denning and a case R vs Dudley and Stephens a case which was as relevant to his chosen topic for the day as any speech by the King of Saudi Arabia delivering the keynote address at an international Ham and Bacon processors convention.
If NH Chan had only consulted us prior to his appearance at that convention by the Malaysian Bar we could have assisted him with a few essays by our HSC Legal Studies students which could have saved him the embarrassment immortalized on youtube. But that’s NH Chan and the anti government crusaders. Not that I am a fan of any government.
Being in opposition (or politics in general) requires more than merely grabbing an opportunity, any opportunity to making a fool of oneself in public. It requires planning, research, intelligence, courage, knowledge and a sharp intellect to convincing the public. Good compelling oratory skills would definitely assist.
NH has convinced many of us of the wisdom of that old saying “Better to remain silent and be though a fool, than to open your mouth and remove all doubt”.
BEGINNING WITH THE ACT OF SETTLEMENT 1701
The doctrine of Judicial Independence a convention of the English constitution traces its statutory origins and existence to the enactment of the Act of Settlement in 1701. That Act formalized recognition of the main elements of judicial independence, of security of tenure (holding office subject to good behaviour, whilst also setting up proper mechanisms for the removal of judges (an address of both houses of parliament). In doing so the convention was given a set of legislative handles to reaffirm the cornerstone of one of the pillars of the doctrine of the Separation of Powers, Judicial Independence.
THE MANY FACES OF THE DOCTRINE AND ITS INTERPRETATION
The theory of Judicial Independence, one component of the doctrine of the separation of powers, an American political doctrine, was designed to keep the judiciary, the legislature and the executive (three branches of government) apart in decision making and in the business of government.
Primarily the object of the doctrine and the philosophy behind it was to prevent absolute power falling into the hands of any one branch of government without accountability.
In practice, although judges are expected not to interfere with the business of government, that is not the case in the world’s most influential common law jurisdiction, the USA. There the Supreme Court has powers to strike down legislation as being unconstitutional (Marbury v Madison) and illegal undermining the powers and sovereignty of the elected legislature.
THE HOUSE OF LORDS- A CHAMBER OF IRONY
The same position is true in Britain where, the doctrine is said to have its genesis. For ages, Lords of the courts of appeal, (the House of Lords) the Lord Chancellor and other law lords have sat on the benches of one of the two houses of parliament and presided over legislation, changes to it and even though not involved in the debates, have enjoyed and exercised that right to vote in or out legislation and to participate in the process of executive government and the legislature.
In Europe judges have and often liberally exercise the power to set aside primary legislation that does not comply with the Treaty of Rome (the statute that gave life to the EEC). The practice continues to this day unabated.
MALAYSIA AND THE DOCTRINE
In its classic interpretation of the model of a parliamentary democracy, the state is sovereign. That concept applies to Malaysia which has adopted the framework and many of the laws of Britain and its style of a parliamentary democracy. However in practice the concepts of parliamentary democracy and the separation of powers appears not understood or accepted by of all people, academics and practitioners within the legal profession whose comments on the subject appear often shallow and embarrassing.
To many including the president of the Malaysian bar and his colourful very vocal predecessor, the doctrine of judicial independence confines judicial officers to a social prison, unable to function if they share a cup of tea with the executive. Wrong. Sadder still and more disturbing is their willful ignorance of the deeper meanings of the doctrine of judicial independence, its limitations, contradictions and the unavoidable overlaps and breaches of it in practice.
Judicial independence is not the product of an article of the constitution nor the misperceptions of an unenlightened group of lawyers, politicians or academics. It is a convention of constitutions supported in part by minimal legislation such as the Act of Settlement of 1701. It is a doctrine, a theory that is given life and meaning through good conduct and good conscience by good and upright people, like that proverbial man on the Clapham omnibus.It is also an obligation of responsible government, the judiciary included.
The doctrine of Judicial Independence has evolved over time within changing political and legal landscapes to be different things to different people, but it has nonetheless remained fundamentally about judges being able to undertake their duties without fear of any oppressive external influence. That includes fear of media criticism, criticisms from the legal and judicial fraternity and fear of the power of money, politics and force that would otherwise hinder a clear and fearless dispensing of justice within the Rule of Law.
The judiciary faces many challenges in this respect in Malaysia. Not least of these is the abject ignorance of some members of the bar who pose the greatest challenge to its functioning independently in their daily breaches of the doctrine.
Poor judicial conduct is the prerogative of parliament to deal with. Not that of the bar or the media. Poor judgments are the prerogative and duty of the appellate courts to deal with and not that of ill informed politically motivated lawyers, retired judges or academics who usurp constitutional conventions on the subject.
The doctrine is about independence of thought, independence from external influence (not simply the other branches of government), independence from personal bias political and religious constraints and social imperatives.
It is perhaps the for this latter reason why the Malaysian bar and opposition political parties embarrassed themselves by their failure to act and to seek the recusal of a proselytizing Christian judge in Lau Bee Lian sitting to hear a contentious and highly sensitive matter that had religion and conflicting religious overtones to it which on any reading of the law she would have not been able to distance herself from or to bring an independent and forensic mind to it in the Allah matter (Malaysian Catholic Herald).
The larger than life salaries judges are often paid is deliberately designed to provide them with more than just the simple comforts of life and financial security. It is also designed to protect them against the temptations of pecuniary monetary inducements and other commercial considerations that could influence their decisions and their thought processes as judges.
Other protections afforded against external influences over judicial independence to judicial officers whilst on the bench include their protection from being sued whilst holding office. This last protection is sometimes misunderstood by lawyer s and judges themselves as demonstrated by a seminal case in Australia in 2005.
GREAT HISTORIC BREACHES WE LIVE WITH
In Queensland Australia in 2005 an omission of this last protection (immunity from prosecution in office) was committed by a line of judges up to the court of appeals in that state when former chief magistrate Di-Fingeleton was tried and jailed over an offence she did not commit whilst still a sitting judicial officer. Her trial and subsequent jailing in the matter was widely perceived to be a purely political exercise.
The High Court of Australia in overturning her conviction and ordering her release from jail, was scathing in its criticism of the Queensland judicial system and its handling of the process resulting in the trial and conviction of a sitting judicial officer in Fingleton. The High Court’s criticisms were directed primarily at the lower court judges and the states administration of justice for their collective failure to understand what is a very basic principle of jurisprudence and constitutional law which amongst other things deals with the doctrine of judicial independence in the context of the separation of powers.
Greater historic breaches of this doctrine in places like Australia are evidenced in the sacking of the Australian government of Gough Whitlam in 1975 on the advice to the opposition by Justice Sir Garfield Barwick.
Sitting justices of the Federal and High Court of Australia have often without reprimand commented adversely on political decisions of government and in more recent times the government of Julia Gillard prime minister of Australia has seen encroachment of the High Court bench on her decision to send refugees to Malaysia for processing arguably in breach of Australia’s Human Rights obligations.
PM Gillard will seek to pass legislation to overcome this obstacle to the sovereign powers of the legislature over the judiciary on one reading of the matter.
Clearly not understood in its deeper context and meaning, the Tun Salleh Abbas affair and his sacking was turned into a political circus by the Malaysian Bar. Here too the convention was breached but with good cause and is not without precedent. The Malaysian Bar politicized that incident attacking the executive without understanding the overlap of powers in the doctrine or the legality of such action. In the process they unraveled the quality of leadership and membership of their organization.
DANGERS OF ILL INFORMED PUBLIC COMMENTARY
Independence from the decisions or the influence of other judges or members of the public and profession bringing them and their decisions to disrepute counts as an important pillar of the doctrine of separation of powers concerning judicial independence. (comments by lawyers and fellow judges past is contempt. It is an area which only parliament or another court properly constituted and sitting is empowered to rectify and comment on).
Ridicule and adverse public commentary is a form of interference with judicial independence and is prima facie actionable as contempt. That includes unwarranted comments on a judge having a harmless cup of tea with the prime minister of the day. Imputing improper conduct in statements attributed to such an even cannot go unnoticed let alone being unpunished.
It appears from all accounts that neither jurisprudence nor constitutional law is understood by the Malaysian bar and its very vocal officers who embarrass themselves with such far fetched propositions as a tea party being a potential breach of judicial independence.