Judicial impartiality

Public trust and confidence in a legal system rely heavily on the judicial system and, in particular, on the way in which judges conduct themselves, both inside and outside the courts. This column discusses the concept of judicial impartiality by reference to internationally recognised principles, and the rules that apply in two jurisdictions – the Hong Kong Special Administrative Region and mainland China. It then outlines a current inquiry into judicial impartiality in Australia by the Australian Law Reform Commission.

The concept of judicial impartiality, which includes the need for judges to avoid bias and conflicts of interest, is an integral element of the notion of justice. As this column has previously noted, the notion of justice has often been depicted in Western culture in the form of a blindfolded lady, Lady Justice, who carries a sword and a set of scales. The blindfold represents objectivity and impartiality, and the concept that everybody is equal before the law.

The scales represent the need to weigh or balance the evidence on both sides of a dispute before arriving at a decision, reflecting the concept of fairness. The sword represents swift and final punishment, and is usually held with the blade pointed downwards, or below the scales, to show that the weighing of evidence precedes punishment (for a discussion about justice, see China Business Law Journal volume 11, issue 7: The notion of justice).

The need for judges to be impartial, and for the public to have confidence in the impartiality of judges, is also reflected in the dress that judges wear in court (for a discussion about court dress, see China Business Law Journal volume 10, issue 9: Wigs and robes).

Like other people, however, judges are vulnerable to natural biases as a result of their personal background and world view. It is therefore important for judges to minimise the risk that their judgment will be influenced by natural biases by receiving training and increasing their awareness of areas in which natural biases may arise. One area in which judicial training is becoming increasingly important is strengthening judicial awareness of cultural diversity (for a discussion about this area, see China Business Law Journal volume 11, issue 3: Culture in the courtroom).

International principles

The Bangalore Principles of Judicial Conduct arose following a meeting that was held in 2002 between a group of judges from both common law and civil law jurisdictions. When the Bangalore principles were endorsed by the UN Commission on Human Rights in April 2003, they became an important statement of internationally recognised principles to guide judges in respect of their conduct. The Bangalore principles identify six core values: Independence; impartiality, integrity; propriety; equality; and competence and diligence. Each of these values is supported by relevant principles.

In relation to impartiality (Value 2), the Bangalore principles identified the following principle:

Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself, but also to the process by which the decision is made.

The above-mentioned principle reflects the notion that justice must not only be done, it must also be seen to be done. It also reflects the reality that the process by which a decision is made not only affects the decision itself, but also the way in which the fairness of the decision is perceived by those who are affected, and the broader public.

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew is currently on secondment to the ALRC as special counsel to assist with its inquiry into corporations and financial services regulation. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com