Democracy depends on its judges as no other system does. More so as the individual in society is at an increasing disadvantage to the state by reason of social management and control, and parliament itself is seen to be no longer able to adequately protect the rights of the people.

The complaint of all Westminster-type governments is the concentration of power in the hands of the prime minister even in Parliament. The prime minister and government in command of a clear majority in the House of Representatives, exercise through party discipline an "elective dictatorship" (a term attributed to Lord Hailsham of his observations of the British House of Commons). The notion of the peoples' representation in Parliament becomes somewhat of a myth.

According to critics, Parliament then becomes the stage generating the perception that the will of the people exists, and that this will is indeed in line with what political elite (the executive or government in power) have in their wisdom proposed.

Under this influence, Parliament arguably passes any legislation the executive wants. Collective responsibility (accountability of ministers and transparency of government processes) of the executive to Parliament or separation of powers between these two organs becomes a "demockery".

Our constitutional makers in 1957 adopted the British Westminster-style system but substituted supremacy of the written constitution over the supremacy of Parliament. The Federal Constitution nevertheless endorses the Westminster idea of the majority party forming the government and the leader becoming prime minister (Article 43).

In the alliance of the executive and Parliament, the judiciary remains as the last bastion to check the two institutions. It forms the bulwark between individual rights and the power of the executive. Its independence is central to the survival of democracy. It becomes vital to challenge any encroachment of the executive over judicial power and the judiciary.

Judicial independence covers independence of the judiciary as an institution (in relation to the executive and Parliament) and the independence of the judges collectively and as individuals.

A contemporary view of the essentials of judicial independence include public confidence. Public confidence in the judiciary and in the judicial system is an important support for and perhaps a condition of judicial independence and the administration of justice.

A corollary to judicial independence is judicial accountability. This has its roots in traditional notions of judicial independence. The judiciary like the executive is accountable to Parliament. In Westminster-type systems (by convention or written constitution), power is given to Parliament to remove a judge for misconduct.

The power of Parliament to achieve the removal of a judge in the UK (Act of Settlement, 1701) was only exercised once in 1803 over Sir Jonah Barrington, a judge of the High Court of Admiralty in Ireland for embezzlement by appropriating for his own use funds paid into court.

Under the Federal Constitution, Parliament may only "discuss" the conduct of a judge on a substantive motion requiring notice by not less than one quarter of the total number of members in the Dewan Rakyat and Dewan Negara (Article 127).

However, the prime minister under Article 125 (3), in effect may set in motion the removal of a judge through a tribunal convened under Article 125 (4).

This "constitutionally mandated" power was exercised twice since Merdeka, on May 31, 1988 and on Aug 12, 1988 removing Salleh Abas, then Lord President (first tribunal) and then the late Wan Suleiman Wan Pawanteh and George Seah (second tribunal). (See the 82-page report "Malaysia: Assault on the Judiciary" by the Lawyers Committee for Human Rights, 1989).

Executive politics and control of Parliament are factors influencing judicial independence. This has fuelled a modern attack on the traditional view that judges must not enter into the realm of "politics", the domain of the executive. Critics argue that even if Parliament is representative of the people, question time is limited and the growing trend is, ministers are exercising their powers through semi-autonomous executive agencies and through corporations.

Judges are increasingly involved in adjudicating commercial transactions where the state, its ministers (or nominees) are parties and it would be inevitable that judges would make comment of the powers-that-be. If this warrants a removal, who checks the alliance?

The jury is still out on whether it becomes a judicial function to scrutinise the effectiveness or failings of modern government (and arguably compromise its "separateness" from the executive and Parliament). However, the need for scrutiny is acknowledged and this has encouraged trends for constitutional reform and the decentralising of power.

In the UK for example, in recognition that their courts will be drawn into a greater number of politically controversial issues, the Human Rights Act (UK) allows the courts to exercise a more intensive scrutiny over government and public authorities. The Freedom of Information Act (UK) will render greater transparency of government processes.

In several Commonwealth countries as in Australia and Canada, Judicial Commissions of Accountability are established to oblige the judiciary to control itself. In these commissions, complaints about the judiciary can be investigated and where proved, are dealt with in ways short of constitutional removal.

In his speech at the Reference, early in this year, in honour of Wan Suleiman, Tun Mohd Suffian said, "I predicted that our judiciary would take a whole generation to recover from the assault (the events in 1988). Now that more than 12 years have elapsed, I doubt if the judiciary would recover in a generation from today."

Judicial independence is not a given, it must be nurtured and like democracy, it survives by the alertness in the people. It is by this vigilance that democracy and judicial independence prove itself in the long run.