Judicial independence

In recent times, criminal damage has been repeatedly inflicted on our court buildings through graffiti. Some went as far as making derogatory remarks against specific judges which may amount to contempt of court. It is bewildering as to what such acts could achieve except a futile attempt to undermine the very core value that we cherish and respect.

Judicial independence is the key building block to our society. These rampant acts and statements, and for that matter, any views expressed in society or media, would not in any way usurp the decision making process in court proceedings, nor will they affect our judicial independence as our judges will continue to decide cases based only on evidence and law, setting out how they have arrived at such decisions in their judgements, which are available to the general public. They have taken a judicial oath to administer justice without fear or favour and it is their duty to so do.

Judges in Hong Kong are appointed upon the recommendation by a statutory committee comprising nine members including the Chief Justice of the Court of Final Appeal, the Secretary for Justice, two judges from the Judiciary, one barrister and one solicitor, as well as three eminent and respected members of the society not connected with the practice of law. Our judges would not be subjected to any political vetting. The only criteria upon which they are considered before appointment is the judicial and professional quality that contributes to our renowned judicial independence.

Judges enjoy security of tenure and immunity. Upon the appointment, district court judges and above are precluded from returning to practice in Hong Kong as a barrister or a solicitor. This “non-revolving door” system has worked well in preventing perceived potential conflict of interest and enhance the independence of our judiciary.

Our judges manifest the highest professional and judicial quality as well as impartiality through the reasoned judgements that they deliver. Hong Kong cases are often cited in overseas jurisprudence evidencing the confidence and respect of the global legal community in Hong Kong’s judicial and legal systems.

The institutional framework described above, the guarantee of judicial independence explicitly set out in the Basic Law and the quality of our judgements contribute to the much respected judiciary and rule of law in Hong Kong. To top it all is that eminent and highly respected judges from apex court of other common law jurisdictions sit on our Court of Final Appeal as Non-Permanent Judges. They sit on all types of cases, from commercial, criminal to constitutional and have witnessed Hong Kong’s system in administering justice.

One of our Non-Permanent Judges of the Court of Final Appeal, the Right Honourable the Lord Neuberger of Abbotsbury (former President of the Supreme Court of England and Wales who presided the Brexit case), pointed out in a seminar in 2017 that his own direct experience as an Non-Permanent Judge since 2010 proved that the Permanent Judges of the Court of Final Appeal are as institutionally independent and impartial. He also said that he has every reason to believe that this is equally true of the judges in the other courts of Hong Kong. He even said he would not be sitting in the Court of Final Appeal if he had any serious concerns about judicial independence or judicial impartiality in Hong Kong.

More recently, the Right Honourable Beverley McLachlin, PC, another Non-Permanent Judge of the Court of Final Appeal and also a retired chief justice of Canada, described in an interview ( https://nationalpost.com/news/courts-immune-to-pressure-from-china-ex-canadian-chief-justice-says-after-hong-kong-judging-stint) that Hong Kong’s law is very rigorously applied, the judges are very high calibre, it is a very high level of judging, and the court is independent.

These remarks from eminent and respected judges from around the world speak volume about Hong Kong. One cannot help but be perplexed as to why some chose to try to undermine these core values baselessly and insidiously. It behoves on each of us, in particular the legal sector including the two branches of the legal profession, to protect our judicial independence that underpins Hong Kong’s success and encourage others to join hands through our own sphere of influence. It is high time we bring back the Hong Kong we are familiar with.

January 5, 2020