LETTER OF THE LAW

Patriotism on the bench? There's not much of a case

Justice is done and seen to be done because our system embraces values like impartiality

PUBLISHED : Tuesday, 29 July, 2014, 3:38am
UPDATED : Tuesday, 29 July, 2014, 5:12am

Judicial independence is at the core of the rule of law ideal. Judicial process can be viewed as a reasoning process based on rules, principles, norms, values and facts leading to an authoritative judgment.

When the judiciary is taken as a government function, it has to be distinguished from the other two functions - the legislative and executive. Its independence from them is essential as this is the best way to protect reasoned judgment from interventions by other sources - however well-intended and whatever desirable consequences they may bring.

Professional judges guarantee the judiciary operates on legal knowledge and skills, and is autonomous. Judicial independence and autonomy protect rationality from the meddling of power politics. It prevents the government from being its own judge, too.

From empirical research, our legal system has been consistently regarded by the people as a fair public institution in the last two decades or so. The people believe our judges are fair, independent and impartial. Judges stand out as the most trusted of legal personnel.

Research also indicates a significant correlation between people's faith in the legal system and judges' impartiality.

Justice is done and seen to be done because our system embraces values. The carvings on the pediment of the former supreme court/Legislative Council building may provide the best symbolic representation of our values: equality before the law, impartiality and justice, as symbolised by the blindfolded Themis, standing right above the sovereign, accompanied by mercy (Clementia) on the right and truth (Athena) on the left.

The architectural work is also reminiscent of British jurist Edward Coke's 1608 remark: the king ought to be under no man, but under God and the law. In modern terms, this means even the sovereign must be subjected to the law and reason, if the rule of law is to be taken seriously.

The judiciary works on reason and rationality. It is the judges' professionalism in upholding a society's values that earns them trust and support. Requirements of political accountability, correctness or any form of attachment that would compromise openness, rationality and our inherent institutional values should therefore be rejected.

Should patriotism be a requirement for judges? Patriotism, if understood as loving one's country, is too vague to be of any practical meaning. If understood as political loyalty, it goes against sound constitutional theory and our legal tradition. Our 170-year-old legal system has worked well before and after the handover without this requirement.

In Germany, there is an idea of constitutional patriotism to mediate national and universal identities. It means loyalty to values, procedures and norms of constitutional democracy, but not attachment to any political power. Constitutional patriotism is perhaps a higher form of loving one's country.

Simon T.M. Ng is an assistant professor at the School of Professional and Continuing Education, University of Hong Kong