Law and Justice Address to the Law and Justice Foundation
LAW AND JUSTICE ADDRESS
THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
THE LAW AND JUSTICE FOUNDATION
SYDNEY, 8 NOVEMBER 2001
Last week I was in Beijing lecturing at the National Judges College, with Sir Daryl Dawson, retired High Court judge, Justice Catherine Branson of the Federal Court of Australia and Justice Kellam of the Supreme Court of Victoria, the latter two being, respectively, the immediate past and current Presidents of the Australian Institute of Judicial Administration. This visit was organised by the Human Rights and Equal Opportunity Commission (HREOC).
The subject matter on which the Australian judicial team was concentrating in its participation in a training course for Chinese judges was judicial independence and judicial ethics. I know I speak on behalf of all of the members of the team when I say that our experience in Beijing was an entirely positive one.
The history of human rights abuses in the People’s Republic of China is well established and requires no elaboration. Nor does the continued existence of an authoritarian governmental regime. Nevertheless, there are people in China who are endeavouring to change the way the legal system operates by reforming the judiciary. Nothing that we experienced gives any indication as to the prospects of success for this endeavour. Nevertheless, there are indications that the effort is a serious one.
Our visit to China occurred under the general umbrella of the dialogue on human rights established between the Premier of China and the Prime Minister of Australia in August 1997. This dialogue is referred to as the Human Rights Technical Co-operation Programme. It is organised under the Department of Foreign Affairs and Trade and the Australian contribution is provided through the Australian Agency for International Development (AusAID), which has entered into an arrangement pursuant to which HREOC manages the implementation of the Technical Co-operation Programme. HREOC works directly with various Chinese agencies and acts as an intermediary between such Chinese agencies and their counterpart agencies in Australia, with a view to assisting the Chinese agencies to strengthen the administration, promotion and protection of human rights in China.
The contribution HREOC is making in this regard is a significant one. HREOC has arrangements with a number of different agencies in China. It has conducted a three month long course on human rights for officials from the Ministry for Foreign Affairs, the State Family Planning Commission, the State Ethnic Affairs Commission, the Supreme People’s Procuratorate, the Ministry of Public Security and the China Law Society. It has taken Australians who are prominent in human rights protection to a two day seminar in Beijing, which was attended by representatives from the China National Committee on Aging, the All China Youth Federation, the China Disabled Persons Federation, the All China Womens Federation, the Chinese Academy of Social Sciences and the Ministry of Foreign Affairs. It has also conducted a legal training workshop between officials of the All China Womens Federation and representatives of relevant Australian organisations such as the Womens Legal Resources Centre, the Domestic Violence and Advocacy Service, the Public Interest Advocacy Centre, the Waverley Domestic Violence Court Assistance Service, the Wirring Baiya Aboriginal Womens Legal Centre, the New South Wales Department of Community Services and the New South Wales Police Service.
Further seminars were held between representatives of the All Charters Womens Federation and a local womens organisation in one province on strategies for addressing family violence. Officials from the Ministry of Justice which is responsible for prison administration have visited Australia to investigate rights of prisoners. Similarly, officials from the Ministry of Public Security have visited Australia to look at the development and application of ethical standards in police forces.
The human rights dialogue represents a low-key form of diplomacy and international co-operation of a character much more likely to be successful, particularly with Asian nations, than the brash triumphalism which, on occasions, has appeared to be a national characteristic of Australian involvement with foreigners. Such aggressive self-assertiveness is generally a manifestation of insecurity and, often, of inferiority. There are, however, some spheres of discourse in which a quiet self-confidence on the part of Australians is entirely warranted. The operation of our justice system is such a subject matter.
On a number of occasions I have emphasised the significance of the longevity of Australian institutions of governance. This is a theme which bears repetition and I trust those who have heard it before will excuse me for doing so. We Australians like to think of ourselves as a young country. Indeed the second line of our National Anthem is: “For we are young and free”. However, when it comes to the basic mechanisms of governance, including both parliamentary institutions and the rule of law, this is not a young country this is an old country.
I hope that we can change our self-image in this regard. If we do so, then the national characteristic of brash self-assertiveness when dealing with foreigners may be tempered and, indeed, overcome. It is in our long-term national interest that we acquire the tone of voice that only self-confidence can bring. We surprised ourselves in this regard at the time of the Olympics. That event, in many respects, put us on our own map. Our international image and, indeed, our self-image, was altered by the recognition of a national strength. This is a place where things work. That is a basis for self-confidence. So too is our legal system.
Many of you will have heard me refer to the significance of the fact that the Supreme Court was established as long ago as 1824. If one reads the early judgments of the Court – many of which have been compiled and republished by the University of Macquarie on its website- the sense of continuity is palpable. The early judgments of the Court use concepts and manifest procedures with which we are still familiar. This continuity, now in excess of 177 years, is an extraordinary achievement by world standards. The Supreme Court has been operating in basically the same way for 125 years before the creation of the People’s Republic of China, indeed it has been doing so for about twenty years before the first Opium War began the process of undermining the Ch’ing dynasty.
This year we celebrate the Centenary of Federation. In 2006 we will celebrate 150 years of representative and responsible government. The contribution that these institutions make to our social welfare and economic prosperity cannot be underestimated. They stand, of course, in an even longer tradition.
Of particular significance for the matters on which the team addressed at the National Judges College in Beijing is the creation of an independent judiciary. The Act of Settlement of 1701, the 300th anniversary of which we celebrate this year, established that judges hold office for life, in lieu of the previous position, when judges held office at the pleasure of the King. This was one of the most significant outcomes of the long period of conflict between the Parliament and the Stuart Kings. The Act created an independent, and therefore impartial, judiciary on a basis that has never been questioned since.
Not all aspects of our traditions are equally admirable. The Act of Settlement of 1701 contains a grossly discriminatory provision. It is the legislation which ensures that the monarch of Great Britain, and therefore the monarch of Australia, cannot be a Catholic or be married to a Catholic. The politics of the regal bedchamber, as they traditionally existed, continue to determine contemporary constitutional practice in a manner that would generally be regarded as unacceptable.
It is not the only such anomaly. There remains the rule that the eldest male child succeeds to the throne. If Queen Elizabeth had had a younger brother she would never have become Queen. This is not a matter which will concern us for the next two successions to the throne, but it has been of significance in the past. Queen Victoria’s eldest child was a girl, also named Victoria. Once Prince Edward was born, she could no longer succeed to the throne. She was married off to the Crown Prince of Prussia and their son became Kaiser Wilhelm II, whose personal idiosyncrasies and grotesqueries of character feature high on every historian’s list of the causes of World War 1. England paid a high price for its sexism.
Given the purpose and the subject matter of the visit to China it was somewhat fortuitous that these matters were touched upon by Dr Steven Firtzgerald, our first Ambassador to China and now the Chairman of the Asia-Australia Institute at the University of New South Wales, when he addressed the New South Wales Supreme Court Annual Conference a few months ago, on the topic of “Issues Facing Australia’s Future in Asia”. In the course of that address to the judges of the Supreme Court, Dr Fitzgerald said:
“What we have to offer the region most, beyond economic partnership, and aid to countries that need it, is not military, nor is it leadership … It is the good governance and civil society that sustain our own rights, freedoms, accountabilities, democratic institutions and rule of law. In a range of countries across Asia, including for example China, there is increasing awareness of the place of good governance in economic performance, poverty reduction, and the capacity of societies to provide for their people generally and for the disadvantaged in particular. Because we are fortunate in these matters, our future in Asia, and the strengths of our own identity, can be secured by being a regional source and provider in governance, not simply under aid programmes but across a multitude of areas of collaboration (for example between judges and courts). And not in the jingoistic way that has often informed the projection of this idea by the United States, for example, or that we have seen in Australia in the recent past, but in the tradition of another kind of Australian, who has been in Asia since the beginning, who I have called ‘the quiet Australian’. And not with the message that only our tradition counts, but collaboratively, reaching back into all our traditions, including those of Asian societies, many of which are rich in ideas about good governance, ethical government and upright conduct. To do this is a contribution to humanity. It can help the region in its own terms for its own transformation. It can secure the best of what we want in the Australian identity.”
When I received the invitation from HREOC to lead the Australian judicial delegation to the training programme at the National Judges College in Beijing these observations, then so recently made by Dr Fitzgerald, acquired particular force. The subject on which we were asked to address Chinese judges was judicial independence and judicial ethics.
The members of the Australian judicial team divided up the issues and prepared papers on various subjects including judicial independence and impartiality, judicial ethics, accountability and disqualification for bias. We did so in a context of only rudimentary knowledge of the Chinese judicial system, at least in my case. It was, however, clear that the Chinese had no tradition of the rule of law or the institutionalisation of the judiciary as an independent and professional arm of government. There had been some interest expressed in the Western concepts of the rule of law and various announcements had been made, particularly in the context of the Chinese application to join the World Trade Organisation, to the effect that China’s legal system would develop in that direction. On a visit to China a year plus ago Chief Justice Gleeson of the High Court of Australia had met with Li Peng formerly the Premier of China but by that time the Chairman of the People’s Congress – roughly the equivalent of the Speaker of the House of Representatives. Li Peng, had gone out of his way to ask Chief Justice Gleeson to explain aspects of the rule of law to him.
There was and is a general Chinese interest in this subject. No doubt it was motivated in part by recognition of the significance of the legal system as China’s economy grew and its integration with the international economy developed. There was a growing realisation that serious people with serious money took this rule of law stuff seriously. Indeed, people who were asked for money seemed to require some kind of assurance that one day they might get their money back, even from people who were not relatives.
The significance of the legal system for economic prosperity, by the protection of property and the enforcement of contracts, which enable long term investment decisions to be made, had clearly come home with some force to the rulers of China. No doubt there are limits to the degree to which this development will be permitted to undermine the power that those rulers exercise within China. However, there were clear indications in the materials available to us before we arrived in China that the independence, impartiality, competence and quality of the judiciary were being taken seriously. These were matters about which some senior Chinese officials believed they could learn from other nations, including Australia.
On the first day that we attended at the National Judges College, we were presented with a volume of materials in both in English and Chinese, including the four papers which we had ourselves prepared,. These were the materials for the training course in which we were to participate, together with a number of Chinese lecturers. This volume included copies of the codes of conduct for judges in the United States, Canada, Italy and the laws regulating the judiciary in Germany, Canada and Russia. We were also presented, for the first time, with a Code of Judicial Ethics for Judges of the People’s Republic of China, which had been promulgated only a few weeks before, on 18 October 2001, by the Judicial Committee of the Supreme People’s Court of China. We also had the amendments to the national Judges Law of China which had come into effect a few months before. Together, the Code and the amendments represented a dramatic change in the organisation of the Chinese judiciary.
The purpose of the training seminar in which we participated was to convey these changes to the Chinese judiciary, for the first time. It was also to show how these new rules represented the practice of judges in other parts of the world, particularly Australia.
The hundred or so judges attending the seminar were, in large measure, we were informed, chief judges or deputy chief judges, (called Presidents and Vice Presidents) of the equivalent of District Courts throughout China. The training session commenced with a three-hour presentation by one of the Vice Presidents of the National Judges College who had clearly been closely associated with the drafting of the Code of Judicial Ethics. His presentation was interpreted for us as it was delivered.
The Code is an exemplary document. It draws on a wide range of models of such codes or guidelines throughout the world, even including the Code of Judicial Conduct of Taiwan. It contains express provision for matters of concern in China, about which we would have no concern e.g. the taking of bribes. These are matters which are appropriate for express provision in some nations and not in others. They will not receive express provision in the guidelines for judicial conduct which, I anticipate, will be issued on behalf of the Council of Chief Justices early in the New Year. The model which we regard as appropriate for Australia is a set of guidelines giving practical guidance for issues likely to arise in the Australian context. The Canadian approach is the model that we propose to adopt.
In the case of the People’s Republic of China, a formal code has been promulgated precisely for the purpose of changing actual practices. Accordingly, it is expressed in directory terms of ‘thou shalt’ and ‘thou shalt not’. No Australian judge would have any quibble with any of the fifty Articles of the Chinese Code. They are, as I said, an exemplary statement of judicial independence, of judicial impartiality and of judicial conduct.
The new Code gave a focus for the Australian judicial team. Each of us adapted our lectures to take into account the particular Articles of the Code which were relevant to our respective matters. In my own case, I was particularly concerned with the principle of open justice. The idea of open trials, where all relevant proceedings are conducted in public, was a relatively recent development in China. This was reinforced by the provisions of one Article of the new Code which required judges to give reasons for judgment.
This was one of a number of matters on which the judges in the training course entered into vigorous dialogue and questioning of the Australians, with a degree of candour which we found surprising. The problem of corruption within the judiciary was frankly acknowledged. So was the existence of limits to the freedom of discussion in which they could openly engage, although those limits were set much wider than had hitherto been the case. Of particular significance was the difficulty occasioned for the status and authority of the judiciary and for the rule of law by impediments to the enforcement of judgments.
It is clear that politically powerful administrative agencies and corporations had a capacity to ignore judgments, particularly those given against them by judges of other provinces. The issue of enforcement was raised with us and we, at first somewhat smugly, rejected any suggestion that a powerful government department or corporation would ever have the temerity to ignore a court order. We had to qualify our commentary after further consideration, because of the existence of examples in which fines imposed on trade unions by industrial courts had not been collected or had obviously been paid by employers. This was an example of an entirely salutary two way communication process that occurred in this training course.
The spirit and vigour of questioning that followed the papers was particularly welcome. It covered a wide range of matters and was often very well informed. In the context of the resource implications of the new obligation to give reasons, one of the Chinese judges asked the Australian judges to identify with precision the staff assistance they had for the purpose of preparing reasons. The judge inquired whether we in Australia had the American system in which “clerks”, in effect, wrote the judgments. Many quite pointed issues were raised of a character which would cause difficulties if raised in Australia.
For example, one judge asked whether a woman judge who had been sexually harassed should be disqualified from sitting on sexual assault cases.
It became clear as the questioning proceeded that the fundamental change in the nature of the Chinese judiciary that had been promulgated by the amendments to the Judges’ law and the new Code of Judicial Ethics would not be easily implemented. There are some 170,000 judges in China. They have not in the past had a reputation for quality or impartiality. The institutionalisation of the rule of law would plainly take time. The new Judges’ law required all judges to have both formal qualifications and practical training. The overwhelming majority of present judges would not qualify under the new Law. The sole qualification for many of them was that they were former officers of the Peoples’ Liberation Army. This was not a background which would readily acknowledge the requirements of natural justice, sensitivity to the appearance of bias or the need for reasoned decisions. It was accepted that the changes to the institutional nature of the judiciary in China which were being advocated would, if at all possible, take time.
One can expect that in the major trading cities such as Shanghai, these changes will be brought about more readily than in outlying provinces. What the political limits to a truly independent judiciary will prove to be have yet to be seen. One thing that was clear to us is that there is a significant body of opinion in the Chinese judiciary and its associated institutions that is determined to make fundamental changes. The announcement of the entry of China into the World Trade Organisation and the sense of being subject to international scrutiny which is palpable, at least in Beijing, arising from the Olympic games to be held in Beijing in 2008, creates a favourable climate for this development.
This is a project to which Australians can contribute in a manner which will be of significance to Australia for many years to come. This represents a recognition of what Dr Fitzgerald said, in the address to which I have referred, of “good governance” being an important part of “our regional stock in trade”.
This Australia-China human rights dialogue may, in a quiet but significant manner, contribute to the protection of human rights in China and, in the long term, to the strengthening of Australia’s relations with China. The Australian judiciary has a role to play in this programme and I am sure that it will continue to do so.
Australian delegations to China have not always been so well organised. (Read from “The Cultural Delegate” in Frank Moorhouse Room Service Penguin 1988).
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