August 17, 2015 Arthur Lo
Hong Kong¡¦s independent judiciary and rule of law has long been a bedrock of success for the territory. Articles 2 and 19 of the Basic Law stipulate that Hong Kong ¡§shall be vested with independent judicial power, including that of final adjudication.¡¨ However, in recent years, Hong Kong¡¦s judicial independence has come into question.
Beijing¡¦s white paper on Hong Kong, issued in June 2014, demanded judges to be ¡§patriotic¡¨ and referred to them as ¡§Hong Kong¡¦s administrators.¡¨ Earlier this year, pro-Beijing legislator Elizabeth Quat questioned in LegCo whether there is a situation of ¡§police arresting people and judges releasing people.¡¨ In July, a decision by a deputy magistrate to sentence a female protester for assaulting an officer with her breasts sparked public outrage.
Here are six challenges facing Hong Kong¡¦s judiciary:
1. Excessive workload for judges
The judiciary annual report of 2014 found that the average waiting times for cases in the High Court did not meet the targets. In particular, at the Court of First Instance, the waiting time for a criminal case from filing of indictment to its hearing was 227 days, compared to the target of 120 days.
Dennis Kwok, legislator for the legal sector, wrote in 2013: ¡§Overworked judges and a backlog of cases have a direct impact on the quality of justice.¡¨
2. Difficulty in appointing judges
The judiciary administrator, who oversees the funding of the judiciary, said this year that there were 10 judge vacancies for the Court of First Instance at the High Court. There are currently 27 judges on the bench for the Court of First Instance. Kwok wrote in 2013 that nearly half of the judges of the High Court and the Court of Final Appeal will reach the statutory retirement age of 65 within the next few years.
Legislator Dennis Kwok said that although serving as a judge is a service to society and its income cannot be compared to private practice, ¡§income is definitely an issue to whether people are attracted to join the judicial service.¡¨
3. Judicial appointment process susceptible to political interference
Under the Basic Law, judges at all levels are appointed by the chief executive based on recommendations by the Judicial Officers Recommendation Commission (JORC).
The independent commission is composed of nine members, who are appointed by the chief executive. The chief justice and secretary for justice (SJ) are ex-officio members. Seven other members are: two judges, one barrister, one solicitor, and three people who are not connected with law.
The three persons currently include two individuals with business background and the President of Chinese University of Hong Kong.
The chief executive is required to consult the Bar Association and the Law Society on the appointment of a barrister and solicitor to the commission respectively.
4. Reliance on deputy magistrates and deputy judges
According to legislation, the chief justice can appoint deputy magistrates and deputy judges from the magistrate court up to the Court of First Instance. Deputy magistrates and deputy judges are required to meet the qualifications of their permanent counterparts.
These temporary appointments are done solely by the chief justice, without requiring the independent recommendation of the JORC. The deputy appointments can also be terminated at any time by the chief justice.
According to the court listings on August 7, 2015, in the Court of First Instance, cases were heard by 13 judges and 10 deputy judges or recorders, meaning a 3:2 ratio of permanent judges to temporary judges. Recorders are temporary judges who are appointed for a three-year term and sit in court for about one month every year. In the District Court on August 7, cases were heard by 11 judges and seven deputy judges, a ratio also close to 3:2.
5. Political neutrality of justice minister under question
Following the implementation of the principal official accountability system in 2002, the SJ became politically appointed by the chief executive rather than promoted from within the civil service. This means that the SJ is no longer bound to be politically neutral.
Following the publication of the State Council white paper in 2014, SJ Rimsky Yuen said, ¡§The publication of the white paper does not indicate an attempt [by the Chinese government] to interfere with Hong Kong¡¦s judicial independence.¡¨ The Law Society also defended the white paper, saying that ¡§the paper says five times that Hong Kong can enjoy judicial independence and final adjudication.¡¨
However, more than 1,800 legal professionals held a silent march in protest of the white paper in 2014. The Bar Association responded strongly against the white paper: ¡§Any erroneous public categorisation of judges and judicial offices as ¡¥administrators¡¦ or official exhortation of them to carry out any political mission or task will send out the wrong message to the people of Hong Kong.¡¨
6. Questionable power to prosecute the accused
The SJ has the sole responsibility to make decisions on whether or not to prosecute criminal offences. While the Criminal Procedure Ordinance stipulates that the SJ should consider public interests when handling such cases, the prosecution code set out by the Department of Justice states that there is ¡§no exhaustive list of the considerations to be addressed.¡¨ One public interest is ¡§the effect of a prosecution on Hong Kong law enforcement priorities.¡¨
In 2001, the Bar Association opposed the political appointment system of the SJ, stating that ¡§it is obviously important that decisions to take out criminal prosecution should not be interfered with by political consideration.¡¨ The association raised the possibility of an alternative system whereby the SJ would ¡§no longer be responsible for any criminal prosecution.¡¨
In addition, the majority of prosecutions in the magistrates¡¦ courts are conducted by court prosecutors who do not need any legal training except a a nine-month training period before starting work as a court prosecutor. Given that the highest sentence at a magistrate court is two-year imprisonment¡Xwhich is relatively severe¡Xin 2002, the Bar Association asked the Department of Justice to employ young, qualified barristers to the job.
According to the Department of Justice, out of 42 court prosecutors, only two officers have obtained full legal qualifications. The department noted that counsels would be employed to prosecute complicated legal cases.