San Francisco has one of the strongest Public Defender offices in the US. Its head is called the Public Defender and it is an elected position. Current Public Defender, Manohar Raju, recently stated that the criminal justice system in the US can be described better as a criminal punishment system. In the process of focusing on punishment, justice is often overlooked or even averted. Such a phenomenon exists not only in the US, but also in many parts the world. Very often, not only is justice not done but also not seen to be done. This unfortunate reality in the criminal punishment systems around the world often leads to miscarriage of justice. In Burundi, one of the poorest and most under-resourced countries in Africa, the work of civil organizations has resulted in the country taking an important direction concerning courts deciding upon criminal cases. In 2013, Burundi codified the principle “Freedom is the rule, detention is the exception”. One may say that for a poorer country like Burundi, where the justice system is under-resourced and some prisons are even 300 percent overcrowded, such an approach makes sense. But more resources do not mean courts are able to make just decisions. When it comes to resources, proportionately more are available to police and the prosecution in many criminal justice systems. Many people get wrongfully convicted due to insufficient resources allocated to defense lawyers, and, especially to public defenders and legal aid mechanisms, governmental or non-governmental.

When justice takes the form of a punishment system, the role of judges is especially important. If a judge’s decision appears to be unfair or unjust to the general public, the integrity of the judiciary will be undermined. Here, it is important to reflect on the phrase “justice should not only be done, but should be seen to be done”, which originated from a case in England almost 100 years ago. The case addressed an important principle of impartiality and recusal of judges. Impartially here means judges should be objective and their decisions should not be based on biases and prejudices; recusal refers to the act of abstaining from taking part in a legal proceeding due to a conflict of interest. This important case set the precedence that the appearance of bias is sufficient to overturn a judgement. In other words, for true justice to be done, a trial in a court not only needs to be fair, just and unbiased but also seen to be fair, just and unbiased.

In times of political turmoil, judges in particular can come under tremendous pressure. I have met many great judges from Asia, Africa, Europe and the Americas. The best ones are the most intelligent and diligent yet humble. Many told me that people often forget that judges are human beings, too. They also stressed that there is tremendous burden on them to make sure not only justice is done, but also seen to be done. To achieve that, they would often remind themselves that they had to put aside any biases they had. When failing to do so, they would recuse themselves from cases. That is not to say a judge should recuse himself often, or there would be not many judges around to hear cases. What that really means is judges have to make a genuine effort to get rid of their biases, be they cultural, religious or political, when hearing the prosecution and the defense sides, so as to make the most objective decision.

When it comes to punishments meted out by judges, I remember some training session of judges almost 25 years ago. There were judges from Asia and the Pacific at the training. During the first part, the principle of the rule of law was discussed. There was a group of Chinese judges who kept entirely quiet throughout the first two days. On the third day, after a few drinks one of them asked the interpreter to translate what he was going to say verbatim. He said: “There is no rule of law in China.” He went on to describe the situation in China where judges were not free to make their own decisions. The training also included a mock trial on a murder case. A group of Asian judges conducted a common law trial and convicted the accused to life imprisonment. The group of Chinese judges held a mainland-style trial and convicted the accused to death. Then they justified why the accused had to be executed. A few years later, a judge from India who was at the training visited China and met with some of the judges. The Indian judge was accompanied by the same Chinese interpreter, who was a law academic. The interpreter told the Indian judge that since the said training, none of the judges had ever given a death sentence in capital trials. This goes to show that even under the most difficult circumstances and immense political pressure, some judges can still act with courage. When the criminal investigation system itself has problems, including biases and a lack of professional capacity, it is dangerous to sentence someone to death. The Chinese judges who took part in the training came to realize the limitation in the Chinese justice system, and therefore they changed their approach when handling capital cases.

Currently the spotlight is on the judiciary in Hong Kong. The burden on judges to not only to do justice but also make sure justice is seen to be done is bigger than ever. Competence and impartiality of judges add to the integrity of judiciary. Members of the public expect judges to be impartial and fair. When justice is seen to be done, the rule of law flourishes.

(Yan Kei, Advocate for criminal justice reform)

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