— Art Harun
The Malaysian Insider
Feb 21, 2012
FEB 21 — In any Westminster-styled democracy, a country’s administration consists of three main machinations, namely, the Legislative, the Executive and the Judiciary. The Legislative makes laws. The Executive runs the country. Lastly, but by no means the least, the Judiciary adjudicates disputes and determines them.
The Judiciary does not only adjudicate disputes amongst private citizens but also, more importantly, disputes between the citizens and the Executive (the government). In a branch of law called “administrative law”, the Judiciary inherently has the power to issue four kinds of orders against the Executive. These are traditional judicial powers which are paramount towards ensuring that rules of law are complied with not only by the people but also by the Executive.
Firstly, the Court may issue a certiorari order to quash any decision of the Executive. Secondly, an order of prohibition may be issued to restrain the Executive from doing any act. These two orders are usually issued if the act complained of is illegal, improper or made without power (ultra vires). Thirdly, the Court may issue an order of mandamus to compel the Executive to do certain act.
Fourthly, and perhaps most importantly, a writ of habeas corpus, may be issued by the Court to compel the government to produce and free anybody who is improperly detained.
These are the traditional powers of the Judiciary. They exist for hundreds of years and have throughout the years been refined in order to keep up with the demands of modern governance. Continue reading “The emasculation of our judiciary”