Kemal Bokhary on Law and Justice (HKLJ)

"Law and Justice"
Kemal Bokhary
Hong Kong Law Journal, Vol. 54, Part 3 of 2024, pp.579 - 585

Abstract: Law and justice, to a lawyer who has spent a working lifetime in court, dwell in the judicial administration of justice according to law, which is a joint effort of bench, profession and academy. Justice is to be delivered with ease, certainty and dispatch. Litigation is apt to cause litigants anxiety, distress and annoyance, making demands on their time, effort and finances. We must try to ease that. Compromise can restore harmony. Fighting to the bitter end perpetuates enmity. As for certainty, unclear laws are useless. Dispatch avoids denying justice by delaying it. As to the order of priority between them, finality is good but justice is better. The earliest forms of procedure ousted anarchy, but the procedure even of the fairly recent past had many defects. Those defects sometimes caused injustice. Nowadays, rules of procedure are understood to serve, not clog, justice. Looking at old decisions, we sometimes see situations in which modem procedure would produce fairer results. The letter of the law is the law’s body while its sense ad reason is its soul. Constitutional cases are to be decided with fidelity to the constitution’s letter and spirit, and to accord with the highest ideals of the people at their best. For every wrong there is a legal remedy. But it need not be a common law remedy. Fundamental principles must be certain in essence, but flexibly applied as circumstances require. Access to the courts is an arterial right, being the avenue for seeking judicial justice. Public interest litigation should be funded so that people are not prevented from bringing public interest cases for lack of funds, or deterred from bringing them by fear of being ruined by an adverse order as to costs. People will exercise their right of access to the courts if they are aware of that right, and have faith in the law and the courts. Let us be proactive in pursuing justice, and scholarly in discourse. Much remains to be done.