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Separation of Powers & Judicial Independance June 13, 2007

Posted by Ned Stark in Uncategorized.

Recently Benjamin the Debater did a well thought out piece on his vision of Singapore. In fact my learned friend Guojun and I have been thinking of doing such a post but because Guojun is a rather busy man and I a rather lazy fellow thus nothing has been done. Of note was his point about the empowerment of the judiciary; a tour of the blogosphere will reveal that judicial independance in Singapore is often discussed.

It appears that it is a common view that there is a direct correlation between the separation of powers and the independance of the judiciary. The separation of powers is seen as an important concept in a democracy because it allows different arms to act as a check and balance.

However, a recent event shows that it may  be too premature to conclude that separation of powers could lead to judicial independance;namely the recent Supreme Court ruling that the sleeper agent could not be held without charge. While it appears to be a prima facie situation where the Judiciary has checked the “tyranny” of the Executive. However it appears that the ruling was upheld with a 2:1 majority, with the 2 Supreme Court judges having been appointed by Bill Clinton (Democrat) and the lone dissenter having been appointed by Bush Jr (GOP). Thus there is a possibility of voting along the party lines and if true then it appears that there is no de facto separation of powers! Moreover, during the 2000 General Elections, there was a dispute regarding the votes in Florida. The Supreme Court of Florida then ruled with a 5:4 majority that there was no need for a manual recount. Apparently it appeared that the voting was along partisan lines and luckily for Bush there were more conservatives than the 4 liberals. So much for independance.

However even without a separation of powers there still can be judicial independance with a judiciary acting as a check and balance. Take a look at the United Kingdom, one of the oldest monarchies. Rather than a separation of powers, the system in UK is more akin to a fusion of powers.

 However that has not castrated judicial independance in anyway. The British Judiciary has had a history of independance and has acted as a check and balance in times past. Henry Bracton (1200-1268), a Judge during the reign of Henry III who said that :

The King is under no man, but God and the Law

Since then, Bracton has been quoted time and time again; namely by Sir Edward Coke, during his tenure as Chief Justice, when King James I Stuart attempted to meddle in judicial affairs. It was this principle which resulted in the trial and eventual execution of King Charles I. The Judiciary of England have shown to be vigilant against abuses of power and thus have acted as a rather effective check; notwithstanding the system of fusion of powers.

Therefore if there is to be a discussion on judicial independance in Singapore, it might be better to compare it to the Judiciary of England and Wales. The example shows that despite the lack of a separation of powers, the judiciary still and has acted as a check and balance. Ultimately the issue of judicial independance boils down to the quality of the individual judges and the character of the judiciary as a whole. If for instance the judiciary are a group of people not dissimilar to that of the “typical” civil servant (for example they tend to groupthink and so on), then it is unlikely that they will be an effective check.



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