Who is the master: the unelected judge or the elected politician?

— Lord Neuberger, former President of the Supreme Court, UK

TOTU refers to juridical abominations perpetrated by unelected lawyers who are elevated to the Bench. The irony that judges not elected by citizens but by Executive fiat morphs into utter disgust and angst when activist black robes pontificate like social engineers through questionable judgments that roam over the cultural, economic, moral and political terrains.

TOTU remains a government-sponsored aberration where minorities become cannon fodder despite human rights and fundamental liberties guaranteed in international treaties, covenants and declarations. Unless they are incorporated into national legislation, they are hardly recognisable as enforceable despite the Paris Principles (Principles Relating to the Status of National Human Rights Institutions) of October 1991.

Some maverick judges fight without fault, fib, fit, fever, fear or favour while tossing caution to the wind when studying the facts, all the facts, and nothing but the facts before applying “the law” regardless of whom it favours. These dauntless judges remain unperturbed of the Executive while rendering genuine justice.

Judicial review remains the sharpest arrow in the judicial quiver that can only be blunted by adverse legislation. The charge led in 1803 by Marbury v. Madison, 5 US 1 Cranch 13, has withstood political turmoil and tribulations till today. It is a functioning and faithful bastion of democracy until some special-interests legislatures decide otherwise.

Legalised purloining of Native American lands since the “eurosettlers” arrived is reported and recorded by hundreds of outlandish judgments by unelected judges courting political patronage and partisanship. The standard justification includes manifest destiny, conquest and discovery, the rule of and by law, supremacy of the US Constitution, and the all-time favourite mantra that “all men are created equal.”

Unelected judges acknowledging Executive patronage remain blissfully unaware that the ink of a scholar sheds more sacrifice than the blood of a martyr. Their brazen-faced judgments without intellectual honesty has caused widespread distrust of and utter disgust for government in most democracies.

Justice Antonin Scalia of the US Supreme Court seized the day: “As long as judges tinker with the Constitution to do what the people want, instead of what the document actually commands, politicians who pick and confirm federal judges will naturally want only those who agree with them politically.”

In America, it’s said that a federal judge is a lawyer who once knew the governor of his state. TOTU thrives as a necessary evil tacitly accepted by a suspicious community and a discerning society.

Judicial (mis)conduct allows Judge Jack Robison, District Court of Texas, to burst into a jury deliberation room one day, exclaiming that God told him the defendant was innocent!

US ex rel Gerald Mayo v. Satan and His Staff, 54 FRD 282 was dismissed because the judge declared it impossible to serve process upon Satan!

Nebraska Senator and activist Ernie Chambers made headline news when he filed a lawsuit against God for “death, destruction and terrorisation of millions of the Earth’s inhabitants.” Chambers filed the suit to show the importance of citizens being able to bring any complaint before a court of law. The case was dismissed because God did not have an address and could not be served with legal notice of the trial!

There will be a new day in a non-decadent newly-evolving democracy when tried and tested experienced lawyers are selected and elected by voters as prescribed by written law. The governed should decide.

Fearless judges practising judicious restraint should refuse to decide on a case because of an inappropriate or defective law, and insist on remanding it to the legislature for necessary adjustment, correction or amendment.

The judiciary initiating sua sponte action to right wrongs, without the need for a plaintiff with standing, like in India, is another great day for a proactively evolving democracy which ought to include non-lawyers empanelled to preside in judicial misconduct tribunals.

Clobbering contempt of court: “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny . . . even outspoken comments of ordinary people.” Ambard v. Attorney General of Trinidad & Tobago (1936) 1 All ER, AC 322 at 335, PC.

Factoid: James F Byrnes, Stanley F Reed, and Robert H Jackson of the United States Supreme Court did not possess law degrees. The 4th chief justice, the celebrated John Marshall, reportedly attended six-weeks of training under the legendary George Wyeth, the first American law professor.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.