Judiciary Independence in Australia and Malaysia

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JUDICIAL INDEPENDENCE IN AUSTRALIA AND MALAYSIA MEANING OF JUDICIAL INDEPENDENCE Montesquieu puts forward the idea that there is no liberty, if the judiciary power is not separated from the legislative and the executive. He said if it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; the judge would then be the legislator. If it were joined with the executive, the judge would behave with violence and oppression1. The principle of separation of powers is the foundation for a democratic state based on the rule of law. The judicial power dispenses justice in disputes between citizens and government and its agencies. Therefore, there is a need to vest this judicial power in a mechanism independent of the legislative and executive powers of the government with adequate guarantees to insulate it from political and other influence to secure its independence and impartiality. The presence of an independent judiciary in a democratic government distinguishes that system from a totalitarian one2. The current form of Westminster government that Australia and Malaysia has adopted keeps the parliament in line with the executive policy. Therefore, the judiciary is seen to be vital in providing the checks and balances. Judicial independence is the very foundation of any worthwhile legal structure. A free society would only exist as long as it is governed by the rule of law, which binds the rulers with the ruled. An independent judiciary is generally an essential requirement for the proper functioning of free and democratic society. The issue of judicial independence involves three fundamental conditions. Security of tenure of the judicial office-bearer, financial security and institutional independence. According to the doctrine of separation of powers, judicial independence is to be taken as a bulwark against the concentration of power in the hands of the Parliament or the bureaucracy. At the practical level, there is a considerable challenge in achieving appropriate degree of independence3. In common law countries, the tension between the executive and the judiciary is the result of the doctrine of separation of powers. Under that doctrine, the political system of a nation divides its governmental power between a legislature, an executive and a judiciary. In theory, the doctrine formulate a system that avoids concentrating too much power in any one body of government – the three powers are separated from one another and none is supposed to trespass into the other’s jurisdiction. Furthermore, no arm of government is supposed to abdicate power to another arm. The premise of this construct is not a harmonious relationship but a checking and balancing of power. Inevitably, the checking provides the pattern for, and generates, tension between the three arms of government. In practice, the doctrine of separation of powers is very difficult to implement. In Australia and to a greater degree, Malaysia, the system of party politics, the doctrine of responsible government and the executive’s desire for an efficient and practical working government has combined to weaken and erode the doctrine of separation of powers. If there were a pure separation of governmental power, effective government would be impossible. It is an accepted fact that the executive and legislative arms of government cannot operate independently of one another. As the United States experience often time shows, when the executive and the legislature cannot agree, a gridlock happens. The fundamental nature of legislative, executive and judicial power, more than any other factor, which has made it so difficult to maintain a strict separation between them. Judicial independence is primarily concerned with the protection of judges once appointed. It also reaches back in the process of selection. Therefore, it is important the judges are seen to be free from any appearance of partiality or pressure from the executive. Apart...
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