Hong Kong should welcome the trend of citizen-led court watchdogs, not see the idea as an attack on judicial independence
Tony Kwok says monitoring programmes popular in the US and elsewhere, which safeguard public accountability, are effective in ensuring court proceedings and rulings are just
A “court watch” programme – set up to monitor judges to ensure they do not abuse the powers entrusted to them – may be an unknown concept in Hong Kong, and understandably be viewed with suspicion.
Yet, they are very common around the world. A quick internet search will confirm that there are many such organisations in the US, Canada and elsewhere, and they are accepted as a legitimate and effective check and balance mechanism in a democratic society.
In the US, many states and cities have set up their own court watch schemes, often for specific purposes. For example, King County, in Washington, has a programme that, through court monitoring, “hold[s] the justice system accountable for its handling of sexual assault and child abuse cases ... to create a more informed public”.
In Chicago, a watchdog group monitors the domestic violence court and publishes an annual report. In Louisiana, a programme was co-founded by the Business Council of New Orleans with a view to “observing and reporting on whether the judges, prosecutors, public defenders are doing their jobs professionally, transparently and without wasting taxpayer resources”.
Canada has nationwide court watch programmes. In Ontario, one scheme focuses on the domestic violence court, “to monitor the court proceedings from the perspective of outside observers, and to examine the functioning of the court in case dispositions and sentencing of offenders”.
Even Poland has a court watch programme, operated by a non-profit organisation aimed at “positive changes in the justice system through citizen court monitoring”. Its main activity is to recruit people to observe court proceedings, paying special attention to judges’ performance.
Of course, we cannot rule out the possibility that some of the schemes were set up for political reasons, or with ulterior motives. But in these days of public accountability, such a system is becoming an increasingly popular mechanism to enhance the rule of law and educate the public.
A proper court watch should, of course, operate within the bounds of the law, with guiding principles that hold no one above the law, and consider all judges, as public officials, to be subject to public accountability. It should also uphold freedom of expression.
On that, these programmes should find themselves supported by the principle in the classic case law of Ambard versus the Attorney General of Trinidad and Tobago (1936): “Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and the respectful even though outspoken comments of ordinary man.” The other well-known case law is the New York Times Co. versus Sullivan (1964), which protects the freedom of speech and freedom of the press. Although this US case law may not be applicable to Hong Kong, it does set an international standard, and should not easily be brushed off as irrelevant. In these days of advocating public accountability, where no one is above the law and ordinary citizens have freedom of expression, a court watch programme is becoming an increasing popular model.
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Let’s hope that any proposal for such a programme here would not be stamped on and viewed as an attempt to interfere with judicial independence, but instead a chance to facilitate a healthy public debate on whether Hong Kong needs such a check and balance mechanism.
Tony Kwok is a former deputy commissioner of the Independent Commission Against Corruption and currently an honorary fellow and adjunct professor of HKU School of Professional and Continuing Education