COMMENT Whenever any country claims that its political system provides for a diffusion and separation of powers between different branches of government rather than the centralisation of power in its executive branch, the question that follows is whether decisions of the political branches of government, that is the executive and legislature, are constantly and regularly set aside by the judiciary.

In other words, can state action be successfully challenged in the courts in a consistent fashion? Thus, judicial independence is the pillar of a truly functioning democracy because of the accountability of state organs to the courts. In such a society, the blindfolded lady carrying the scales of justice treats all litigants similarly, not placing the executive in an exalted status.

In just two weeks, the courts in Britain and the United States did so with aplomb in the most publicised manner possible - indeed their sittings were televised ‘live’ and recorded for posterity.

First, the Brexit litigation. The sole legal question for the courts in Britain was whether Theresa May’s administration was obliged to present a Bill in Parliament, resulting in Parliament enacting an Act authorising Britain to formally trigger the Article 50 notice as the first step towards the withdrawal of Britain from the European Union.

Two courts ruled against her administration. All in all, 11 judges found against the government, while three supported it. Both courts in determining the issue were not concerned with technical or procedural issues like ‘locus standi’ or standing of the Plaintiff, whether it was justiciable because of its ‘political’ nature and other peripheral issues.

Rather, the judges took their oath of office seriously and responsibly, dealing with the myriad of complex, novel constitutional issues in masterful fashion in their written reasons.

The gutter press slammed the judges, claiming that they were not respecting the will of the people expressed in the referendum. That was freedom of the press, even if expressed in extreme and emotive language. No one threatened contempt of court. May’s administration never criticised the outcome, and immediately complied by presenting a bill to Parliament.

The House of Commons has passed it. It is now before the upper House, and after it is passed there, the Queen will sign it into law, all well in time for the Article 50 notice to be trigged by the end of March 2017, as scheduled.

From a distance, with the resultant objectivity, one can only marvel how well the British constitution actually worked. Despite all the noise, the system performed calmly and seamlessly.

Next, the litigation in the United States concerning the 90 day ban on citizens from seven countries entering the US. Here the litigants challenging the ban are not private persons pursuing their own claims. Instead, the government of the State of Washington, joined by Minnesota, sued on behalf of foreigners who had studied, worked or visited their state and who were affected by the ban.

The court of first instance granted a Temporary Restraining Order (‘TRO), equivalent to our Interlocutory Injunction, restraining the US government from acting on the ban, until the dispute on its merits were determined by the court, a process that could take months. The decision was upheld by the appellate court. Hence, all four judges ruled against the Donald Trump administration.