Tuesday 11 February 2014

The recent furore in Queensland over laws that allow politicians to overturn judgements of a court in relation to sex offenders has led to allegations that the judiciary is out of touch with reality and that the constitutional doctrine of the separation of powers is not applicable.

The legislation was ultimately held to be invalid by the Queensland Court of Appeal, thus affirming this essential legal principle. But I have seen firsthand some of the consequences of an absence of a formally independent and impartial judiciary in a society.

Recently, I had the privilege of leading a team of Australian lawyers on a legal mission trip to East Africa. We met a Supreme Court judge who reflected on a common saying in his country: “why pay a lawyer’s retainer when you can buy a judge?” He was lamenting the extent of corruption at the bench, and the two-tier system of justice, which delivered a short stay for rich offenders, and a long indeterminate pre-trial period for those unable to afford the bribe.

I later learned that this particular judge had been pilloried in the local government-run press for delivering judgements in favour of plaintiffs who had dared to take the government to court. I also learned, to my amazement, of the frequency of attacks by spontaneously formed mobs drawn from passers-by, who set upon and beat persons caught committing a crime. Where the public has no confidence in the courts to impartially deliver due process of law, the danger is that the mob will administer justice as it sees fit.

In The Book That Made Your World, Vishal Mangalwadi argues that the principle of the separation of powers, finds its forbear in the accountability of Saul to Samuel, of David to Nathan and of Ahab to Elijah. Reflecting on these limits on absolute power, English writer G. K. Chesterton observed in Orthodoxy that “The heart of humanity … is certainly much more satisfied by … the Trinitarian idea, the image of a council at which mercy pleads as well as justice, the conception of a sort of liberty and variety existing even in the inmost chamber of the world.”

To Chesterton, the Christian doctrine of original sin is the surest protection against autocracy. This acknowledges that what Plato referred to as the ‘benevolent dictator’ is impossible to assure. There is always the risk that sinful compulsion may outweigh benevolence, hence the need for a formal separation of powers and judicial independence.

The Bible consistently upholds the concept that there are limitations to be placed upon the actions of the State against the individual. Witness God’s condemnation of Saul’s attempts to murder David, or God’s judgement on David’s abuse of authority in his adultery with Bathsheba and murder of Uriah the Hittite. These important theoretical frameworks set part of the historical background against which our modern conceptions of separation of powers and checks on the power of the legislator were drawn.

Christians have a rich and diverse tapestry of thought that has made a significant contribution to the foundations of our modern democratic society. We would do well to remember the centrality of these foundations before contemplating any shade of variance.

This article is based on a recent address given to the Queensland Christian Lawyers Society. 

Mark Fowler is chair of CLEAR Australia. www.clear.org.au.

Image: Ray Allen/Flickr