Global Courant
Forgive me if I begin by stating the obvious fact that no political system devised by humanity, or even woman, has yet been without error.
Autocrats will, by definition, disagree with this statement. The world has yet to encounter a divine dictator; while many volunteer, none are called.
Democrats, like Winston Churchill, argue that despite the shortcomings, 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 given to an independent judiciary to test the fairness of measures taken to to govern the electorate, the process known as judicial review.
The concept of systemic checks and balances within a system of government based on popular elections is essential if those elected to power are to be prevented from transforming their elected status into absolute power.
I fully recognize that there are political philosophies who believe that their concept of government is beyond question or doubt and that the mechanism of judicial review is therefore irrelevant.
The pure Marxist theory is that within a communist society the law will wither by itself.
However, there are numerous examples, coming from countries as diverse as Hungary, Pakistan, Ireland and Israel, whose respective courts regularly rule against the validity of both legislative and executive measures, usually because such acts fall outside their legitimate powers.
Empowered politicians abhor these restrictions.
Thwarted by the abuse or overstepping of their power, these “servants of the people” rant against the judges, complaining, “Who are these unelected figures who have the audacity to challenge those chosen by the people to to govern?”
A good example of politicians’ reaction to having their wings clipped was the Daily Mail, former Prime Minister Boris Johnson’s poodle paper, which in 2017 labeled three English Court of Appeal judges as “Enemies of the people.”
This politically inspired attack on the judiciary was the result of Johnson’s attempt to bypass parliament to trigger Article 50 and European Union. The judges had ruled that the government had to get permission from parliament before it could take such a step.
The absurd irony of Johnson’s failed attempt to use the Crown’s prerogative powers to evade parliamentary scrutiny was that parliament’s sovereignty was a central concern of Brexit campaigners.
It is too easily overlooked that the English judges did not come to this decision themselves, but did so in response to a citizen’s request for judicial review of the government’s proposed course of action.
What is regularly overlooked or ignored by those who wish to forgo judicial oversight of executive excesses is that the court tests the integrity of the process by which these actions are achieved; the judiciary does not venture into government policy.
The scope of judicial review is strictly limited to analyzing the decision-making process. So if material facts or matters have been ignored, or irrelevant matters considered, more often than not the court will declare the decision to be fundamentally flawed and overturn it.
An even more egregious error is when the executive has acted as judge and jury in a fact-finding investigation challenging its own actions.
The essence of the legal tests against which judges measure the integrity of a government’s decision-making process is based on absolute concepts of fairness.
Thus it is that governments that seek to curtail the discretionary powers of their respective judiciaries are moving toward unrestricted rule.
This is usually a prelude to removing any obstacle to the exercise of absolute power.
Israeli Prime Minister Benjamin Netanyahu sparked a hornets’ nest of protest when he, along with his extremist partners, proposed not only curtailing the powers of Israel’s judiciary, but also applying strict political control over judicial appointments.
Hungary’s Victor Orban has rrymanded the country’s judiciary with the same goal.
I may have overlooked something, but in my opinion testing the validity of institutional acts or omissions by reference to elementary concepts of justice is, or certainly should be, universally applicable. After all, these are absolute standards.
Measured against this standard, leaders’ attempts to put constitutional courts in a straitjacket, or populate them with judges who adjust their judgments to the fashion of the leader, prove who the people’s true enemies are.
History is replete with examples of this abuse of power by those elected to the highest office: Benito Mussolini, Adolf Hitler, and their modern-day legatees such as Vladimir Putin, Victor Orban, and Benjamin Netanyahu, to name a few.
No liberal democracy is safe from political tricks to paralyze judicial oversight.
Constitutional scholar Gautam Bhatia points to the unprecedented frequency and intensity of Prime Minister Narendra Modi’s government’s attacks on India’s Supreme Court ruling that there is a basic structure of the constitution that is beyond the power of parliament to amend.
As Bhatia puts it, this structure is “widely seen as an important bulwark against a totalitarian dismantling of the constitution.”
The United States, the supposed leader of Western democracy, has populated its Supreme Court with jurists who identify with the ideology of the more extreme faction of one of the two dominant political parties. Is this less blatant than what Netanyahu is trying to do in Israel or Modi in India?
Beware of those who would close the lamp of righteousness.
Neville Sarony QC is a well-known lawyer from Hong Kong.
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