Although the judiciary is as much a branch of government as the executive and legislature, in most modern democracies it prides itself on its independence from voter preferences. In turn, many voters take pride in their lack of power over the judiciary, at least until it does something they dislike.
Before we explain the institutional structure of the malaysian courts and explore the connection between public law opinions and judicial careers, we will outline the conditions under which a government could be expected to keep judges genuinely independent.
Although voters elect politicians to deliver policies, they do not expect them to do all the work themselves. They expect them to hire agents—generally, bureaucrats to see the policies through. They also expect the politicians to prevent the agents from promoting policies they dislike. Given the desire to remain in office, elected officials monitor their bureaucratic agents with care.
Not every tax agent will perform every audit perfectly; the optimal level of agency slack in government is not zero anymore than it is in private business. As do managers of private firms, however, politicians devise mechanisms to alert them to serious slack. In private business, managers do this to increase shareholder profits.
In government, politicians do it to deliver policies voters want.Judges are just another set of agents. They are appointed by politicians, as in Malaysia. Politicians can readily discipline misbehavior by most appointed bureaucrats, subject to the constraints of civil service laws that the politicians themselves pass.
Why would voters re elect politicians who do nothing to stop judges from blocking the policies for which they elected the politicians in the first place.
Research suggests several reasons rational politicians might not use career incentives to control judges. First, perhaps politicians find it hard to make their promises credible. Whether in selling regulatory rents to lobbyists or in promising policies to voters, they have an incentive to renege on their commitments after the fact.
By delegating dispute resolution to independentjudges, they may increase the credibility of their initial promises.
Second, perhaps by giving citizens the right to sue misbehaving bureaucrats, politicians can use the courts to keep bureaucrats in line. Suppose politicians worry that bureaucrats may try to deflect this “fire alarm” by leaning on judges. If so, then they may want to keep courts strictly independent.
Third, perhaps politicians hope to mitigate their losses from losing elections. Although they could increase their power as majority politicians if they constrained judges, that power would come at a cost.
What they now do to the opposition, the opposition may do to them later.All else equal, we therefore expect courts to be less independent if the majority party:-
1. can credibly commit to policy through means other than the courts.
2. can detect misbehaving bureaucrats through mechanisms other than the courts.
3. can expect to continue winning elections.
PEOPLE'S POWER
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