Paving the way for sound legal system
A Latin American tour guide introduces his national court by saying: 'This is our Court of Injustice.' Woe to those who see no justice in their countries! In ancient China, Judge Pao of the Song Dynasty was the model of a clean-handed judge. Yet how can we ensure all judges carry out their duties with clean hands? Hong Kong's legal system emphasises the importance of judicial independence and judicial accountability.
Who can be judges? In addition to professional requirements, judges must not be members of the executive government or legislature so as to avoid conflict of interests.
They must also distance themselves from politics to prevent bias.
Judges must decide cases according to the law without fear or interference from other forces. Judicial independence can also be achieved by the security of a judge's term of office.
If judges could be arbitrarily removed by the Government if they gave an unpopular decision, how could they judge cases fairly without fear of losing their jobs.
The Basic Law stipulates only 'misbehaviour' and 'disability to perform judicial function' as grounds for removal from office and provides the due procedure necessary for the dismissal of a judge.
Sometimes, a judge may criticise the acts of individuals or the Government in the course of judgment. If he was made liable in each case for a suit of defamation, he would be unable to discharge his duties impartially and free from external influences.
Hence, the Basic Law also provides that members of the judiciary shall be immune from legal action in the performance of their judicial duties.
Bribery is a potential threat to judicial independence. We cannot assume all judges are saints.
Making sure judges are well paid is a way of discouraging bribery.
Judge Pao dispatched officials to investigate cases. In contrast, our adversarial legal system does not permit judges' active involvement in cases. Direct participation would create bias and prejudice.
Our judges only hear the arguments of the opposing sides and act as an impartial umpire.
By distancing themselves from the cases, judges can be more objective and impartial in making their decisions.
Judicial accountability plays a strong role in securing justice. An open and public trial means a judge's performance is under public scrutiny. He cannot adjudicate cases in the dark and must give reasons for each decision he makes.
Complaints of judicial misbehaviour may invite institution al procedures of investigation. If the alleged misconduct is proved, the judge may be removed in accordance with the procedure stipulated.
Without judicial independence, the judiciary could easily degenerate into a political puppet. Without judicial accountability, the courtroom could be easily turned into a darkroom. Political puppets in a darkroom would then be synonymous with a Court of Injustice.
Jason is a second year law student at the University of Hong Kong