Confidence in judiciary is key to rule of law
One of the most reassuring developments since Hong Kong's reunification with the mainland in 1997 has been the public's high level of trust in the judiciary. People have continued to feel that they will get a fair hearing in court by judges who rule without fear or favour. This can be seen by the numerous cases they have brought against the government, by invoking clauses in the Basic Law that protect their fundamental rights.
The revelation that two part-time judges are members of the Civic Party has therefore raised eyebrows. Legitimate questions have been asked as to whether the political affiliations of part-time judges might undermine confidence in the rule of law. But there are good reasons for believing this is not the case.
To be sure, the perception that a judge might rule in accordance with his or her political views rather than in accordance with the law is one that must be avoided if confidence in the legal system is to be maintained. With this in mind, the Guide to Judicial Conduct issued by the Chief Justice in 2004 provides that judges should refrain from membership in or association with political organisations or activities. The question is whether this requirement should be extended to cover part-time judges who sit for only a few weeks a year.
The system of appointing senior barristers as part-time judges, or recorders, has been in place for a long time. The arrangement allows lawyers to acquire experience as a judge and perhaps to decide that they are interested in a full-time judicial appointment. It also provides the judiciary with useful additional manpower and enables it to spot suitable candidates for full-time positions.
But the system does raise the issue of whether a lawyer with political affiliations should be required to sever them on taking up work as a part-time judge. Around the world, members of the legal profession often go into politics and many are members of political parties. To ensure they are seen to be fair and impartial, most jurisdictions require them to cut any links with political parties on becoming judges.
It would, however, be unfair to require senior lawyers who are merely toying with the idea of becoming judges to go through possibly complex procedures to give up their membership in political parties and other associations. After all, only some of them will eventually join the bench. And safeguards do exist to ensure that when they are sitting as judges, no perception of bias arises. Litigants fearing bias are entitled to ask the judge to step down. Judges are required to do so if they have a conflict of interest or there is a strong risk they may be perceived to be biased.
Like anyone else, judges do have their own sets of values and personal views, which can influence their thinking in trying the cases put before them. Although legal reasoning is more art than science, it has its own logic and is based on a specialised body of knowledge. The part-time judges are all veteran lawyers. As long as they are objective, fearless and fair in their application of the law, their personal views should not be automatically regarded as a problem. Under the US legal system, federal court judges must refrain from any political activity. But lower level judges are elected and are often endorsed by political parties. This is seen as a way of making sure they are accountable to the public. Political affiliation, therefore, does not necessarily prevent a judge from ruling objectively and fairly.
The real issue here is perception. Justice must be seen to be done. There might be a case for the judiciary to tighten the rules that govern part-time judges' declaration of interests. This would give the parties that appear before them more opportunity to challenge their standing.
The overriding consideration is to ensure public confidence in our judges, full-time or part-time, as an independent judiciary is the cornerstone of the rule of law. But this can be done without forcing part-time judges to give up their political affiliations.