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.

Not troubled by procedural and technical issues

As in Britain, both courts were not troubled by procedural and technical issues like standing, justiciability or ‘political’ aspects. Considering that they were only dealing with the issue whether the TRO granted by the lower court should remain in force (and not on the merits of the dispute) the reasoning in their 29-page judgment is impressive in its scholarship - a first class product.

The major difference between the British and American litigation was the reaction of the Leader of the Executive. However disappointed she may have been, Prime Minister Theresa May never criticised the decisions, thereby respecting the independence of the judiciary. President Donald Trump, on the other hand, behaved as the whole world expected him to, like the bullying sore loser he has always been.

He also criticised the judges personally, describing them as “so-called judges”. When the president of the United States publicly berates the courts, the fragile bastion that is the judiciary is usually weakened. From his most divisive and disruptive campaign, to his actions and statements after taking office, Trump has polarised the nation, as never before.

When he criticised the courts, segments of those who voted for him, also support him on this issue, which undermines public confidence in the institution.

Common law, which originated in Britain, was developed by judges making decisions that accumulated into a whole body of law over centuries. It was exported to the US, and to the entire British empire. Nearly all the countries that secured independence from the Britain after the 2nd World War voluntarily adopted the common law system because of its overall fairness and sense of justice.

Malaysia, along with numerous countries in all continents are part of the common law world. But the tragedy is that very of few these common law countries enjoy genuine separation of powers, the first requirement of which is judicial independence. Sadly, only a few courts in countries, described usually as the mature or senior members of the Commonwealth, would have acted similarly. The vast majority would not have.

TOMMY THOMAS is a senior lawyer, who occasionally writes on political and economic matters.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.