• Sun
  • Aug 31, 2014
  • Updated: 12:20pm
CommentInsight & Opinion
LEADER

Independence is key to justice

PUBLISHED : Sunday, 19 January, 2014, 2:53am
UPDATED : Sunday, 19 January, 2014, 2:53am

For the fifth consecutive year, our most senior legal figures have used the ceremonial opening of the legal year to emphasise the importance of an independent judiciary and the separation of powers between the executive, the legislature and the judiciary.

It is because of adherence to these principles that the judiciary enjoys wide public confidence and respect among its international peers.

Yet this year Chief Justice Geoffrey Ma Tao-li and Secretary for Justice Rimsky Yuen Kwok-keung were quite forthright in their remarks. This followed criticism perceived as undermining pillars of our core value of the rule of law.

Yuen hit back at "abusive attacks" on judges by people who disagreed with their decisions. Ma quoted the Basic Law on separation of powers to repudiate the view attributed to some Beijing officials and loyalists that the three branches of government should "co-operate".

In 2010, Ma's predecessor Andrew Li Kwok-nang said the role of the city's independent judiciary needed to be clearly explained for everyone's understanding. In 2012 Yuen's predecessor, Wong Yan-lung, and Ma took up the independence theme.

As with Li, they were prompted by controversies over judicial reviews in which administrative and legal decisions were challenged in the courts. Last year, Yuen and Ma warned against political pressure on the courts following a series of legal and political controversies.

This year their speeches followed last month's contentious ruling by the top court that new immigrants no longer had to wait seven years for entitlement to welfare benefits.

Ma commented that certain public law cases tested the demarcation lines of separation of powers, but the constitutional line was clear - that the courts dealt only with legal issues. Public confidence in the judiciary's integrity rested on independence and proper, transparent application of the law in letter and spirit.

The importance of judicial independence does bear repeating, year after year. Hong Kong's success owes much to firm adherence to the rule of law, which protects our freedom, provides a level playing field for business and guards against abuse of power by government. There is no place for populism or political pressure if the judicial independence fundamental to the rule of law is not only upheld, but seen to be.

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15

This article is now closed to comments

rpasea
Ok but can we now get rid of the silly wigs?
lucifer
The wigs serve a purpose and distinguish different types of lawyers and judges and add a sense of formality to the court. Its deep rooted in tradition and should remain for as long as possible.
blue
"Too often we read of first offenders being locked up in prison for minor offences for which they would be fined in other countries."

Captam: Could you kindly provide an example of such cases? I am genuinely curious.
aplucky1
too many shocking decisions
too hard and expensive to seek justice
anyone remember a few years ago, so spoiled rich piece of garbage decided he wants to have sex with the helper, she brings him to court on a rape charge
THE POS JUDGE lets him go cause "he is too intelligent" this is what was written in his ruling
why dont they have juries here? retarded rulings like this would never happen
blue
Juries are available for certain crimes. I guess rape isn't one of them?
DinGao
Yes, it bears repeating annually but it should not be necessary to do so.
chaz_hen
Probably because HK becomes more "mainlandized" each and every year...
MingBaakMei
Most people, including politicians of every hue, do not fully understand the independence of the Judiciary as a concept and those that do, whilst they support it, will only do so until some judicial decision goes against their own principles, when they then start to call for some sort of judicial reform, control or dismissal.
The only reform I would like to see would be a compulsory retirement age. Any organisation is only at its most effective when it has a balance between youth and experience and I do not think the judicial authorities, not just in HK, have the correct balance at this time.
DinGao
And what should this compulsory retirement age be?
amunro
Totally agree with Ibsaw. The rule of law is paramount in HK and let's hope it stays that way and our adjudicators remain independent. However, that should not mean that they (and especially magistrates) are immune from criticism and review of judgment - in fact this is equally important. How do we remove poorly performing magistrates and judges?
DinGao
The CJ removes them or lends them permanently to some commission or other.
lbsaw
Being an ordinary resident, and I am sure the majority of Hongkong population will have the same question, can the Chief Justice explain how the conduct of the judges are monitored and more important, how are their errors corrected. Judges are human beings and will erred too but when they made wrong judgments, they are hardly penalised simply because few ordinary resident is capable to understand how to seek redress as the procedures to apply for a judiciary review and/or appeal process is too complex, costly and time consuming. This means such errs by judges are immune from redress. The irony of this is the judges are paid by tax payers money and their very job is to ensure fair justice is delivered but there have been so many erred judgments, especially at the lower courts (eg. Labour tribunals, Magistracy and District courts), that have been made, and probably will remained a travesty of justice. Let's start by allowing all proceedings at these lower courts to be freely accessible via internet as this will ensure the judges are publicly viewed as to their management of justice. Judiciary independence should not be an excuse for unchecked errs made by judges and further shrouded by the complex process to obtain redress by any ordinary resident. This needs to be corrected.
captam
lbsaw is so right!
There are occasionally some appalling judgments and too weak a system for rectification by the appeals process because of high legal costs. The judiciary are also not so independent as you might wish to believe, particularly on sentencing. Hong Kong has a very harsh prison sentencing regime compared with other jurisdictions. There are sentencing tariffs imposed by the High Court which are not in line with public expectations and this is wrong and hardly just. We so often hear a magistrate or judge, during sentencing, start by saying “this is a very serious offence”. Where has this statement of biased opinion (as opposed to law) been obtained? It was not written in the legislation and passed into law. It’s come down through whispers from the executive branch of government, not from the general public. Too often we read of first offenders being locked up in prison for minor offences for which they would be fined in other countries. On the other hand, for instance, offences involving cruelty to animals for which the public have overwhelming called for higher sentences, are treated with a slap on the wrist by the judiciary because the government wants to go light on the pet trade.
DinGao
Their errors are corrected by the Appeal process. AAs to the CFA, the buck has to stop somewhere. The ultimate redress is by way of amendment of the law in question. I agree that there should be increasing accessability to judgements on-line.and that more should be done to attract better material into the magistracy to avoid appointing Temprary Special Magistrates, some of whom are apallingly bad.
Dao-Phooy
Judgments are on line - just visit the Judiciary's website.
 
 
 
 
 

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