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Judiciaries in Crisis — Some Comparative Perspectives

Published online by Cambridge University Press:  24 January 2025

H P Lee
H P Lee*
Affiliation:
Monash University
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Extract

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 both 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, 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, Australia and New Zealand share the common feature of the perplexing difficulty of pin-pointing an exact date when these countries obtained their independence from Britain. In other countries which were former British colonies, the date of independence could largely be identified by the date when the Union Jack was lowered and a new national flag was unfurled.

Type
Research Article
Information
Federal Law Review , Volume 38 , Issue 3 , September 2010 , pp. 371 - 389
Copyright
Copyright © 2010 The Australian National University

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Footnotes

This article is a revised and expanded version of a public lecture delivered on 18 November 2008 at the Western Australia Constitutional Centre and chaired by the Hon Chief Justice Robert French 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.

References

1 Leslie, Zines, Constitutional Change in the Commonwealth (1991)Google Scholar.

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 51Google Scholar, respectively.

3 Catherine, Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (1552–1634) (1956) 304–5Google Scholar. See also H P, Lee, ‘The Judges and Constitutional Government’ [2001] LAWASIA Journal 30Google Scholar, 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, 325Google Scholar.

6 Ibid 327.

7 In such circumstances, the judges could conceivably continue to perform their normal independent role in non-politically controversial cases.

8 AIR 1967 SC 1643.

9 T R, Andhyarujina, ‘Judicial Accountability: India's Methods and Experience’ in Cyrus, Das and Kanagasabai, Chandra (eds), Judges and Judicial Accountability (2003) 101, 105Google Scholar (citations omitted).

10 Article 39 provides as follows: ‘Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing …

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment …’

11 AIR 1973 SC 1461.

12 For a discussion of the Fundamental Rights Case, see generally, David, Gwynn Morgan, ‘The Indian “Essential Features” Case’ (1981) 30 International and Comparative Law Quarterly 307Google Scholar.

13 Justice, K S Hegde, Crisis in Indian Judiciary (1973) 2Google Scholar.

14 SirHarry, Gibbs, ‘The Appointment and Removal of Judges’ (1987) 17 Federal Law Review 141Google Scholar, 143–4.

15 Shelat, Hegde and Grover JJ.

16 Nani, Ardeshir Palkhivala, Our Constitution Defaced and Defiled (1974) 94Google Scholar.

17 AIR 1976 SC 1207.

18 Soli J Sorabjee, The Great Dissenter (2009) Indian Express <http://www.indianexpress.com/news/the-great-dissenter/430826/0> at 30 September 2010.

19 Ibid.

20 Arun, K Thiruvengadam, ‘Asian Judiciaries and Emergency Powers: Reasons for Optimism?’ in Victor, V Ramraj and Arun, K Thiruvengadam (eds), Emergency Powers in Asia: Exploring the Limits of Legality (2010) 466, 492Google Scholar.

21 Chief Justice K G Balakrishnan, ‘Address by Hon'ble the Chief Justice of India at the Full Court Reference Held in the Memory of Late Hon'ble Mr Justice H R Khanna, Former Judge, Supreme Court of India on 5th March, 2008 at 10.30 am’ (Speech delivered at the Full Court Reference Held in the Memory of Late Honourable Mr Justice H R Khanna, Supreme Court of India, 5 March 2008) <http://www.supremecourtofindia.nic.in/speeches/speeches_2008/Justice%20Khanna.pdf> at 30 September 2010.

22 Andhyarujina, above n 9, 111.

23 Ibid.

24 In the case of appointment of Supreme Court Judges, art 124(2) provides:

‘Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.’

In the case of appointment of High Court Judges, art 217(1) provides:

‘Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.’

25 AIR 1982 SC 149.

26 AIR 1994 SC 268.

27 Andhyarujina, above n 9, 115. See also Sarkar, Ali Akkas, ‘Appointment of Judges: A Key Issue of Judicial Independence’ (2004) 16 Bond Law Review 200Google Scholar, 206.

28 AIR 1999 SC 1.

29 Andhyarujina, above n 9, 118.

30 For failed attempts, see the Constitution (67th amendment) Bill 1990 and the Constitution (98th amendment) Bill 2003. These Bills sought to establish a National Judicial Commission to deal with the appointment of Supreme Court and High Court judges and the transfer of judges from the High Court.

31 See, eg, Visu, Sinnadurai, ‘The 1988 Judiciary Crisis and its Aftermath’ in Andrew, Harding and H P, Lee (eds), Constitutional Landmarks in Malaysia — The First 50 Years 1957-2007 (2007) 173Google Scholar; Andrew, Harding, ‘The 1988 Constitutional Crisis in Malaysia’ (1990) 39 International and Comparative Law Quarterly 57Google Scholar; Francis, A Trindade, ‘The Removal of the Malaysian Judges’ (1990) 106 Law Quarterly Review 51Google Scholar; H P, Lee, Constitutional Conflicts in Contemporary Malaysia (1995)Google Scholar Ch 3.

32 Berthelsen v Director-General of Immigration, Malaysia & Ors [1987] 1 MLJ 134.

33 Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311–16 (High Court) and 316–30 (Supreme Court).

34 Lee, above n 31, 44.

35 Tun, Salleh Abas, The Role of the Independent Judiciary (1989) 46–7Google Scholar (emphasis added).

36 ‘A Report by the Bar Council on the Report of the Tribunal Established in Respect of Tun Mohamed Salleh Abas', 3; reproduced in (1988) XXINSAF: The Journal of the Malaysian Bar 30, 32.

37 Geoffrey Robertson, ‘Justice hangs in the Balance', The Observer (London), 28 August 1988, 22.

38 These incidents are described in details in Sinnadurai, above n 31, 186–94.

39 Geoffrey Bindman, ‘A Disturbing Picture’ (1994) New Law Journal, November 18, 1599, 1600.

40 [1995] 2 MLJ 734; Insas BHD & Anor v Ayer Molek Rubber Co Bhd & Ors [1995] 2 MLJ 833.

41 Wu, Min Aun, ‘Judiciary at the Crossroads’ in Wu, Min Aun (ed), Public Law in Contemporary Malaysia (1999) 76, 97Google Scholar.

42 Dato’ V Kanagalingam v David Samuels, Joff Wild, Robert Menzies Walker & Euromoney Publications PLC [2006] 6 MLJ 521, [22]–[32]. See Sinnadurai, above n 31, 192–4.

43 [2006] 5 AMR 402, 415.

44 Datuk Seri Abdullah bin Haji Ahmad Badawi, ‘Delivering Justice, Renewing Trust’ (Speech delivered at the Malaysian Bar Council Dinner, Kuala Lumpur, 17 April 2008) <http://www.pmo.gov.my/ucapan/?m=p&p=paklah&id=3173> at 20 September 2010.

45 Anil, Kalhan, ‘Constitution and “Extraconstitution“: Colonial Emergency Regimes in Postcolonial India and Pakistan’ in Victor, V Ramraj and Arun, K Thiruvengadam (eds), Emergency Powers in Asia: Exploring the Limits of Legality (2010) 89, 94Google Scholar.

46 Kersi B Shroff and Krishan S Nehra, Suspension and Reinstatement of the Chief Justice of Pakistan: From Judicial Crisis to Restoring Judicial Independence? (2009) Library of Congress <http://www.loc.gov/law/help/pakistan-justice.php> at 5 February 2009.

47 Ibid.

48 Kalhan, above n 45, 95.

49 Shroff and Nehra, above n 46.

50 Kalhan, above n 45, 98–9.

51 BBC News, Pakistan Reinstates Sacked Judge (2009) <http://news.bbc.co.uk/2/hi/7945294.stm> at 30 June 10.

52 Niaz, A Shah, ‘The Rule of Law in Pakistan’ (2009) 20 Public Law Review 187, 191Google Scholar.

53 Constitution Petition Nos 76 to 80 of 2007 & 59/2009.

54 Steve Czajkowski, Pakistan Supreme Court Challenges President's Judicial Appointments (2010) Jurist <http://jurist.law.pitt.edu/paperchase/2010/02/pakistan-supreme-court-challenges.php> at 13 February 2010; Mirza Shahzad Akbar and Moeen H Cheema, ‘New Judges’ Case in the Making?’ (2010) The News <http://www.pkcolumns.com/2010/02/02/new-judges%E2%80%99-case-in-the-making-mirza-shahzad-akbar-moeen-h-cheema/> at 22 October 2010.

55 Akbar and Cheema, above n 54; Al-jehad Trust v Federation of Pakistan PLD 1996 SC 324.

56 Akbar and Cheema, above n 54.

57 See Moeen Cheema and Shazad Akbar, Pakistan: New ‘Judges’ Case’ in the Making? (2010) Jurist [Postscript] <http://jurist.org/forumy/2010/02/pakistan-new-judges-case-in-making.php> at 1 July 2010.

58 Dato’, Param Cumaraswamy, ‘Judicial Independence: In Search of Public Trust’ (2003) XXXII (4) INSAF: The Journal of the Malaysian Bar 55, 71Google Scholar.

59 See Neeraj Tiwari, ‘Appointment of Judges in Higher Judiciary: An Interpretational Riddle’ (26 January 2010). Available at SSRN: http//ssrn.com/abstract=1485395. Posted: 11 October 2009. Last Revised: 28 January 2010.

60 Law Commission of India, Proposal for Reconsideration of Judges Cases I, II and III, Report No 214 (2008).

61 Ibid 49.

62 Ibid 60.

63 Aman Ki Asha, ‘India Also Considering Changes in the System of Judicial Appointments’ (2010) The News <http://www/thenews.com.pk/blog/blog_details.asp?id=648> at 1 July 2010.

64 Constitution of Malaysia, art 122B(1).

65 His Royal Highness, Sultan Azlan Shah, ‘The Role of Constitutional Rulers and the Judiciary: Revisited’ in Dato’ Seri, Visu Sinnadurai (ed), Constitutional Monarchy, Rule of Law and Good Governance (2004) 385, 397Google Scholar.

66 Furthermore, doubts that have been expressed about its constitutionality hang over the legislation creating the commission.

67 Colin Cookman, The 18th Amendment and Pakistan's Political Transitions (2010) Center for American Progress <http://www.americanprogress.org/issues/2010/04/pakistan_political_transitions.html> at 1 July 2010.

68 DAWN, Another Challenge to the 18th Amendment (2010) <http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/local/lahore/another-challenge-to-18th-amendment-660> at 20 September 2010.

69 Constitution of India art 124(4).

70 Constitution of Pakistan art 209.

71 R E, McGarvie, ‘The Foundations of Judicial Independence in a Modern Democracy’ (1991) 1 Journal of Judicial Administration 3, 11Google Scholar.

72 See Geoffrey, Lindell, ‘The Murphy Affair in Retrospect’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (2003) 280, 281Google Scholar.

73 Constitutional Commission, Final Report Volume 2 (1988) 402Google Scholar.

74 McGarvie, above n 71, 14.

75 SirNinian, Stephen, ‘Southey Memorial Lecture 1981: Judicial Independence — A Fragile Bastion’ (1982) 13 Melbourne University Law Review 334, 338Google Scholar.

76 Lee, Constitutional Conflicts in Contemporary Malaysia, above n 31, 76.