Introduction

A free and independent judiciary is the sine qua non of any properly functioning democracy. Montesquieu (1748) said:

In America, James Madison, who midwifed the American Constitution, said in the Federalist Papers (1788), ‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ A judiciary servile to the executive – is that not the accumulation of all powers in the same hand?

The failure of the judiciary is ‘human, all too human’. Fear of the disapproval of superiors, ambition, prospects for advancement, all may play a part in the tendency of judicial decisions which consistently negate fundamental freedom. I have in my professional practice as an advocate found judicial officers in Malaysia generally pleasant and frequently regretful that politically motivated prosecutions are brought before them. But as a collective, the judiciary decided cases in a way that deprived citizens of their right of effectively protesting and questioning executive action.

I will show in this chapter that the above freedoms were rendered crippled and ineffective by the long line of illiberal judicial decisions – by a strange irony the very body created by the constitution to safeguard those freedoms became the means by which those freedoms were subverted, thus handing the people over to the tender mercies of an autocratic government.

The Ideal and the Actual in Judicial Practice

The reception of English law in Malaysia can be traced to the administration of Francis Light in Penang and thereafter in both Malacca and Singapore, the three regions collectively known as the Straits Settlements.