Have trust in our judges

PUBLISHED : Thursday, 29 June, 2006, 12:00am
UPDATED : Thursday, 29 June, 2006, 12:00am

The current debate on part-time judges, and whether they have the right to join political parties, needs to be put in perspective.

To begin with, judges are members of the Hong Kong community and have all the rights of ordinary citizens. Those include freedom of association.

Moreover, as intelligent, thinking human beings, they will inevitably have political views.

Many jurisdictions seek to maintain the appearance of impartiality by forbidding judges from engaging in overt political activities - or even being party members.

But judges will harbour their own political views whether or not they are members of a party.

By not joining a party, they simply keep their views hidden.

Whatever their views - and whether or not they are party members - however, judges are expected to rule impartially and not allow their political views to colour their judgment in the court cases that come before them.

On election day, judges are free to vote like anyone else. No doubt, they vote for the candidate from the political party that they approve of - whether or not the judge takes the trouble of actually becoming a member.

Thus, as long as a member does not play an active role within a political party, he or she is little different from a non-member who supports that party.

In the United States, the president appoints federal judges. He picks people whose views are close to his own - particularly when appointing judges to the Supreme Court - which may blur the line, somewhat, between the executive and the judiciary.

In many jurisdictions similar to Hong Kong, there are no rules preventing part-time judges from joining political parties.

For example, in England and Wales, while full-time judges must sever all ties to political parties, this does not apply to part-time judges. Similarly, in Australia, while judges must have no ties with political parties, that rule does not apply to part-time judges.

Canada is another common-law jurisdiction that makes the same differentiation between full- and part-time judges.

That is probably because part-time judges are not actually judges, most of the time.

And when they do perform the role of a judge, it is on a temporary basis, usually for a few weeks, after which they go back to being lawyers.

While they are sitting on the bench, part-time judges have the same powers and responsibilities as their full-time counterparts.

If a case comes before them where their party membership or their political views may be relevant, they are expected to disqualify themselves.

As long as they are people of integrity, there is nothing to fear if some part-time judges are members of political parties.

But if they lack integrity, then - even if they are not formally members of political parties - they cannot be trusted to discharge their office fairly and impartially. It all comes down to the quality of our judiciary.

So far, our judges have a well-deserved reputation for being independent and for upholding the rule of law.

There is no need to tie the hands of our senior lawyers who, from time to time, may sit as judges on a part-time and temporary capacity.

Both branches of the legal profession - solicitors and barristers - support the current system.

The judiciary is independent of both the executive and the legislature, and must continue to remain so. No good can result if the Legislative Council succeeds in imposing its views on members of the judiciary.

That would only weaken the independence of our judiciary.

Is that the outcome wanted by those who propose tying the hands of our part-time judges?

Frank Ching is a Hong Kong-based writer and commentator