Judiciary And The Quest For Absolute Fairness

(MENAFN- Asia Times) Forgive me if I begin by stating the obvious fact that as yet, no Political system devised by mankind, or indeed womankind, is flawless.

Autocrats will, by definition, disagree with this proposition. The world has yet to encounter a Divine Dictator; though many volunteer themselves, none are called.

Democrats, like Winston Churchill, contend that despite its faults, theirs is the best model.

The one feature of a liberal democracy that commends itself to many if not most of those subject to its rule is the power gifted to an independent judiciary to test the fairness of the measures taken to govern the electorate, the process known as
judicial review.

The concept of systemic checks and balances within a system of government founded on popular election is essential if those elected into power are to be restrained from leveraging their elected status into absolute power.

I fully recognize that there are political philosophies that believe their concept of government is beyond question or doubt and, therefore, that the mechanism of judicial review is irrelevant.

Pure Marxist theory is that the law will wither away of its own accord within a communist society.

There are, however, countless examples, drawn from countries as disparate as Hungary, Pakistan, Ireland and Israel, whose respective judiciaries regularly rule against the validity of both legislative and executive action, usually because
such acts are outside their legitimate powers.

Empowered politicians detest these constraints.

Foiled from abusing or exceeding their power, these“servants of the people” rail against the judges, complaining,“Who are these unelected figures who have the temerity to challenge those chosen by the people to rule?”

A good example of the reaction of politicians to having their wings clipped was former prime minister Boris Johnson's poodle newspaper, the Daily Mail,
in 2017 labeling three English Court of Appeal judges as“enemies of the people .”

This politically inspired attack on the judiciary resulted from Johnson's attempt to bypass Parliament in order to trigger Article 50 and exit the
european union .
The judges had ruled that the government had to gain the consent of
before it could take such a step.

The absurd irony of Johnson's failed attempt to use the prerogative powers of the Crown to evade parliamentary scrutiny was that the sovereignty of parliament was a central plank of the Brexit campaigners.

It is too readily overlooked that the English judges did not initiate this ruling themselves but did so in response to an application by a member of the public for judicial review of the government's proposed course of action.

What is regularly overlooked or ignored by those who want to dispense with judicial oversight of executive excesses is that the court tests the integrity of the very process by which the these actions are reached; the judiciary does not venture into the field of government policy.

The ambit of judicial review is strictly limited to analyzing the decision-making process. So if material facts or matters have been ignored, or irrelevant issues have been taken into consideration, the court will, more often than not, declare that the decision is fundamentally flawed and nullify it.

An even more blatant error is where the executive has acted as judge and jury in a fact-finding exercise in which its own acts are challenged.

The essence of the judicial tests against which the judges measure the integrity of a government's
decision-making process is founded in absolute concepts of fairness.

So it is that governments seeking to constrain the review powers of their respective judiciaries are set on a path to untrammeled rule.

This is usually a prelude to the removal of any obstacle to wielding absolute power.

Israeli Prime Minister Benjamin Netanyahu stirred up a hornet's nest of protest when, together with his extremist partners, he proposed not only to curtail the Israeli judiciary's powers but to exercise close political control over judicial appointments.

Hungary's Victor Orban has been gerrymandering the country's judiciary with the same objective.

Perhaps I have overlooked something but, to my mind, testing the validity of institutional acts or omissions by reference to elementary concepts of fairness is, or certainly ought to be, of universal application. After all, these are absolute standards.

Set against this yardstick, the endeavors of leaders to straitjacket constitutional courts, or populate them with judges who tailor their judgments to serve the leader's fashion, evidences who are the true enemies of the people.

History is replete with exemplars of this abuse of power by those elected into the highest office: Benito Mussolini, Adolf Hitler and their latter-day legatees such as Vladimir Putin, Victor Orban and Benjamin Netanyahu, to name but a few.

No liberal democracy is safe from political ploys to hamstring judicial oversight.

The constitutional scholar Gautam Bhatia points to the unprecedented frequency and intensity of the attacks by Prime Minister Narendra Modi's government on the Indian Supreme Court's ruling that there is a basic structure of the constitution beyond Parliament's competence to amend.

As Bhatia expresses it,
this structure is“widely perceived to be an important bulwark against a totalitarian evisceration of the constitution.”

The United States, the putative leader of Western democracy, has populated its Supreme Court with jurists who identify with the ideology of the more extreme faction of one of its two dominant political parties. Is this any less egregious than what Netanyahu is trying to do in Israel or Modi in India?

Beware those who would shutter the lamp of justice.

Neville Sarony QC is a noted Hong Kong lawyer.

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