Justice For The King: The Independence Of The Judiciary From Governmental Officials In Ireland And China

• Author: Mário Bil'o
• Position: BCL (International) III, University College Cork
• Pages: 31-38

[2012] COLR

31

JUSTICE FOR THE KING: THE INDEPENDENCE OF THE

JUDICIARY FROM GOVERNMENTAL OFFICIALS IN IRELAND

AND CHINA

Mário Bil’o*

A INTRODUCTION

The justice shall swear among other things that he will do justice without favour, to all men

pleading before him…1

The above statement made centuries ago by Sir John Fortescue captures the essential

dilemma that faces all the judges in the world. While on the face of it, it may seem an easy

enough obligation to fulfil, in reality there are a number of factors that can contribute to

denying this duty to the judge. The most prominent of these is the interference with the

judiciary, influencing the result of the case before the court and prohibiting justice to be done.

The aim of this essay is to look at such practise, comparing a country with a developed legal

system, Ireland, and a country whose legal system is still undergoing a lot of development,

China.2 The essay will specifically focus on the direct influence over the judiciary exercised

by the government officials, firstly by examining the concrete law behind judicial

independence in each other and subsequently putting it to the test by analysing real cases

focusing on the possible interferences from the state. Finally the essay will try to go a little bit

deeper and analyse the reasons for the difference in the two legal systems as well as provide

some suggestions for reform.3

B CHINESE CONSTITUTIONAL BACKGROUND

As readers of this article may be unfamiliar with the Chinese constitutional background, prior

to fully examining the judicial independence in China and comparing it with the position in

Ireland, it is important to examine it briefly. The present Chinese Constitution was adopted in

1982. It was seen as the first great step forward from the Maoist era and a sign of reforms to

come under the new leader Deng Xiaoping.4 While the constitution was revolutionary both by

its substance, granting rights and freedom to its citizens, as well as the sheer length of it, in

many ways it entrenched the dictatorship of the Communist Party in China.5

* BCL (International) III, University College Cork.

1J Fortescue Laudibus Legum Anglie SB Chrimes 1922 127-131.

2This is even more important when one considers that the Universal Declaration of Human Rights, Article 10

provides for a „full equality to a fair and public hearing by an independent and impartial tribunal‟.

3 It must be noted, however, that this essay looks strictly at the relationship between the state and its organs and

the judiciary. The Chinese Communist Party is not mentioned and nor should it, as the primary aim of this

article to is show the independence of the judiciary against the state itself. Thus, one must remember that

Chinese state organs are bound to follow the law by the law and by the constitution, like in any other cou ntry.

4K Zhou Chinese Legal Reform: Towards the Rule of Law (Martinus Nijhoff Publishers Leiden 2006) 30.

5Constitution of People‟s Republic of China 1982 Art 1.