Press Release

 

 

Judiciary must rise to challenges in the new century

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The following is issued on behalf of the Judiciary :

To enable the rule of law to continue to thrive, the Judiciary must rise to exciting challenges of the new millennium in the administration of justice and meet greater and rising community expectations.

The Honourable Chief Justice Andrew Kwok-nang Li said today (Wednesday) when addressing the 16th Biennial LAWASIA Conference held in Seoul.

"The challenge for the Judiciary will be to perform the constitutional role and the adjudicative role, in a rapidly changing environment in a manner which commands the respect and confidence of society," Mr Justice Li said.

The Chief Justice noted that it was not the function of the Judiciary to meddle in matters which were properly within the responsibility of the Executive and the Legislature.

"But the Judiciary has a vital constitutional role to ensure that the Executive and the Legislature act within the constitution and the law, that there is no abuse of power and that the fundamental rights and freedoms of citizens are safeguarded.

"This constitutional role of the courts will continue to grow in importance.

"The increasing complexity and sophistication of human affairs has led and will continue to lead to a growth in legislation and administrative regulation," the Chief Justice said.

On the effective discharge of that role, Mr Justice Li said the courts were faced with balancing, and it was often a difficult balance, between the rights of the individual on the one hand and the interests of society as a whole.

The Chief Justice noted that court decisions in the constitutional area were often controversial.

"In this difficult and controversial area, the challenge for the courts is to uphold the constitution and the law and maintain the enduring values of a civil society.

"Judges should act fearlessly, irrespective of popular acclaim or criticism," the Chief Justice said.

The Chief Justice stressed that court decisions were and should be subjected to public debate as such debate would have the benefit of informing and educating the public about the judicial system and the issues at stake.

Further, the right to scrutinise judgments of the courts was a constitutional right which should be vigorously and responsibly exercised in a free society, he said.

Turning to its adjudicative role, the Chief Justice commented the challenge for the Judiciary would be to maintain and improve the court system and that meant a fair and efficient system for the resolution of disputes.

The Chief Justice said that judges would have to recognise that court time was a public resource and that as with all public resources, it was limited.

Courts would, therefore, have to ensure that its procedures were appropriate to minimise cost and delay in dispute resolution, he said.

But the Chief Justice pointed out however sound the procedural framework, it would only be effective to minimise cost and delay if judges adopted a proactive approach in case management.

"Effective case management is essentially a matter of judicial culture and attitude and is of vital importance.

"With effective case management, the court (and not the parties) would supervise and ultimately control the amount of judicial time spent between the commencement of proceedings and the trial, on the trial itself and any appeal," the Chief Justice explained.

The Chief Justice also said that rising legal costs for litigants was a serious concern as the affordability of legal representation directly affected the citizen's constitutional right of access to the courts.

The Chief Justice noted the charging of legal fees by reference to the time spent was a common feature in many jurisdictions and had been criticised as inevitably leading to higher costs.

"One possible solution is to have fixed or maximum legal costs by reference to the amount of the claim.

"This can be laid down in legislation and enforced by the courts when they exercise their power to award costs in favour of the winning party against the losing party," he said.

The Chief Justice pointed out that another possible solution was to have contingency fee arrangements.

"If contingency fees are allowed, there must be strict ethical standards which must be rigorously enforced.

"Each jurisdiction will have to consider carefully for itself whether, having regard to its own tradition and the stage of development of its legal institutions, contingency arrangements will be in the public interest," the Chief Justice said.

The Chief Justice said the rising trend of litigants in person had also posed challenge to court systems as the court would be faced with a situation where there was inequality of strength or inequality of arms as between the parties in case only one party was in person and the other was legally represented.

"To cope with litigants in person, one possibility is to establish tribunals with a special jurisdiction which would operate a simple and informal procedure and would not allow legal representation.

"Tribunals of this type could adjudicate disputes within their remit expeditiously and economically, with litigants in person well able to cope with their procedures, " Mr. Justice Li said.

The Chief Justice said the courts should regard arbitration and mediation, which was and would continue to be part of the administration of justice landscape, as complementary to the court system.

The Chief Justice noted that to improve efficiency, the courts must get up to speed and keep pace with the use of technology. There must also be ongoing training for the judges so that standards could be maintained and improved.

The Chief Justice added that though there was no magic solution to the challenges, with increasing globalisation, it was important for there to be cross-fertilisation between jurisdictions so that each could learn from other's thinking and experience.

End/Wednesday, September 8, 1999

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