Judges have responsibility to protect integrity of legal system

PUBLISHED : Friday, 12 March, 2010, 12:00am
UPDATED : Friday, 12 March, 2010, 12:00am

I refer to the University of Hong Kong conference titled Hong Kong's Court of Final Appeal: The Andrew Li Court 1997-2010 ('Legal world pays tribute to outgoing HK chief justice', March 6).

The conference presented draft chapters of a planned book on the first 13 years of the court's history. The book will be an important historical record. The dean of HKU's law faculty, Johannes Chan Man-mun, said that while legal academics strongly disagree with some of the court's judgments, these do not outweigh its overall success. The book needs to demonstrate with fact and analysis why the public should accept this view.

Objective and useful history requires fair and balanced inclusion of negative and positive. If it is thought that judges act in ways that affect the credibility of the justice system or undermine the rule of law, there is a professional and civic duty to say so.

The people are entitled to know the performance of exceptionally well paid public officers in the judgment seat who are making decisions that could benefit or ruin their lives. Neither type of decision should result from abuse of the high trust and authority given to judges. Better methods of maintaining independence and accountability are required than outdated, self-made rules of judicial restraint and immunity.

The quality of judgments can only be properly tested by comparison with the facts and submissions filed in each case and the applicable law. Principled reasoning is essential to public justice and the public's right to check that justice has been done. Original comparative material should also be included in independent law reports.

For any court to be successful, integrity and justice demand its judgments impartially reflect the evidence, the arguments and the law books. That is the basis on which citizens trust the courts to resolve legal disputes harmoniously and avoid the social instability resulting from a sense of injustice.

Judges must not depart from the law and act from personal or political motives, since then they would break their constitutional consent under the checks and balances by which executive, legislative and judicial powers are strictly separated, to avoid tyranny.

Sir Anthony Mason, a former Australian chief justice, said great chief justices require a 'sense of strategic vision' and a 'capacity to take the long-term view'. There is no problem if that refers to judiciary administration. If it means social policy beyond that underlying the law, it breaches the judicial oath and duty to judge 'according to law'.

Judges necessarily lose independence by taking political sides. Lord Devlin, the distinguished English judge and legal philosopher, warned unelected judges against speeding ahead of the community consensus and implementing their preferred results rather than the law.

Regrettably, in Australia, distrust of judges due to improper judicial activism has strengthened public opposition to introducing a national bill of rights.

Michael Scott, Yuen Long