• Thu
  • Aug 28, 2014
  • Updated: 9:04pm

Taking issue with definition of judicial independence

PUBLISHED : Wednesday, 30 July, 2008, 12:00am
UPDATED : Wednesday, 30 July, 2008, 12:00am
 

I refer to Pierce Lam's letter ('Judiciary is sufficiently independent', July 17). He says there are two aspects in Vice-President Xi Jinping's view of the necessary relationship among the three government powers, the legislature, the executive, and the judiciary - mutual understanding and support.

Mr Lam adopts Lord Mackay's definition of judicial independence as being 'the absence of interference by the executive in trials', but this is one aspect. The essence of judicial independence is for the courts to act according to the laws without interference by the executive or its policies. If a court supports the executive's policy then it cannot be seen as independent. The power of the US Supreme Court is irrelevant. The legislature creates the laws but the courts interpret them and therefore the courts do say what the laws really mean.

The judicial interpretation of the statutory laws and the power of the legislature to amend and revoke statutory laws have nothing to do with judicial dictatorship. If one looks at the Inland Revenue Ordinance (Cap 112), one will find most amendments are to amend and revoke the judicial interpretations and judicial precedents which supported tax avoidance in the loopholes of previous statutory provisions.

How judicial independence can be 'demarcated by the political boundary of the jurisdiction in which the judiciary operates, and not by the legal tradition which it follows' can only be known to Mr Lam. It is impossible to demarcate the courts from politics. Often people with political issues go to court. Trying to save Hong Kong's harbour is a political issue and people with such a political interest went to court to challenge the executive. The court followed its tradition to rule against the executive on the ground of abuse of power.

Good laws have to be backed by ethics, which have objective standards. One cannot say that Britain or the US has the writ of habeas corpus (to protect a person and individual freedom), but that it is only a local law and a country does not have to follow these so-called foreign mores.

To dismiss the writ of habeas corpus as an outlandish and antiquated rule is mistaken.

S. W. Lau, Central

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