Some in the legal fraternity ponder over the appointment of our new Chief Justice recently. With one retired and the short tenure of the new one, who should take over subsequently? Like it or not, the CJ can control the judiciary. Since 1988, the tension between the Executive and the Judiciary is the result – I would say the inevitable result of the doctrine of separation of powers that may “disturb” the affairs of the government of the day. Legally and strictly under that doctrine, the political system of a nation divides its governmental power between a legislature, an executive and a judiciary. In theory, the doctrine constructs a system that avoids concentrating too much power in any one body of government – the three powers are separated from one another and none is supposed to trespass into the other’s province. Furthermore, no arm of government is supposed to abdicate power to another arm. The premise of this construct is not a harmonious relationship but a checking and balancing of power. Inevitably, the checking provides the blueprint for, and generates, tension between the three arms of government.
Political theory regard this tension between the arms of power as indicating a healthy and well-oiled, working government. They do not see the tension as a cause for alarm. Writing extra-judicially, Lord Woolf has said:
“the tension … is acceptable because it demonstrates that the courts are performing their role of ensuring that the actions of the Government of the day are being taken in accordance with the law. The tension is a necessary consequence of maintaining the balance of power between the legislature, the executive and the judiciary …”
Lord Woolf has also said that the tension between the arms of government is:
“… no more than that created by the unseen chains which … hold the three spheres of government in position. If one chain slackens, then another needs to take the strain. However, so long as there is no danger of the chains breaking, the fact that this happens is not a manifestation of weakness but of strength.”
Tension between the Executive and the Judiciary is inevitable. It is unrealistic to think that it can be eliminated. But it can be reduced, if the Executive and the Judiciary recognise that each has a role to perform and that each is better equipped to carry it out than the other. For the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly.