Judicial independence premised on solid infrastructure and judicial practice

At times, there have been discussions in the international community on judicial independence. Most people tend to focus only on the outcome of judgments. Yet, it is the solid infrastructure and the judicial practice on which judicial independence is premised that play the pivotal role. This year marks the 25th anniversary of the establishment of the Hong Kong Special Administrative Region (HKSAR) and it is a timely occasion to remind ourselves of the fundamentals of judicial independence.

In Hong Kong, judicial independence is constitutionally guaranteed by the Basic Law. Articles 2, 19 and 85 of the Basic Law expressly provide that an independent judicial power, including that of final adjudication, is exercised by the Judiciary, free from any interference. Judges enjoy security of tenure and immunity from legal action in the performance of their judicial functions, and can only be removed for inability to discharge duties or for misbehavior as set out in Article 89. These safeguards ensure that our judges, who took the judicial oath upon their appointments, administer justice without fear or favour and without bias, based only on the law and evidence before them.

The appointment process also forms an integral part of the solid infrastructure. As set out in Article 92 of the Basic Law, the only criteria upon which judges are appointed is their judicial and professional quality, and their appointment by the Chief Executive is based on the recommendation of an independent statutory commission comprising nine members including three eminent and respected members in society not connected with the practice of law. Article 92 also stipulates that judges may be recruited from other common law jurisdictions. Hence, unusually, there is no nationality requirement for judges of all levels of courts. There is also no political vetting in the judicial appointment process.

Following the enactment of the National Security Law on June 30, 2020, there have been unfair criticisms with regard to the formation of a list of designated judges who handle cases of endangering national security. Some even falsely claim that the Chief Executive could handpick judges to preside over national security cases. These accusations are not only baseless but also factually incorrect. First of all, the designation of judges by the Chief Executive only establishes a list or panel of judges for dealing with national security cases.

Secondly, the listing and handling of cases, as well as the assignment of which judge or judges are to handle cases have always been judicial functions to be exercised by the Judiciary independently.

Thirdly, it is not uncommon for courts to designate specialist judges dealing with a particular area of law. In Hong Kong, there are judges who are in charge of construction and arbitration list, commercial and admiralty lists, etc. Similarly, the English courts also have specialised divisions with specialist judges dealing with, for instance, commercial and admiralty matters. Through the provision of specialist judges who are more familiar with a particular area of law, there is a better chance to achieve predictability and certainty of law. This will also reduce the risk of erroneous or arbitrary application of law. All in all, it is conducive to the rule of law.

Contrary to the inaccurate statements questioning the independence and impartiality of designated judges, a designated judge would decide cases independently and impartially. In other words, they are free to decide a case based only on applicable law and admissible evidence, free from any interference. A judge should have an open-mind and remain impartial, not influenced by any extraneous matters or personal interest. The practice of this can be seen in the judgments delivered by the courts setting out the full reasons for arriving at the decision.

The practice of open court hearings and judgments with reasons demonstrate to all objective and fair-minded observers that transparency and due process are observed with judicial independence honoured. If I may quote what the Chief Justice of the Court of Final Appeal said at the Ceremonial Opening of the Legal Year 2022: “For those who are interested in finding out how the constitutional guarantee on judicial independence in Hong Kong is practised on the ground, our court hearings are open to the public, our judicial decisions are publicly announced, and the courts’ reasons are published for everyone to study”.

The constitutional bedrock upon which our judicial independence is premised will not be shaken. With a strong, robust and professional legal fraternity, our judicial system will continue to remain intact and robust. Whatever happens, it lies in all of us here in Hong Kong to ensure that the bedrock is preserved and judicial independence is honoured.

March 30, 2022