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Separation of Powers

Separation of powers is the division of the legislative, executive and judicial functions of government among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws.”          Encyclopaedia Britannica 2008 Ultimate Reference Suite

 

Derived by Enlightenment philosopher Charles Montesquieu, the separation of powers is a traditional concept of liberalism where, for the sake of limiting abuse of power, the three branches of government remain independent. In modern times the best examples are some American states where all branches have tangible power and, because of separate elections, no branch is appointed by nor can be removed by, another branch.

The term became a national talking point in 1989 when allegedly corrupt Queensland Premier Jo Bjelke-Petersen was being questioned in the Fitzgerald corruption inquiry, and on being asked to explain the doctrine of separation of powers responded by declaring he did not know what it meant.

 

A Public Appointed Judiciary

To manifest a separation of the judiciary from the clutches of both the executive and the legislature, as currently exists in Australia6, might initially leave us with a situation where judges and magistrates become a power unto themselves answerable to no one. This might not necessarily be altogether a great idea.

All power is, in Madison’s phrase, ‘of an encroaching nature.’…Judicial power is not immune against this human weakness.”    J Brennan, ex Chief Justice HCA#

 

The most fundamental tenet of democracy is that those who rule over us must also be accountable to us. Currently there are at least two countries (Japan and the United States) where the people can vote to arbitrarily remove judges, but surprisingly most democracies grant significant law making and other power to members of the judiciary who not only are not elected but also cannot be removed unless they are involved in serious misbehaviour that brings discredit to their office. In Victoria one would be hard pressed to name any judge who has been removed from the bench against his or her will.

As Sir Harry Gibbs said when he was Chief Justice of the Australian High Court:

 “… it is certainly not democratic that decisions on matters of social and economic policy should be made by unelected judges who are not accountable for their decisions except to their own consciences.”

Obviously what would be preferred is the practice, as exists in most American states, where judges who wish to have power over the citizenry, must first get their approval in an election.

As an improvement for democracy as this would be, there still may be a simpler method to attain accountability.

at the behest of the public

 

Rather than an election for every new judge and magistrate who has to be appointed and also removed where it is believed required, why not simply elect a judicial appointments board every election cycle to carry out such duties?

Popularly Elected Judicial Appointment Boards.

 

   Makeup of Board

    • Complement of an odd number: probably seven.
    • No prerequisites for applying such as qualifications, experience, or age1.
    • Members elected by block voting (each voter ticks seven names out of all those applying).
    • To minimise cost, elections run concurrent with parliamentary elections.

  Decisions of Board

    • Appoint and remove judges and magistrates at will2.
    • Decisions of Board members, while within purview of legislation, to be definitely not subject to appeal3.
    • Adjudicate on actual court cases4 where
      • A judge or magistrate is a party.5
      • A judge or magistrate is being challenged for bias.
    • Except where abstaining, every decision of a board member must go on public record together with reason.

 

       appointing and removing the judiciary

 

Notes

1. In practice probably only ex-judges would win the support of the public to be appointed anyway (apart from those with a history of controversy), but the door should always be left open to anyone who might win the confidence of the public.
2. The phrase ‘independence of the judiciary’ is often used in argument to oppose a premier or attorney-general trying to control the actions of certain members of the judiciary. The phrase historically relates to the separation of powers concept which, in turn, means that the executive, the judiciary, and the legislature are all independent of each other. ‘Independence of the judiciary’ does not mean that the judiciary are a power unto themselves and answerable to no one. In a democracy all government officials should be in one way or another, answerable to the people.
3. It would defeat the whole purpose of public accountability, if appeal court judges could quash a decision of the people’s representatives to remove a fellow judge from power.
4. It is not odd for a tribunal to have first instance jurisdiction. (not just reviewing a case but actually undertaking the case from the beginning. The British House of Lords (erstwhile highest appeal court in the UK) could also be a court of first instance.
5. It is a serious conflict of interest at present when judges rule in hearings involving their “brethren”, ie. fellow judges.
6. Any one who claims that the Australian judiciary now enjoy an independence might wish to answer the questions: who appoint them, and who has the power to remove them?

 

“Democracy means the greatest possible engagement by the people in the greatest possible range of communal tasks and public action. As people reclaim control over their own lives, they will develop an appetite and a talent for more. This rejects the prevailing pessimism about the competence of ordinary citizens; their present apathy and disaffection is a product of their current powerlessness rather than any natural infirmity.”*

# Attorney-General (NSW) v Quin  (1990) 170 CLR 1 at 42 per Brennan J quoting Frankfurter J.

* A C Hutchinson and P Monahan The Rule of Law: Ideal or Ideology (Carswell, Toronto, 1987) p.115

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