Judges ought to remember, that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.To what extent does Bacons view of the role of a common law judge hold true today? Do you agree with his statemen

We can therefore deduce that judges should only perform their distinctive role and not be politicised; otherwise, the impartiality of rule of law could hardly be upheld. In varies case laws, judges were condemned for going a step further, not ruling upon the law but also their personal opinion and moral code, called “judicial activism”. I will be addressing this issue later in this essay.

The doctrine of legislative supremacy provides that as a matter of English law there is no source of law higher than a statute. Albert Dicey, a noted English jurist wrote that the rule has two aspects: first, and positively, it means that Parliament may make or unmake any law. Secondly, and negatively, it means also that no-one may override or set aside the properly enacted legislation of the Parliament. In this sense, when there is a case law contradicting a statute, the statute should prevail.

One of the best‐known examples of judicial activism of judges giving a new law overriding an existing provision is the leading case of abortion in the United States, Roe v Wade. The Texas criminal abortion statutes had clearly stated that women cannot have abortion. However, the U.S. Supreme Court held that the whole unit of Texas criminal abortion statutes is unconstitutional. In the course of interpreting the Constitution this way, two important things occurred: the law was altered, indeed fundamentally reversed; and women were accorded the new right they not enjoyed before. The concurring judges in Roe might believe that they have the moral obligation and just to grant pregnant women a right to abortion, such decision however, is based on their personal perception of what is fair and just. Lord Diplock should condemn such decision. In Duport Steels Ltd v Sirs, he said,

“where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to it plain meaning because they consider that the consequences of doing so would be inexpedient, or even unjust or immoral”.

Hence, they should not have authority over law making but the Parliament, the public elected body, to make these kinds of controversial decisions. The progressive approach of these bolder judges may damage the predictability and certainty of the common law system.

How about when the legislation is obscured or ambiguous, or leads to an absurd result? Bacon shall support judges to interpret and apply the law in its original spirit. In R v Allen, the Court applied the mischief rule which focuses on the legislature’s intention. It considered a report of the Criminal Law Revision Committee in order to discover the mischief of the Divorce Act and convicted Allen with bigamy. In Royal College of Nursing v DHSS case, Diplock used the Mischief approach of statutory interpretation. He recognised it is a long and expensive process to pass and amend the law. Given that the intent of the legislation is clear, aiming to provide a proper and hygienic condition for abortion, judges shall “fix” the legislation because of expediency. Another example is the landmark decision of Pepper v Hart, the House of Lords used the Hansard to figure out the true intention of the legislature. However, the use of Hansard is very rare and careful, which limits the possibility of the court being politicised, hence, ensuring separation of power. In these cases, judges are not judicial activists because they only make the provision applicable, and not giving new laws.

However, a “wrongful” application of the mischief rule could result in judicial activism. In Medical Council of Hong Kong v Chow Siu Shek Bokhary J., suggested a guideline for statutory interpretation, which could be too broad:

“...in the context of the whole statute as a purposive unity in its appropriate legal and social setting…. identify the interpretative considerations involved and then, if they conflict, to weigh and balance them.”

The use of word “appropriate” and “social setting” could be absurd because there are always different opinions in the society and it is the job of the Legislative Council to discuss the social setting and balance the conflict. When the court stretches the meaning of certain words for it to be “inappropriate”, LegCo’s intention could be reduced to the indeterminacy of language. Judges who adopt such “open-ended” approach might therefore be bias because appropriateness is subject to individual opinion, and it is not the law.

Apart from the legislation, the common law system also includes case law which allows judges to develop the law gradually and incrementally, i.e. in R v R (rape: marital exemption). It has long been accepted law that a husband could not be guilty of the rape of his wife. The Sexual Offences (Amendment) Act 1976 defines rape as having 'unlawful' intercourse with a woman without her consent. Based on case law and the statute, the Court defines estranged husband and wife who are not yet “separated in law”, could also be called “outside marriage”, and ruled the probability of matrimonial rape. In this case, instead of creating a new law, judges applied ratios from previous cases and completed gaps in the legislation which can produce finality and certainty of the law. On the other hand, judges also got to adhere precedent from a higher court, or they may be called judicial activists. One famous case of judges accused of “usurpation of the legislative function” is Lawrence v Texas. It was held that consensual same-sex sexual activities are illegal based on Georgia’s sodomy statute in Bowers v Hardwick. However, Texas Court of Appeals referred to Bowers and held that the statute is unconstitutional. The ratio adopted by the court is that it has an obligation to define the liberty of all, not to mandate its own moral code. It seems to be no judicial activism, but based on the doctrine of stare decisis, judges should strictly uphold the previous decision made.

In today’s Hong Kong, the enormous growth of social dissent due to the undemocratic government raise the demand of the judiciary to take a more creative role in statutory interpretation. The growth of judicial review in the courts has increasingly questioned the use of powers conferred by the Legislative Council and the Government. This includes: reclamation of Victoria Harbour; public housing rental review; the Link REIT listing, etc. However, Hong Kong judges still seem very reluctant to go for the kind of judicial activism considered rampant in the US because it is impossible to approach the task by soliciting views from the public on what the law ought to be.  

In conclusion, judges can no longer claim that their function is a purely mechanical one of ‘discovering’ and ‘applying’. Judges’ adjudication is still mostly based on the legality issues rather than various political preferences. Their engagement in the statutory construction is, however, less progressive than in common law, which I think is an acceptable manner. I see the necessity of continuing such degree of judicial creativity to maintain the balance of the predictability of common law and meeting with social expectation of justice for people to respect it.

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