CLA News / Defending the Rule of Law: Judicial Independence under Threat? by CLA President Steven Thiru

12/06/2025
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“I refused to yield to influence, pressure, or political alignment. I chose to stand and defend myself. . . . I wanted the whole country to witness how vulnerable judges have become. . . . To expose how judges are threatened with disciplinary action, and how their careers can be destroyed for refusing to comply.”

~ Former Justice of the Supreme Court of the Republic of Maldives, Dr. Azmiralda Zahir [1]

A Pillar of Democracy: Judicial Independence

Commonwealth nations have embraced democracy as their system of governance. Yet democracy entails far more than mere nomenclature. Its true essence lies in the lived expression of its foundational values — principles that are deeply embedded in the civic culture and public institutions of a society.

At its core, democracy is a framework in which public life is shaped by civic engagement, institutional accountability, and adherence to the rule of law. It is a system that not only empowers citizens with a voice and a collective or participatory role in shaping society, but also fosters confidence that their rights and freedoms will be respected and protected within a fair and lawful order.

Fundamental rights and liberties in a democracy are typically enshrined — expressly or impliedly — in written constitutions. They encompass guarantees such as right to life and personal liberty; equality before the law and equal protection under the law; freedom of movement; freedom of speech and expression; freedom of assembly and association; and freedom of conscience, belief and religion. As experience invariably shows us, the exercise of these rights is far from assured. Their realisation depends heavily how State power is exercised, or abused.

Human Rights Watch’s World Report 2025 documents the ongoing erosion of fundamental liberties across the Commonwealth. Critics, journalists, activists, and political opponents continue to face violence, harassment, and intimidation — trends that severely undermine democratic processes (Kenya, Nigeria, Pakistan, Zambia). Broad, vaguely worded laws have been weaponised to criminalise free expression, including online speech (Malaysia, Pakistan, Uganda). Arbitrary website blocks, social media suspensions, and internet shutdowns have also been effected (India). Environmental and political protests face increasing restrictions and hostility (Uganda, United Kingdom), and the widespread use of facial recognition surveillance at peaceful public assemblies have raised serious civil liberties concerns (United Kingdom).

When democratic rights are violated, it is essential that grievances are resolved through an impartial, credible and competent judicial process.

It is axiomatic a judicial process must be wholly independent. The Judiciary must command public confidence — the public must trust that justice will be administered fairly, impartially, and in accordance with the law. Any interference with judicial independence jeopardises the rights of all who depend on the administration of justice to give effect to the full range of civil, political, economic, social, and cultural rights. When the Judiciary is compromised, constitutional guarantees risk becoming largely aspirational, and the rule of law is reduced to little more than a rhetorical ideal.

An independent Judiciary is thus the defining feature of an ordered and just society. It reflects a legal order that applies equally to all, shielding its people from caprice and the unrestrained exercise of power. The law must serve the public good — not be used as a private tool to cater for narrow interests — and justice must be administered in service of the people, not in service of power.

For democracy to flourish, an independent Judiciary, free from undue influence, is imperative. It is a foundational pillar of democratic governance, indispensable for the preservation of the rule of law and the protection of individual rights. Without judicial independence, democracy is diminished to a mere shell — an outward form devoid of substance.

Separation of Powers: Mutual Respect and Deference

 “Under the Constitution, the Executive, the Legislature and the Judiciary are equal partners in the running of a successful government. . . . The organs wield these powers and one must never usurp the power of the other or else there is chaos. . . . Executive lawlessness is tantamount to a deliberate violation of the Constitution.”

~ Former Justice of the Supreme Court of Nigeria, Kayode Eso [2]

The independence of the Judiciary cannot be meaningfully discussed without reference to the doctrine of separation of powers. The Singhvi Declaration offers a valuable working formulation of judicial independence, stating:

  • Judges individually shall be free, and it shall be their duty, to decide matters before them impartially in accordance with their assessment of the facts and their understanding of law without any restrictions, influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason;
  • The Judiciary shall be independent of the Executive and Legislature; and it shall have jurisdiction, directly or by way of review, over all issues of a judicial nature, including issues of its own jurisdiction and competence.

The Commonwealth Charter explicitly recognises the importance of “maintaining the integrity of the roles of the Legislature, Executive and Judiciary”, and affirms the need for an “independent, impartial, honest and competent judiciary”. This principle is also enunciated in the Commonwealth (Latimer House) Principles on the Three Branches of Government, stating that “[i]nteraction, if any, between the executive and the judiciary should not compromise judicial independence”.

A court can only function as a fair and just umpire if it operates from a position of autonomy. If it is compelled to uphold Government policy — whether through overt threats or interference, or more subtle expectations — it ceases to function as a neutral arbiter, and instead becomes an instrument to serve the Executive. In such circumstances, “it [would] be unreal to look upon it as an independent tribunal”.[3]

It is imperative that governments in democratic societies that are based on the rule of law, recall and uphold the mutual respect and deference that must exist between the Judiciary and the Executive, if constitutional democracy is to have real and enduring meaning. It has been astutely observed that “[i]ndependent institutions are not the weakness of the government, but a sign of its strength.” [4]

Undermining the Bench: Emerging Threats to Judicial Independence

“The Judiciary, to me, is akin to an army of soldiers defending the fortress of democracy from the assault of injustice. The law acts as the armour and shield provided to us by the Legislature, with which we have been tasked with protecting the citizens of our country.” [5]

~ Chief Justice of Sri Lanka, Justice Murdu Fernando PC

Political interference with judicial independence is not confined to the newer democracies that emerged in the developing world after the Second World War. Similar patterns are increasingly apparent even in established, “First-World” nations. What we are witnessing is not only a growing lack of respect for the Judiciary, but a troubling trend toward its subversion.

We must be vigilant, and rely on the robust body of international instruments, standards, norms, and guidelines for best practices that have been developed to safeguard judicial independence, such as the following:

In addition to core principles, these instruments and documents set out standards for judicial appointments, removal procedures, protection of judicial remuneration, and security of tenure. While many of these safeguards are incorporated, to varying degrees, into domestic Constitutions, significant disparities remain in how closely national frameworks align with international norms. The gaps are especially evident in areas involving Executive influence over judicial appointments and removals, which continue to be contentious, and susceptible to political interference.

At the 24th Commonwealth Law Conference in Malta in April 2025, the Chief Justice of Malaysia, Tun Tengku Maimun binti Tuan Mat, offered incisive reflections on the need to protect judicial independence through institutional safeguards. Her Ladyship observed that removing the Prime Minister’s role in the judicial appointments process would “reinforce the impartiality of the selecting process, ensuring that judicial appointments remain firmly grounded on merit and free from any perception of political influence”.[6] She also emphatically declared:

[J]ustice is beyond the political process. An independent Judiciary exists for the primary purpose of doing justice unimpeded by any external or internal factors that do not concern the law and the facts. The Judiciary is motivated only by the need to uphold the Rule of Law.[7]

In the Republic of Maldives, two Supreme Court Justices, Dr Azmiralda Zahir and Mahaz Ali Zahir, were impeached by Parliament in May 2025 following the controversial recommendations of the Judicial Services Commission. Their removal proceeded despite reports of serious procedural flaws in the disciplinary proceedings, which had allegedly not been conducted fairly or transparently. Another Justice, Husnu Al Su’ood, had earlier resigned in protest. These concerns were raised by the Bar Council of Maldives, and other international bodies and Bar Associations — including the CLA, which issued a statement on 10 May 2025; and joined LAWASIA, the Bar Association of India, and the Nepal Bar Association in a Joint Open Letter to the President of the Republic of Maldives on 4 June 2025.

In Ghana, the Chief Justice, Gertrude A. E. S. Torkornoo, was suspended by the President of Ghana on 22 April 2025, prompting a statement by the Ghana Bar Association expressing concerns over the removal process, and thereafter a resolution calling for the immediate revocation of the suspension, considering it unconstitutional. The CLA issued a statement on 7 May 2025, underscoring that removal or suspension from judicial office is a very serious form of judicial accountability which should not be undertaken lightly sans a concrete or justifiable basis. In a Joint Statement with the Commonwealth Magistrates’ and Judges’ Association (CMJA) and Commonwealth Legal Education Association (CLEA) on 5 June 2025, the CLA expressed further concerns regarding the alleged due process irregularities in the disciplinary proceedings. The matter is ongoing.

Encroachments on the judicial appointments and removal process send a chilling message: that Judges may be subject to reprisal. Independent Judges are not seen as impartial and neutral arbiters, but are instead cast as obstacles to Executive authority — impediments to the implementation of governmental policies, and vulnerable to coercion or retaliation for decisions that diverge from political or business interests. Such interference is a blatant affront to the rule of law, judicial independence and integrity, and the foundational principle of separation of powers.

Standing for Justice: The CLA’s Mandate in Safeguarding Judicial Independence

“[Y]ou must always remember that lawyers are first and foremost officers of the Court. As lawyers this will mean that one of your paramount responsibilities will be to respect, preserve and protect the independence of the judiciary, in your quest with the judges to ensure the rule of law.[8]” ~ Member of the Judicial Committee of the Privy Council and Former Chief Justice of the Cayman Islands, Sir Anthony Smellie KCMG KC

The foundation of a free and independent Judiciary rests, in no small part, on the strength of an independent and fearless Bar. The two are interdependent and mutually reinforcing. An independent Judiciary and an independent Bar constitute twin pillars of the rule of law — when either is weakened, the edifice of justice begins to crumble.

While the Judiciary, by convention and necessity, must often exercise restraint in the face of criticism or attack, the Bar is free — indeed, duty-bound — to speak out. It is the first line of defence, the first voice raised, when judicial independence is challenged or undermined.

Throughout history, Bar Associations have played a pivotal role during constitutional crises, periods of repression, and times of social upheaval — serving as the conscience of the legal system. Lawyers have long stood, and must continue to stand, as defenders of constitutionalism, champions of civil liberties, and sentinels holding State power to account. The defence of judicial independence is the indubitable collective duty of the legal profession.

Today, as threats to the rule of law become ever more complex and pervasive, the challenge for the legal profession is more pressing than ever. Lawyers must continue to lead: advancing justice; upholding fundamental human rights; and remaining steadfast in their defence of the independence of the Judiciary and the legal profession, and the preservation of the rule of law.

This has been, over the past 40 years — and continues to be — the unflagging mandate of the CLA. In the eternal words of former Chief Justice of India P. N. Bhagwati: “[W]ithout a strong and independent bar, there can be no real independence of the judiciary. It is always a strong and independent bar which nurtures a strong and independent judiciary.”[9]

Steven Thiru

President

Commonwealth Lawyers Association

26th June 2025

 Steven Thiru records his appreciation to Boo Sha-Lyn and Chin Oy Sim for their assistance in preparing this article for publication.

[1] “‘I refused to yield’: a Maldives Supreme Court justice’s final stand”, Maldives Independent, 26 May 2025.

[2] The Military Governor Of Lagos State & Ors. v. Chief Emeka Odumegwu Ojukwu & Anor. (1986).

[3] Apaloo, F. K. (1980). “Miscellany-at-Law: New Judicial Appointments [1980]: Speech delivered by Chief Justice”. Review of Ghana Law 1980. VOL. XII RGL 11-15.

[4] Sreenevasan, Ambiga. (2007). “Welcoming Address”. Malaysia Law Conference, Kuala Lumpur, 29 October 2007. Quoted in “Malaysian Bar lauds Raja Azlan Shah”, Malaysian Bar, 30 October 2007.

[5] “New CJ says Judiciary is the army that defends the fortress of democracy from the assault of injustice”, The Sunday Times, 15 December 2024.

[6] Tun Tengku Maimun, Tuan Mat (2025). “Judicial Independence and Parliamentary Sovereignty — A Colossi of Roads?”. Speech delivered at the “24th Commonwealth Law Conference”, Malta, 7 April 2025.

[7] Ibid.

[8] Smellie, Anthony (2012). “The History, Meaning and Importance of Judicial Independence: A Commonwealth Caribbean Perspective (With Emphasis on the Cayman Islands”. Lecture given to the Stetson Universal Law School Winter Programme, Cayman Islands, December 2012.

[9] Bhagwati, P.N. (1989). “Welcome”. Report of the seminar “The Independence of the Judiciary in India”, New Delhi, 20-21 January 1990.

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