The job of Hong Kong's "fearless judiciary" is to reach well-reasoned - not popular - decisions on cases, even those covering controversial issues such as immigration, the city's top judge says.
In a public lecture at Chinese University yesterday, Chief Justice Geoffrey Ma Tao-li did not specifically refer to the right-of-abode case involving domestic helpers on which the Court of Final Appeal is due to deliver judgment on Monday.
The court must decide whether to entertain the government's request to seek clarification from the National People's Congress Standing Committee of the latter's power to interpret the Basic Law and of the standing of a peripheral statement the committee made in its 1999 interpretation on right of abode.
Its decision is likely also to affect children born in the city to mainlanders.
Ma touched on immigration issues twice.
"When one is dealing with, for example, issues involving freedom of expression or immigration issues, public controversy is almost certain to arise," he said.
Ma gave as an example of the first such issue a 1999 case about desecrating national flags, but did not cite any examples of immigration-related verdicts.
Immigration cases were controversial, Ma said, because "a sizeable proportion of the community will have very strong views one way and an equally sizeable proportion of the population will have just as strong a view the opposite way".
"Sometimes, the vast majority will have strong views against only a tiny minority," he said.
The chief justice said the courts were occasionally "the last refuge open to a minority in society pitted against the excesses of the majority".
He stressed that, whether it was a high-profile case or a mere "run-of-the-mill" one, the judiciary applied a principled approach judging from the facts.
"No regard will be paid to whether the result will or will not be a popular one … certainly not to whether it will accord with what the majority of the community wishes," Ma said.
In terms of challenges to administrative decisions, Ma said while "some leeway" would be accorded to the government, "there is no question of any sort of carte blanche being given to the government".
Ma called it "healthy" to criticise the decisions of the courts, though he questioned the focus on the "actual result". "No doubt some people will only look at the actual result of cases determined by the courts in order to evaluate the integrity or effectiveness of a legal system," Ma said. "In my view it does not go far enough."
He said even when a decision was unpopular, "this is not as important as an assurance that every time a judicial decision is made, the court … above all, has acted independently". An "independent and fearless" judiciary was a characteristic of the common-law legal system, Ma said.
He also restated his wish for the legal system to remain as it is for "the next 50 years". "If the judiciary can continue to do what is expected of it, this then is a system that is worth preserving. As the community faces whatever challenges appear in the future, it will want to retain all those institutions that have served the community well in the past," Ma said.
He first stated last year his belief that common law should remain the basis of Hong Kong's legal system beyond 2047, the end of the 50-year guarantee stated in the Basic Law.
Wong Kwai-huen and Dieter Yih Lai-tak, the former and incumbent Law Society presidents, said Ma's speech should be seen only as a reiteration of long-established legal principles.