Sunday, 17 February 2008

It’s a Tricky Proposition

Brave New World (The Star)
1 November 2007


The separation of powers is a strange concept indeed. On the face of it, it appears to be a simple enough thing. The three branches of government – the executive (Cabinet), the legislature (Parliament) and the judiciary – have to be separate and independent of one another.

This is to ensure that each body acts as a check and balance against the other, ultimately protecting the citizens from any form of despotic government.

But things are never so clear-cut. Because we use the Westminster model of parliament, our executive is selected from the majority party in the legislature.

Therefore, the Cabinet members sit in two branches of the Government. And party politics being what it is, the majority party in the legislature in turn will be loyal to the Cabinet.

In some more mature democracies, you may see rebellion within the ranks, where MPs of the ruling party vote against the proposals of the Cabinet, but that does not happen here.

The legislature thus cannot be said to be a very effective check and balance to the executive. Especially since that second branch of the legislature, the Senate, is appointed directly by the executive.

This makes it all the more important in this country to have a strong and independent judiciary – one that can make sure the Cabinet does not behave in a way that exceeds its powers and that the legislature does not make laws that are unlawful according to the Constitution.

Again, we see that things are not so cut-and-dried.

The judiciary, at least in this country, is selected to all intents and purposes by the Prime Minister, who is the head of the executive.

There is nothing particularly unique here, this happens in many other countries, too, where the lines between the executive and the judiciary are blurred.

In the US, for example, the President chooses the judges of the Supreme Court. Like I said, separation of powers is a strange concept indeed.

However, there are key differences between places like the US and Malaysia. For one thing, governments change over there.

So, even if a conservative President chooses a conservative judge, he will be sitting on a Bench that is populated also with liberal judges chosen by an earlier liberal President.

Furthermore, once the man (until Hilary Clinton actually wins, it’s still “man”) is out of the Oval Office, then any sort of personal allegiance (if any) will also disappear.

And here is the crunch – judges in the US have a job for life. They sit in their robes on their judge’s chair until the law clerks have to pry their cold, dead bodies from it.

And what is more, there has been no firing of judges; so that means they can do their jobs without any fear or favour.

Back home, this is obviously not the case. The removal of Salleh Abbas in 1988 showed us that judges could be dismissed in a method that is legally unsound and procedurally dubious.

Up till that point, although our judiciary had the tendency of being rather conservative and timid, it had been independent. And perhaps more importantly, it was respected due to that independence.

Since 1988, things have changed, leading to what I would say is a crisis in the judiciary.

Now, we can bury our heads in the sands of political convenience and self-interest and just say, “Crisis? What crisis?” but that would be ignoring the reality.

Realities like the High Court judge who was so fed-up with the state of the judiciary and the behaviour of some of its members (including the top judge of the time) that he had to resort to writing a surat layang in the mid-90s to vent his anger.

The fact that no disciplinary or defamation action has been taken against this judge speaks volumes.

Or, another High Court judge who said in his final judgement that when deciding over the validity of a by-election in 2001, he was actually instructed to decide in a particular way.

And now, of course, the infamous video clip showing, allegedly, a lawyer brokering the post of the Chief Justice like a contractor brokering a tender.

This is not to suggest that the judiciary is a lost cause.

There are still judges who make decisions which surprise and astound, not so much by their brilliance, because the principles espoused in the judgements are fundamental and basic, but because one has all but given up hope that such simple concepts of justice could be seen and heard in our courts.

Justice Hishamudin Mohamad Yunus is one such man, consistently upholding Constitutional principles over draconian laws. One hopes that he will remember that a legacy such as his is far more important than the trappings of high office.

But he is one man. And even though there are others like him, the institution itself is under threat.

All the sad events mentioned earlier suggest this and by themselves deserve serious and independent investigation. Put together, they demand it.

The separation of powers is a fragile thing. In reality there are many grey areas, especially in the appointment process, but if the integrity of the men and women who make up the three bodies of the Government is intact, then those grey areas fade to nothingness because the practice of separation of powers becomes as pure as possible.

In a system where a politician can say the Chief Judge is answerable to him, where the Federal Court can actually say the separation of powers and democracy are not the aspirations of the Constitution, the separation of powers is clearly as ephemeral as a dream, and it is high time something is done to make sure the judiciary is once again clean and independent.

If we don’t demand this, then one day the protection that the Bench is supposed to provide will disappear entirely. We will be living in a country that is not a democracy, and we will have no one to blame but ourselves.

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