Public opinion need not be seen as challenge to courts' authority

PUBLISHED : Saturday, 14 August, 2010, 12:00am
UPDATED : Saturday, 14 August, 2010, 12:00am

The Bar Association and Law Society have expressed concern over public comments on the Amina Mariam Bokhary case ('Pressure on judges, magistrates deplored', August 12). Their joint statement echoed Martin Lee Chu-ming's comment that the public outcry might lead to mob rule ('300 march in protest at Bokhary sentence', August 9).

These concerns raise the question of what role the public should play with regard to the judiciary. To answer this we must rise above accepted doctrines of the legal profession and start with the fundamentals.

A cornerstone of sound governance is adequate checks and balances of power. Many government decisions involve some discretion. Discretion means power and as Lord Acton said, 'Power tends to corrupt, absolute power corrupts absolutely.' Any claim otherwise denies basic human nature. Where corruption does exist, it can mean not just bribery but also tacit collusion.

The harder it is to verify the validity of the decisions, the higher the discretion, and the stronger the power. Judges are endowed with substantial power because, as their title suggests, their decisions are often highly judgmental.

The rationale for isolating judges (and magistrates alike) from public opinion is to maintain their independence and avoid populism. But that leaves their power unchecked. The appeal process alone is inadequate, especially when the administration itself lacks the legitimacy of public election. If we are worried about mob rule and therefore feel we should trust judges to decide whatever they see as being in society's best interests, why shouldn't we extend that trust to politicians?

Granted, the judiciary is very different from the other government branches. In serious criminal cases juries are sworn, which already ensures some public participation. The passive role of the courts also limits the scope of their power. Moreover, if the courts are easily swayed by public opinion, the standard of judgment would lack consistency, creating uncertainty and unfairness. Nevertheless, these are not grounds for suppressing public opinion. Why do we mandate public participation in some cases, but not allow public scrutiny in others?

Public monitoring does not necessarily mean mob rule, just as democracy does not necessarily lead to populism. The courts should not view public opinion as a challenge to their authority and professionalism. Public opinion can facilitate rational discussions by engaging instead of avoiding the public.

Justice does not belong to the court elites, but to all citizens. Public monitoring also serves as a feedback mechanism to the courts. When it comes to retribution, court decisions should at least partly reflect the people's values instead of the judge's.

Public monitoring can bring progress. Largely due to the public outcry, the police are reconsidering how they charge suspects ('Police to review which law to prosecute officer assault cases under', August 8). Hopefully all parties can learn lessons from this episode.

C. Oscar Lau, Haslett, Michigan, US