Ex-AG’s book shows need to preserve judicial independence

 

From Moaz Nair

Bertrand Russell had this to say: “If an opinion contrary to your own makes you angry, that is a sign that you are subconsciously aware of having no good reason for thinking as you do.”

The memoirs of Tommy Thomas, entitled “My Story: Justice in the Wilderness”, may have ruffled many feathers, but it has highlighted the need for the country to preserve the independence of the judiciary. This has to be noted seriously as it is imperative in a working democracy.

Independence of the judiciary is paramount in a democracy. The judiciary in our constitution is neither a branch of the executive nor a handmaid of the legislature. It has an independent identity. It is the third organ of the government meant to safeguard the fundamental rights of the people and has the responsibility to apply the laws to specific cases and settle matters of disputes.

It thus has to enjoy full autonomy in its working. The judiciary plays a major role in all democratic countries as it essentially serves as a foundation for the rule of law and democracy.

No misuse of powers

The judiciary in a democracy is the last bastion for the aggrieved parties in society. It protects the fundamental rights of the citizens because anyone can approach the court if they believe that their rights have been violated. In the absence of an independent judiciary, the rights of the aggrieved parties cannot be conserved. There will be impartiality and discrimination in the administration of justice.

The judiciary thus has to be independent to protect the rule of law and ensure the supremacy of the law. Only an independent judiciary can safeguard the rights of the individual and all matters of public disputes settled in accordance with the law.

Foremost, it should ensure that court judgements are not swayed by the influence of any individuals or politicians with vested interests. The judiciary should allow the court to independently play a vital role in securing that there is no misuse of powers of the legislature and executive.

Unequivocally, the legislative, executive and judicial branches have no authority beyond that granted to them by the constitution. Judicial independence is a matter of trust and that it guarantees that judges are free to decide in good conscience and without bias, in accordance with the law and evidence – without fear of interference. As such, the judiciary branch should prevent the executive and legislative branches from encroaching upon those rights.

In other words, the judiciary is in no way subordinate to the other two organs of the government. Its decisions bind all. Such a powerful constitutional position helps the judiciary to maintain its independence. Such attributes are considered essential for the preservation of independence of the judiciary.

More serious repercussions

The duty of judges is considered to be virtuous, therefore the country’s constitution has provided independence for the judiciary so that they can remain neutral to serve the constitutional objectives without prejudice. Judicial review and judicial activism are guaranteed to ensure that the executive and legislature are accountable to the people, conforming to the democratic principle of accountability.

Judges then have to be given a long tenure, as long as they satisfy the ethical and legal standards of their judicial office, so that they can act fairly to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically shunned by vested parties. Judges should be recruited through competitive examinations, experience and competence irrespective of their ethnic or religious background.

When the judiciary is made answerable injudiciously, to the executive power there will be no independence of the judiciary. If this becomes a norm, it’s a shame to our democracy and the people will lose faith in our judiciary. There will be more serious long-term repercussions economically as investors will stay away from the country as they fear that their rights too can be blatantly impinged on.

Moaz Nair is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.