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The Forum > Article Comments > Sir Anthony Mason's judicial activism is alive and well, even in retirement > Comments

Sir Anthony Mason's judicial activism is alive and well, even in retirement : Comments

By David Smith, published 11/11/2003

David Smith argues that Sir Anthony Mason misrepresented the Australian Constitution to law students at the Australian National University

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Sequel - Sir Anthony Mason in Hong Kong

South China Morning Post, 14 April 2007

"Judicial failure needs inquiry

Alex Chan ("System riddled with problems", April 11) refers to "iniquitous" judicial abuses. I complained about judicial abuses to the Court of Final Appeal in the civil service pay-cut appeals - with overwhelming evidence in the form of primary documents. I applied to the bench to revisit a judgment - written by a non-permanent judge - on the ground that it was riddled with misrepresentations. The judgment ignored crucial evidence and arguments that were material to the outcome; worse yet, it relied on manufactured, altered, misattributed and otherwise inexcusably erroneous and misleading evidence and argument. This is a totally unacceptable manner of determining any case, by any court.

Contrary to the requirement for impartial justice, the bench retained the non-permanent judge despite my request for his replacement. The bench, contrary the requirement for open justice, dismissed my application in private, but publicly ridiculed it, and invited the government to apply for the costs of litigation that never occurred. The bench failed even to convene a court - which judges must do to confer themselves with jurisdiction. It delivered what, therefore, was more clearly still a non-judgment. It did not disclose the extensive facts, principles and authorities supporting my allegations that grave judicial misbehaviour had occurred.

The bench claimed that my grounds for application were "devoid of merit". If that was correct, then the bench was duty bound to refer unfounded allegations of such extreme gravity to the Director of Public Prosecutions for investigation of a possible offence of scandalising the court. When the bench subsequently ordered that I pay costs to the government, it did not mention my arguments that it lacked jurisdiction to issue further judgments or orders.

The rule of law, underpinned by judicial independence, impartiality and codes of conduct, is at least as much a core value of Hong Kong as academic freedom. It should equally be the subject of independent investigation where the judiciary fails demonstrably in its self-policing role.

Michael Scott, The Peak"
Posted by Transparency, Saturday, 21 April 2007 1:19:43 AM
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