Judicial independence is sacrosanct

The Sunday Star

With All Due Respect by Roger Tan

Assaulting the judiciary is as crude and uncivilised as assaulting a referee who impartially and fearlessly applies the rules of the game.

Just and fair: When the judiciary decides against the authority it is simply doing its duty under the Constitution which expresses the will of the people just as when it decides for authority.

Judicial independence – a sacrosanct concept which I have written quite a bit over the years – has been much talked about again, lately.

What then is judicial independence? I believe this can be best explained by one of our most celebrated judges, Lord President Tun Mohamed Suffian Hashim when writing his foreword to The Role of the Independent Judiciary by Tun Salleh Abas on Dec 17, 1988 as follows:

“When the judiciary decides against authority there is no question of its being superior to Parliament or the Executive; the three branches are co-equal partners, each branch being like the leg of a three-legged stool. When the judiciary decides against the authority it is simply doing its duty under the Constitution which expresses the will of the people just as when it decides for authority.

“To accuse a judge of wanting to wrest power from the elected representatives of the people and thus destroy democracy is as absurd as accusing a football referee of wanting to take over the game and thus destroy football because from time to time he blows the whistle against one’s team-mate. There can be no justice for the people without independent judges as there can be no game without independent referees. Assaulting the judiciary is as crude and uncivilised as assaulting a referee who impartially and fearlessly applies the rules of the game.

“Those who stand by and do nothing to protect the independence of the judiciary will in the end get a judiciary they deserve – one powerless to stand between them and tyranny.”

This is echoed by the new Chief Justice, Tan Sri Md Raus Sharif in his inaugural speech at the recent ceremony celebrating his elevation that it is his duty as well as everyone’s to ensure that the independence of the judiciary is safeguarded.

“As an institution, the judiciary is not and should never be beholden to anyone but the Federal Constitution,” said Md Raus. In other words, not even to the Executive nor Parliament!

To the legally trained, this is also known as the doctrine of separation of powers where the three branches of state – legislature (Parliament), executive (government) and the judiciary are independent of one another so that each has separate powers to become a check and balance on the other.

As the French philosopher Baron de Montesquieu puts it: “Again, there is no liberty, if the judiciary power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

Hence in the State of Washington v Trump, 2017, the USA Ninth Circuit Appeals Court ruled that President Donald Trump’s executive order on travel ban is not unreviewable; otherwise, it will run contrary to the fundamental structure of a constitutional democracy which requires compliance with the US Constitution which is the supreme law.