Judiciaries in Crisis — Some Comparative Perspectives
| Date | 01 September 2010 |
| Author | H P Lee |
| DOI | 10.22145/flr.38.3.5 |
| Published date | 01 September 2010 |
| Subject Matter | Article |
JUDICIARIES IN CRISIS — SOME COMPARATIVE
PERSPECTIVES
H P Lee*
I INTRODUCTION
The well known writings and other contributions of Professor Zines on the High
Court's interpretation of Australia's Constitution and public law generally have justly
earned him the admiration and deep respect of eminent jurists bot h within Australia
and abroad. His interests extended to courts in other western liberal democracies.
In a book based on a series of lectures delivered at the University of Cambridge
under the auspices of the Smuts Memorial Fund,1 Professor Leslie Zines ventured into
a comparative study of, inter alia, the role of the courts in the United Kingdom,
Canada, Australia and New Zealand. He noted that Canada, Austra lia and New
Zealand share the common feature of the perplexing difficulty of pin-pointing an exact
date when these cou ntries obtained their independence from Britain. 2 In other
countries which were former British colonies, the date of independence could largely
be ide ntified by the date when the Union Jack was lowered and a new national flag
was unfurled. The cleavage betwee n Canada, Australia and New Zeala nd on one hand
and the other Commonwealth cou ntries on the other, however, was not confined to
this perplexing difficulty. Canada, Australia and New Zealand share with the United
Kingdom a steadfast belief in the fundamental importance of pr otecting the
independence of their judiciary and individual judges. Adverse judgments against the
government in these weste rn liberal democracies are, in accordance with the ingrained
acceptance of the separation of powers doctrine, complied with, without attempts by
the executive to subvert the independence of the judiciary. This is not so in a number
of other Commonwealth c ountries. Quite often when the judiciary in these countries is
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* Sir John Latham Professor of La w, Monash University. This article is a revised and
expanded version of a public lecture delivered on 18 November 2008 a t the Western
Australia Constitutional Centre and chaired by the Hon Chief Justice Robert F rench of the
High Court of Australia. The lecture was a joint venture between the Australian
Association of Constitutional Law, the Constitutional Centre of Western Australia and the
University of Western Australia.
1 Leslie Zines, Constitutional Change in the Commonwealth (1991).
2 Ibid 1. For a discussion of the date of Australia's independence, see George Winterton, 'The
Acquisition of Independence' and Geoffrey Lindell, 'Further Reflections on the Date of the
Acquisition of Australia's Independence' in Robert French, Geoffrey Lindell and Cheryl
Saunders (eds), Reflections on the Australian Constitution (2003) 31 and 51, respectively.
372 Federal Law Review Volume 38
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drawn into a role as arbiter between contending political factions in a power struggle,
the judiciary ends up with its reputation in tatters.
In this article, it is intended to explore a spectrum of controversies which have
affected the judiciaries of a number of countries which had emerged from their co lonial
cocoon post-World War II. A perusal of the crises which have engulfed t he judiciary in
a number of countries around the world helps to remind us of how lucky we are in
Australia where a n independent judiciary is taken as a given. These crises illustr ate in
a graphic manner the actual meaning of judicial independence and the severe
consequences for the citizenry when it is threatened. The broad les son emanating from
this excursus points to the need, even in established liberal democracies, for constant
vigilance to confront exec utive attempts, subtle an d not so subtle, to subvert the
judicial institution.
The new nations which emerged from British colonial rule were generally
bequeathed a sound legal system and an independent judiciary and many of these new
nations also drew from the well of the common law. The local people who to ok up
judicial appointments supplanted the colonial judges. Nevertheless, these local judges
were mostly educated in English law schools and the Inns of Court. They were imbued
with the notion of the rule of law. They were justifiably proud of tapping into a legal
tradition of judicial independence harking back t o the time of Chief Justice Coke. In
confronting an angr y King James I, Coke stated that the King was not under man, but
under God and the law. The refusal by Coke to bend to the wishes of King James I led
to Coke's ultimate downfall — he was dismissed from office.3
II A CONSPECTUS OF COUNTRIES WITH JUDICIAL CRISES
Today, the role of a King James I is manifested from time to time by the executive
branch of government in a number of emergent nations. Judiciaries in those countries
where the military frequently intervenes in the government of t he state are often in a
predicament. The challenge in the courts to the validity of emergency acts performed
in the name of the national interest does not often embroil the judiciary in a crisis but
rather embroil the deciding judges in a crisis of judicial conscience. A deferential
attitude is adopted, with judges proclaiming that in matters of natio nal security the
executive knows best. On 9 October 2008, the High Court of Fiji at Suva in Qarase v
Bainimarama4 declared that the decision of the President to ratify the dismissal of the
Prime Minister (Laisenia Qarase) and his ministers, to appoint a Caretaker Prime
Minister (Dr Senilagakali) to advise the dissolution of Parliament, and the dissolution
of Parliament itself, were valid and lawful acts made pursuant to the prerogative
powers of the Head of State to act for the public good in a crisis. However, on 9 April
2009, the Fijian Court of Appeal 'overturned the High Court's judgment and declared
unlawful the assumption of executive authority by Bainimarama, the dismissal of
Qarase, the dissolution of Parliament, the appointment of the interim government and
the ratificatio n of these acts by the President'.5 This Fijian episode illustrates that the
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3 Catherine Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (1552 –1634)
(1956) 304–5. See also H P Lee, 'The Judges and Constitutional Government' [2001]
LAWASIA Journal 30, 30–1.
4 [2008] FJHC 241.
5 Anne Twomey, 'The Fijian Coup Cases: The Constitution, Reserve Powers and the Doctrine
of Necessity' (2009) 83 Australian Law Journal 319, 325.
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