Why judicial independence matters


  • A Humble Submission
  • Monday, 03 Nov 2014

IMAGINE this scenario. Parliament enacts a law that allows the government to acquire land owned by individuals. The law provides that the acquisition can be made if the government wishes to commercially develop the land. The landowner has no right to dispute or deny the acquisition and according to the law, the government need only compensate the landowner for the acquisition for a minimum sum.

The law comes into force and many landowners have their land acquired by the government under this new law. The government’s justification for these acquisitions is simply that it is acting under the new law and that the land would be commercially developed. No other reasons are given. Even the compensation that is given is far below the real value of the land.

Understandably, many are unhappy. They feel that their rights have been denied by the government. Yet, strictly speaking, the government is merely enforcing a law that has been passed by Parliament. On the face of it, the government’s actions are legal in the eyes of the law.

In this fictional scenario, where can the landowners seek relief? Where can they enforce their rights and who will protect their property from the government’s wanton acquisition? The government, which took the land in the first place? Parliament, which enacted the law that empowered the government, and for all intents and purposes, is controlled by the government?

The answer lies in the courts. If a person’s rights are violated by the government, the judiciary is responsible to ensure that the person has an avenue to enforce his rights. In the scenario above, the court has the power to decide whether the law is valid, whether the government needs to provide an objective justification for each acquisition or whether the compensation given is far too little. Any decision by the court would bind the government and the government would have to uphold it.

The doctrine of separation of powers would be familiar to us. According to this doctrine, power in a State generally resides in three separate bodies. The legislature that enacts laws. The executive that implements and executes laws. The judiciary that interprets laws.

As the saying goes, absolute power corrupts absolutely. If power were centred in one body, the same body would have powers to legislate, enforce and interpret laws. If there were a complaint that the body exceeded the law it legislated, the same body too would determine whether that is indeed the case. This would most certainly lead to injustice, and even if the result is just, the adage reminds us that justice must also seen to be done.

The organs of the State each have their own functions and responsibilities. Their powers are limited and they act as a check-and-balance mechanism to each other. This means that each institution acts as a check, or watchdog, on the other institutions. This ensures that the institutions act in accordance with their constitutional roles, and do not abuse their power.  None of these bodies have absolute power.

Within this framework of separation of powers, one of the most important functions of the judiciary is to uphold the constitution of the State. Only the judiciary is mandated by the constitution to interpret the constitution and to decide whether laws enacted by the legislative assembly or actions by the Government adhere to the constitution and are valid. Through these functions, the judiciary may review any excesses by other state bodies and uphold the fundamental liberties of the citizens.

That is why some jurists argue that the judiciary is the last bastion of fundamental liberties, the wall between the citizen and the excesses of the State.

If the people do not have faith in the courts, if they feel that the judiciary will not be able to protect them, they will not respect these bodies. This deficit of trust may result in the people looking for other means to obtain justice. It would not be too far-fetched to think that this will affect society and the country, culminating in a breakdown of the legal system.

This is why the independence and integrity of the judiciary is of the utmost importance to ensure the rule of law is preserved and to protect fundamental liberties. If the judiciary is subservient to the other State bodies or if there is interference in the judiciary which compromises its independence and integrity, the judiciary will not be able to carry out its responsibilities as mandated by the constitution.

*Syahredzan Johan is a lawyer

> The views expressed are entirely the writer's own

 

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