Lawyers Weekly, Vol. 21, No. 47, April 19, 2002. page 1.
The president of the Law Society of British Columbia says the case of a Malaysian defence lawyer who was charged with sedition for words spoken in open court should raise alarm bells in Canada about any moves to strengthen the power of the executive branch of government at the expense of the judiciary.
“For me, it is a real cautionary tale of the potential problems of a too strong executive,” said LSBC President Richard Gibbs, who attended lawyer Karpal Singh’s trial on January 14, in Kuala Lumpur as a representative of both the LSBC and the Canadian Federation of Law Societies.
Gibbs says the groundwork for Karpal’s sedition trial was set some 15 years ago when Malaysia’s already powerful executive, backed by a consistently submissive majority in parliament, took steps to solidify executive control through some 50 constitutional amendments and other measures. Malaysia was and remains ostensibly a constitutional monarchy with a parliamentary system.
“The Government of Malaysia really curbed the judiciary through the firing of the Lord President and the dismissal of anumber of judges and legislation placing the executive in control,” he said. This in turn made the judiciary more deferential to the executive, and the judiciary then subjugated the Malaysian Bar. Lawyers who, like Karpal Singh, do not toe the party line, face jail through contempt proceedings and prosecution for sedition.
In Canada, the judiciary is well entrenched, Gibbs observed, and “a straight out-and-out attempt to remove the Chief Justice would go nowhere.”
see KARPAL SINGH p.7
You are seeing some chipping away at it
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However, since Sept. 11, there are signs of Canada’s own executive governments taking steps to streamline control. “You are seeing some chipping away at it with, say, the [announced B.C.] courthouse closings, where the administrative independence of the judiciary is not that well entrenched.”
Gibbs said an area where the executive arm of government has a “tendency to encroach and overbear is in, for instance, the Proceeds of Crime (Money Laundering) Act, where they’re seeking to reconfigure the relationship between lawyers and clients.
“So, as I see it, Malaysia is a cautionary tale, especially given that the destruction of the proper balance between the executive, the judiciary and the Bar, occurred relative quickly.” He told of one Kuala Lumpur lawyer “who, surveying the change that had been wrought in a matter of weeks, said, ‘I thought it would be a lot more difficult than this to destroy the independence of the judiciary and the independence of the Bar.’
“This tells you that you resist the first encroachments on these proper relationships, not the last. You don’t wait for something that is critical or devastating or important. You’ve gotta be jealous in guarding all of the prerogatives of the independent judiciary and Bar,”
He bemoans the fact elections “are never fought over these things. They are fought over money issues or other issues but if an executive in power can wreak havoc with these arrangements ” you never get them restored. What the government takes away, you never get back.” See also page 8
Lawyers Weekly, Vol. 21, No. 47, April 19, 2002. pages 1 and 7.