Separation anxiety

PUBLISHED : Friday, 23 January, 2009, 12:00am
UPDATED : Friday, 23 January, 2009, 12:00am

The clear signal from Chief Justice Andrew Li Kwok-nang that the judiciary must keep itself at arm's length from the executive could not have come at a more appropriate time. Look around Asia and all too often one sees that the huge progress made towards liberal democracy is being undermined by use of the judiciary for political ends, eroding democracy directly or via loss of people's faith in the wider system of government.

The separation of judicial and executive power lies at the heart of our system, enshrined in the Basic Law. Without it, any progress Hong Kong makes towards universal and equal suffrage will be worthless. Defending it will require extreme vigilance; first, because it is anathema to a mainland system that acknowledges only one source of ultimate power - the party - which often requires judicial (not to mention police) decisions to be made in accordance with the party's overriding needs, rather than the specifics of a case (hence the suppression of media reports of corruption in high places). Second, because it is contrary to the interests of a self-aggrandising Hong Kong bureaucracy whose tentacles are reaching further and further into the economic structure.

Asia has several current examples of the negative impact that a politically aligned judiciary can have on national stability and the validity of democracy.

Close by, Taiwan is in danger of seeing its 20 years of constitutional progress eroded by the behaviour of some of its judicial officials in respect of the charges against former president Chen Shui-bian. Whether or not Chen is guilty of money laundering and related offences, a Kuomintang-dominated system is turning the case into an apparently politically inspired witch-hunt. It is particularly one-sided given the system's failure to prosecute KMT corruption - not least when Ma Ying-jeou was justice minister under former president Lee Teng-hui.

In Thailand, Thaksin Shinawatra's efforts to get around the clauses in the 1997 constitution to subject the executive to checks and balances have now come home to haunt him - and Thai democracy. The elected government was recently removed by a mix of contrived judicial decisions throwing out two prime ministers, and police and military collusion with protesters paralysing Bangkok airports. The notion that the current government will follow the rule of law is as hypocritical as its use of lese-majeste prosecutions against political opponents.

If the monarchy is simply a tool of elite factions, it could eventually easily go the way of neighbouring ones in Laos and Vietnam.

In Malaysia, there has been a fightback against the control of the judiciary exercised by former prime minister Mahathir Mohamad after purging independent judges. However, efforts to restore its independence promised by his successor, Abdullah Badawi, have faltered. The respected lawyer Zaid Ibrahim, appointed to clean it up, quit in frustration.

In the Philippines, there is an almost constant struggle among politicians on all sides to use the judiciary both for and against the president. As a result, the judiciary has assumed much power but lacks the necessary gravitas to be viewed as a neutral and respected guardian of the rules of political engagement.

Its role in the ousting of former president Joseph Estrada remains controversial and, for many, suggests that judges are as prone as presidents to misuse their powers.

Indonesia's democracy is relatively healthy despite a judiciary widely regarded as corrupt, for money rather than power.

Meanwhile, Singapore boasts a clean judiciary but one whose proclaimed independence from political pressures is regarded as a bad joke by many, not just the opposition politicians who have suffered from Minister Mentor Lee Kuan Yew's libel suits.

There are three lessons for the judiciary: the first is that separation from the executive is critical; second, that it must refrain from seeing itself as a maker rather than interpreter of laws; and, third, it must avoid identification with any particular political or economic interest group.

Given Hong Kong's particular circumstances, the first of these is by far the most important.

Philip Bowring is a Hong Kong-based journalist and commentator