The problem with confusing justice with law

The problem with confusing justice with law

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Thirteen pro-democracy activists pose for pictures outside Court of Final Appeal after learning they are free.
Photo: Sam Tsang/SCMP

Many politicians criticised the Court of Final Appeal after 13 activists won an appeal against their sentences for trying to storm the Legislative Council in a violent manner on June 13, 2014.

Some pro-establishment figures event went as far as to call Chief Justice Geoffrey Ma Tao-li “our society’s criminal”. Pan-democrats are no saints either because they, too, criticise the judges when court rulings go against them.

These days, there is a tendency for people to support decisions that are favourable to their own political camp while criticising those that go against them. Unsurprisingly, the narrative is always the same – there was “grave injustice” in the judgments and that when our current political system is so unjust, it is the court’s role to “fight back”.

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This is problematic on many levels. First, it is always unhelpful to delve into the concept of justice that we were never capable of clearly defining in the very first place, especially without going into detailed discussion of the court’s analysis. Former American Supreme Court justice Oliver Wendell Holmes once said: “This is a court of law, young man, not a court of justice.”

If justice is simply reduced to your support base, your gut feeling, or when judges are encouraged to ignore laws and hand down a ruling if they think it is the right one, it might make life much easier in the short term but create the potential for abuse of power.

Second, out of the three government branches, the court is the weakest one. There is a limited number of actions a judge could take outside of interpreting statutes passed by the legislature, and the judicial discretion afforded to them simply does not grant them the power to “fight back”.

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What’s more, while politicians can openly speak out against criticism, members of the judiciary cannot do so.

Although our executive branch still lacks a democratic mandate, to say that our Legislative Council is not functioning properly is not exactly right. In this situation, Hong Kong’s judiciary provides the checks and balances, preventing chaos in the city.

Currently, we have a stringent judicial review mechanism and the police force ordinance to limit the power of the executive and of public authorities. Those who criticise our courts blindly and engage in personal attacks are not doing Hong Kong any favours.

Edited by M. J. Premaratne

This article appeared in the Young Post print edition as
Don’t cherry-pick court decisions

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