22 February 2019
Our judges' determination to resist political pressure is key to preserving judicial independence in Hong Kong. Photo: HKEJ
Our judges' determination to resist political pressure is key to preserving judicial independence in Hong Kong. Photo: HKEJ

Conscience of judges is the only thing we can rely on

The former Legislative Council Building was officially reopened on Friday last week as the new headquarters of the Court of Final Appeal.

Among the guests at the opening ceremony were Zhou Qiang, president of the Supreme People’s Court of China, Chief Executive Leung Chun-ying and Zhang Xiaoming, director of Beijing’s liaison office in Hong Kong.

It must have been quite interesting to see Zhang, who publicly stated a few weeks ago that the chief executive had “superior power” over all other government branches, and Leung himself, who might also believe in his superiority, sitting side by side at the auditorium listening to Chief Justice Geoffrey Ma Tao-li’s speech on the true essence of the rule of law, in which Ma clearly affirmed the principle of judicial independence.

In fact, whether our judiciary can continue to remain independent and impartial depends not only on the system itself but also on our judges’ insistence that court decisions are made entirely according to legal principles under all circumstances.

However, the recent scandal over the appointment of the pro vice chancellor of the University of Hong Kong was a wake-up call that reminded us how people with absolute power can throw their weight around and influence people with less power to make inappropriate decisions on important issues.

The key to preventing that from happening is to make sure our appointment system can achieve a balance of power.

Under Article 88 of the Basic Law, judges of the various levels of courts in Hong Kong are appointed by the chief executive on the recommendation of an independent committee.

The truth is, however, that the committee is, in fact, not as independent as people might think, as the chief executive has the power to appoint seven out of its 10 members.

Besides, the Secretary for Justice is an ex officio member of the committee, which means the government can always count on eight votes out of 10 in the appointment of judges.

Therefore, even though our judges appointed under the current system have been able to remain largely independent and impartial under most circumstances, reform of the formation of the committee is still necessary, and some in the legal sector have already weighed in on this fundamental issue.

For example, Dr. Margaret Ng Ngoi-yee, the former Legco member representing the legal sector, has publicly proposed that the secretary for justice should cease being an ex officio member of the committee.

Apart from her suggestion, I think we should also consider allowing the chief justice, the ex officio chairman of the committee, to appoint two judges of his own choice to the committee, so as to strengthen its independence.

Unfortunately, any change in the formation of the committee would entail amending the law, and I don’t think the chief executive and the Department of Justice would be willing to do so unless there is enormous public pressure for such a change.

Therefore, at this stage, the conscience of our judges and their determination to resist political pressure will be the only thing we can rely on to preserve the independence of our judiciary.

This article appeared in the Hong Kong Economic Journal on Sept. 29.

Translation by Alan Lee

[Chinese version 中文版]

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Legco member representing the Legal functional constituency (2012-2016) and a founding member of Civic Party

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