Justice Heydon, in Quadrant Magazine 2003, presented 400 reasons why judicial activism is bad. The rule of law is based on precedent that holds, like a chain, justice from the past to the future. It is like a mathematical acquisition, where if you get one addition wrong, the whole system collapses. Same in law, if you are influenced from society, power, money, personal believes etc, you end up drifting away from the system of justice, into politics, and the rule of law is broken forever.
However, Democracy is not a clear-cut system. Every country has its own variation, depending on its culture, history, geography etc. Sometimes there is a gap in the democratic process that need to be filled or democracy is in jeopardy. One example is Turkey. The popular elected parliament is always inclined to create laws that promote religion. The predominant Muslim population, with its well organised church groups, act as a powerful lobby, asking favours from the government in exchange of their vote. To the rescue of the majority of the people, who are not so much in to full-face veils, comes the Army (?!?) with its strong history of political interference with coups and blood. They publicly “warn” the government of the day to keep Turkey a sectarian state, or else.. Regardless how undemocratic this may sound to us, that is how democracy is upheld in that country.
In Australia, the gap was created by an archaic constitution, where if we would follow it to the letter, the system would collapse. This gap is filled by constitutional conventions and the High Court. An example is the Mabo ruling. The concept of terra nullius was racist and undemocratic. However, no government did anything to change it, following the historical and cultural racist attitudes of its constituency. The High Court moved actively to fill the gap in our democratic system. They had to take off their judicial robes and wigs to act as politicians and put the constitution in the right path.
It is unfortunate, it is a coup d’etat, it weakens the rule of law, but it has to be done. Until the parliament stands up to its feet and takes our political system out of the 19th century and into the 21st, we will see more of the High Court sacrificing the rule of law in order to save our democracy.
However, Democracy is not a clear-cut system. Every country has its own variation, depending on its culture, history, geography etc. Sometimes there is a gap in the democratic process that need to be filled or democracy is in jeopardy. One example is Turkey. The popular elected parliament is always inclined to create laws that promote religion. The predominant Muslim population, with its well organised church groups, act as a powerful lobby, asking favours from the government in exchange of their vote. To the rescue of the majority of the people, who are not so much in to full-face veils, comes the Army (?!?) with its strong history of political interference with coups and blood. They publicly “warn” the government of the day to keep Turkey a sectarian state, or else.. Regardless how undemocratic this may sound to us, that is how democracy is upheld in that country.
In Australia, the gap was created by an archaic constitution, where if we would follow it to the letter, the system would collapse. This gap is filled by constitutional conventions and the High Court. An example is the Mabo ruling. The concept of terra nullius was racist and undemocratic. However, no government did anything to change it, following the historical and cultural racist attitudes of its constituency. The High Court moved actively to fill the gap in our democratic system. They had to take off their judicial robes and wigs to act as politicians and put the constitution in the right path.
It is unfortunate, it is a coup d’etat, it weakens the rule of law, but it has to be done. Until the parliament stands up to its feet and takes our political system out of the 19th century and into the 21st, we will see more of the High Court sacrificing the rule of law in order to save our democracy.
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