Date
24 September 2017
As long as our courts can convince the public that the rulings are fair and just, and that judges only take into account nothing but legal factors when making their decisions, the public will have trust in our judiciary. Photo: flickr
As long as our courts can convince the public that the rulings are fair and just, and that judges only take into account nothing but legal factors when making their decisions, the public will have trust in our judiciary. Photo: flickr

How to preserve confidence in our courts

The fact that the Court of Appeal has overruled the magistrates’ court over a trespassing case involving three student leaders and sentenced them to jail has sparked a heated controversy.

A lot of people have raised doubts about the new verdict, and there is a widespread suspicion that the judges of the Court of Appeal could have been influenced by political factors.

Amid grave public concern, several heavyweights in the legal sector, including former chief justice Andrew Li Kwok-nang, quickly rallied to the defense of the court, asserting that public suspicions about the motives of the judges are completely unfounded and unjustified.

I don’t intend to argue whether the judges of the Court of Appeal could have been subject to political pressure in this particular case. While I agree with these heavyweights that upholding the authority of the judiciary is instrumental in maintaining the rule of law, I do feel compelled to take issue with their notion that the public should never ever doubt the independence and impartiality of our judges.

In fact, the so-called “authority” of our courts of law stems entirely from the righteousness of the decisions it made; whether or not there is public criticism of our judges is irrelevant.

As long as our courts can convince the public that the rulings are fair and just, and that judges only take into account nothing but legal factors when making their decisions, the public will have trust in our judiciary.

If the public senses that our judges aren’t making their decisions fairly and impartially, they will inevitably have doubts about their motives. And even though the courts could reduce members of the public to silence temporarily by threatening them with contempt of court charges, silence does not mean the public trusts the courts.

It often takes years, if not decades, to build the authority of and public trust in our courts, but at the same time, it only takes a very short amount of time to ruin everything.

That said, I believe members of the legal profession who are truly committed to defending the authority of our judiciary and our rule of law should speak out against the courts over mistakes and call for immediate corrective actions rather than pointing the finger at the average individuals who blow the whistle on the questionable decisions by our judges.

At the end of the day, the authority of our courts rests upon public confidence in our judicial system, not public silence over its wrong and unjust rulings.

Turning a blind eye to an unjust decision made by the court might not have instant repercussions on society, but if we let things continue this way, judges may think they can disregard the oversight by fellow legal professionals. There could be more unjust decisions. Eventually, that will take an irreversible toll on public confidence in our judiciary.

Meanwhile, I notice that there has been a prevailing notion among the legal profession that our judges are always incorruptible and able to resist any form of external interference so much so that public oversight of our judiciary is unnecessary, and that nobody should ever have even the slightest shred of doubt about our judges’ impartiality and judgment.

However, I find their excessive and unquestioning confidence in our judges incomprehensible and even irrational.

Like everyone else, judges are humans, and as long as you are human, you can’t be completely immune to things like political pressure, or the temptation of using your power to serve your own agenda. And that is why judges need oversight.

And as rule of law is among the most treasured core values of Hong Kong, I believe it is the responsibility of all citizens, not just the legal professionals, to uphold and defend the rule of law by staying vigilant and not hesitating to call out unjust or questionable decisions.

Perhaps members of our legal sector should focus more on how to restore public confidence in our judicial system rather than criticizing those who have the courage to cast doubts on the questionable decisions by our courts.

This article appeared in the Hong Kong Economic Journal on Sept. 2

Translation by Alan Lee

[Chinese version 中文版]

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RT/RA

Associate Professor of Law at the University of Hong Kong

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