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It's vital that justice holds the balance of power

Alexander Hamilton, a founding father of the United States, once commented that the judiciary was the weakest compared to the executive and legislative branches as it had neither will nor force. [The Federalist Paper No.78]

However, an independent judiciary is indispensable in a limited constitution. In constitutionalism, powers are checked and balanced, and should be exercised based on rules and principles.

A quote from the great French political thinker Montesquieu tells how the separation of power and judicial independence is important to ordinary people. "There is no liberty, if the power of judging be not separated from the legislative and executive powers." [Spirit of Laws]

Good governance, in its most fundamental form, exercises public powers within the limits of law. The court has an essential role to play here. When an administrative action goes beyond the permit of law, or when a legal provision goes contrary to constitutional prescriptions, the affected party may seek justice from the court.

In other words, judicial review is the cornerstone of good governance.

The court's natural and inherent duty is to make judgment through deliberation based on principles, rules, open hearings and facts. Its judgment does not come from the judges' own will or the use of coercion. The court has neither.

Instead, it provides authoritative interpretations of legal rules and principles that best fit in the context and delivers a judgment accordingly. The court works on reasons.

There is a saying that disagreement between the legislative, executive and judicial branches is not good. And good governance should be based on co-operation among them.

But this is not how the separation of powers and good governance is to be understood. It is also not necessary to assume the three branches are bound to be in an antagonistic relationship. In our system, each branch simply performs a different duty.

If the court delivers a judgment that is not in favour of the government, for example, it is still a judgment made after deliberation based on rules and principles. The court simply carries out its natural duty.

The judiciary has an appeal mechanism to check its own mistakes about law and reasoning. It is still an open, deliberative process in which justice should not only be done but be seen to be done. Judicial independence, in this sense, means the preservation of the integrity of this rule-based process of deliberation.

The National People's Congress Standing Committee is constitutionally vested with the authority to interpret laws, including the Basic Law. This, of course, should be respected as a constitutional rule under "one country, two systems".

However, extra care must be taken before this authority is exercised, as the Standing Committee, having powers to make and interpret laws, is by nature a political institution founded on a political theory that knows no separation of powers. It does not work like a court when interpreting laws.

It was different before the handover. When a case was brought from the Supreme Court in Hong Kong to the Judicial Committee of the Privy Council in London, the latter functioned as the final appellate court of Hong Kong. The whole process was judicial.

A purpose of "one country, two systems" and the Basic Law is to maintain the law and legal system of the city. That is why the Court of Final Appeal was set up. When the power of the Standing Committee to interpret the Basic Law is exercised wantonly to override the CFA's judgment, it will defeat the purpose of "one country, two systems" and the Basic Law.

Judicial process should never be subject to the assessment of political correctness.


An edited version of this article appeared in the South China Morning Post on 26 Nov 2013.