Politics and the Law

June 14, 2017 13:55
Bias of any description is anathema to a sound judicial system. Photo: HKEJ

"You're only a cypher." This, addressed to me as a young barrister, unsettled me. My instant reaction was to take offense at the remarks. Yet the person who said it to me was an eminent barrister for whom I had enormous respect. What did he mean, telling me that I was a 'nothing'?

As I gathered the tattered shreds of my pride around me, he continued, “We, as individuals, are not important. We are merely pieces of the machinery of a system of justice.”

Though I felt distinctly diminished being referred to as piece of machinery, I noted that he had included himself in this description, so the prudent element of my bruised ego counseled me to be patient.

"People laugh at the wigs and gowns, accusing us of being anachronisms in modern times, but they fail to appreciate that by dressing in such a fashion we are adopting an appearance of uniformity that carries the message that we are all equal before the law."

It did occur to my still less than happy mind that the silk robes and fabric covered buttons on the jackets of Queen’s Counsel substantiated Napoleon Pig's assertion that 'some are more equal than others' but I was beginning to follow the thread of his argument. In the context of the legal system, a barrister has no innate importance.

To the observer, barristers in a court room could be male or female, young or old, tall or short, fat or thin but the conformity of wig and gown lends them an air of neutrality.

Today the gown has to be worn over sober black or darkest grey suits and white shirts but even this is an advance on the obligatory Queen Anne’s mourning costume, black jacket and waistcoat over striped trousers that were still de rigeur in the 1960s.

Compare this with an American courtroom where the lawyers can compete with each other sartorially; does the fact that you can afford an Armani suited counsel trump your opponent’s Yves St. Laurent dress?

Once the advocates open their mouths, of course, the foundation of neutrality disappears and individuality asserts itself no matter what the individual may be wearing. But in the English tradition, the uniform carapace reminds us that we are not entitled to individual opinions. The court room is not a debating chamber but a crucible in which the evidence is tempered.

As counsel, we are the medium through which our client speaks, shaping the client’s case to the best of our ability, informed by our knowledge and experience but constrained by the rules of court and professional ethics.

Two phrases that should never pass an advocate’s lips are "I think" and "in my opinion". What we think and what opinions we may hold, as individuals, are totally irrelevant to the issues before the court.

It is for this reason that I have always believed that politics should never be confused with the law. Over the years, I have had many barrister friends who were members of parliament or the Hong Kong Legislative Council and who wear their politics on their sleeves.

I do not criticize them; they are entirely free to lend their talents in support of one political party or another. My concern is to the extent that the judges, juries or magistrates before whom they appear may perceive their arguments as less than objective, simply because they subscribe overtly to a particular political party.

Judges and Magistrates, by virtue of their judicial duty of impartiality are far less prone than juries to consider an argument or submission as one colored by the political preference of the barrister.

By the same token, the barrister has to tread with special care to avoid allowing political preference to intrude upon his or her advocacy. There is, in addition, the need to guard against the ever-present risk of allowing a political consideration to color the objective judgment that we owe to our clients.

The English common law’s tradition of apolitical counsel applies with equal if not greater force to the judiciary. Because the majority of judges are appointed from a practicing bar which subscribes unequivocally to this tradition, we have an expectation that judgments will not be politically colored.

Bias of any description is anathema to a sound judicial system. The legal hurdle testing for bias is set low enough for a mouse to trip over. The focus is on 'the appearance of bias to a neutral observer'.

Judges are acutely aware how ready the public will be to detect political bias, and have to guard against any such perception. One of the greatest strengths of the Hong Kong judiciary is its absence of political affiliation. This paramount characteristic has been tested time and again since the handover and not been found wanting.

Hong Kong's judiciary, composed of both indigenous Cantonese and non-Cantonese judges, has an exemplary record of non-politically partisan performance.

Many, if not most of Hong Kong’s ethnically non-Chinese judges have invested the greater part of their professional lives in Hong Kong, married local girls and have children for whom this is, unquestionably, their homeland. Only an ignoramus would question their primary loyalty to the Hong Kong SAR.

The ignorant and the bigoted are quick to accuse but their accusations only reflect their own inadequacies.

Beijing’s increasing endeavors to influence the quality of life in Hong Kong will, inevitably, increase the covert pressure upon the judiciary to bend to its interpretation of the law. Close analysis of judgments shows that, to date, no such influence has penetrated judicial political impartiality.

As barristers, we have a special responsibility to maintain our role as black clad guardians of incorruptibility by keeping politics out of the courtroom. Perhaps less cyphers, more custodians of the code of conduct.

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Queen's Counsel