【Text: William Waung (retired High Court judge)】
Silent March 2014 against The Beijing White Paper
1. In June 2014, in response to the Beijing White Paper calling for the requirement of patriotism by Hong Kong Judges, the lawyers of Hong Kong in support of judicial independence, organized a Silent March. The Silent March was attended by some 1,800 lawyers. Both the Hong Kong media as well as the international press reported on this event.
2. What is the significance of that Silent March. It expressed the strong concern in Hong Kong, specially of those involved in the practice of the law, that judicial independence could be under threat and required defending.
3. What is so important about judicial independence in Hong Kong that drew the large attention of the media in Hong Kong? The best way to explain this is to start from 1997, when Basic Law became Hong Kong’s constitutional document and the Court of Final Appeal (“CFA”) started sitting.
Sir Anthony Mason in the CFA as embodiment and symbol of
HK Judicial Independence
4. The Basic Law provides for Hong Kong to exercise and enjoy independent judicial power, including that of final adjudication (Art. 2 and Art. 19).
5. The Basic Law provides for the power of final adjudication in Hong Kong to be vested in the Court of Final Appeal which may as required invite judges from other common law jurisdictions to sit on the CFA (Art. 82)
6. The Basic Law provides the courts of Hong Kong to exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions (Art. 85).
7. The Basic Law provides for the appointment of the Judges of Hong Kong on the recommendation of an independent commission (Art. 88).
8. The Basic Law provides that a judge of the Court of Hong Kong may only be removed for inability to discharge his or her duties or for misbehavior, by the Chief Executive (“CE”) on the recommendation of a tribunal appointed by the Chief Justice (“CJ”) of the CFA and consisting of not less than 3 local judges (Art. 89). In the case of removal of the CJ of the CFA on the above grounds, the tribunal appointed by the CE shall consist of not less than 5 local judges (Art. 89).
9. The Basic Law provides that in the case of the appointment and removal of Judges of the CFA and the Chief Judge of the High Court, the CE shall in addition to the Art. 88-89 procedures, also obtain the endorsement of the Legislative Council (Art 90).
10. The Basic Law provides that the HK SAR Government shall pay to judges who retire or leave the service or to their dependents, all pensions, gratuities, allowances and benefits due to them on terms no less favourable than before, irrespective of their nationality or place of residence (Art. 93).
11. All the above provisions of the Basic Law, which reflect the Joint Declaration between Great Britain and China are to ensure that the people of Hong Kong would continue post 1997 to enjoy as before, the same kind of freedom and justice under a judicial system where judicial independence would be the continuing basis of public confidence.
12. A particular important aspect of measures to ensure public confidence is that the final court of appeal in Hong Kong would consist not only of local Permanent Judges (‘PJ”) but also distinguished visiting judges from common law jurisdictions to be known as Non Permanent Judges (“NPJ”).
13. The early success of the CFA was due largely to the vision and wisdom of Andrew Li, the first CJ of the CFA in appointing some of the most prominent judges from the common law world which includes Sir Anthony Mason, Lord Coke, Lord Millett and Lord Hoffman.
14. It is to be noted that none of these prominent overseas judges would accept appointments as NPJ if they were not confident that Hong Kong would continue to enjoy true judicial independence.
15. Sir Anthony Mason is a particularly important Non Permanent Judge. As one of the most distinguished former Chief Justices of the High Court of Australia (a Court held in the highest esteem in the international common law world), from day one he assisted the first Chief Justice, Andrew Li to ensure that the HK Judiciary would function and perform to the highest expectation of the international legal world and would continue to have true judicial independence.
16. Sir Anthony sat in the CFA on some of the most difficult early cases including cases of controversial interpretation by the Standing Committee of the National People’s Congress (Art. 158). HK Judiciary survived these testing times, with Hong Kong’s judicial independence intact, or at least the perception of judicial independence.
17. Perception of judicial independence is the key to judicial independence. This is an aspect often spoken on by Sir Anthony Mason and indeed by many of his Australian Judges of the High Court. Judicial Independence is a matter of the greatest importance in Australia and to the Australian people. Judicial independence is one of the most robust and fertile subjects of public discussions in Australia as shown by regular and important judicial lectures and conferences on judicial independence, going back from at least the early eighties up to recently in July 2015 when Sir Anthony Mason gave the keynote speech in the 2 days Conference on Judicial Independence in Australia.
18. In 1981, Sir Ninian Stephen of the Australian High Court at his trail blazing Southeby Memorial Lecture on judicial independence, made reference to the essential public confidence that accompanies judicial independence which is more easily destroyed than built up. He made this legendary statement on judicial independence:-
“an independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed .”
19. In November 1996, Sir Gerard Brennan, who succeeded Sir Anthony Mason as Chief Justice in 1995, gave the speech on Judicial Independence at the Australian Judicial Conference. He said:
“… the object of the Australian Judicial Conference is … in the public interest, to ensure the maintenance of a strong and independent judiciary as the third arm of the government in Australia. ……. judicial independence exists to serve and protect not the governors but the governed …. The reason why judicial independence is of such public importance is that a free society exists only so long as it is governed by the rule of law – the rule which binds the governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought….. there is an aspiration in the hearts of all men and women for the rule of law.
That aspiration depends for its fulfilment on the competent and impartial application of the law by judges. In order to discharge that responsibility, it is essential that judges be, and be seen to be, independent….. modern decisions are so varied and important that independence must be predicated of any influence that might tend, or be thought reasonably to tend, to a want of impartiality in decision. Independence of the Executive Government is central to the notion but it is no longer the only independence that is relevant.
Appearance, no less than the reality, of independence is essential. The judiciary, the least dangerous branch of the government, has public confidence as its necessary but sufficient power base. It has not got nor does it need the power of the purse or the power of the sword to make the rule of law effective, provided the people whom we serve have confidence in the exercise of the power of judgment…..
Today the community looks to the courts to adjudicate disputes in areas extending far beyond the areas of jurisdiction invoked 50 years ago. Reposing that function in the judiciary, the community examines judicial performance of the function more critically than hitherto. Of course, this development demonstrates the confidence of the community in the judicial branch of the government: a confidence that is not misplaced so long as independence from impermissible influences is jealously maintained.”
20. In 1997, the Sir Anthony wrote the leading Article in a book dedicated to examine the contemporary state of judicial independence in Australia, “Judicial Bastion – Judicial Independence in the Nineties and Beyond”. The Title of his Article is Appointment and Removal of Judges, a specific but important aspect of judicial independence which will be discussed in a later section of this Paper.
21. In 2002, the unexpected Asian economic downturn created a situation in Hong Kong where civil servants were forced by the Government to take a statutory pay cut. The HK Government tried to include the Judiciary in the statutory pay cut. The Judiciary under the Chief Justice Andrew Li strongly resisted this serious encroachment on judicial independence. The Judiciary commissioned Sir Anthony Mason to produce a Consultancy Report on the System for the Determination of Judicial Remuneration. The February 2003 Mason Report examined with great care:-
– Judicial service pay system in Hong Kong (Chap. 2)
– Judicial Independence – a constitutional principle (Chap. 3)
– Judicial Remuneration – Positions in Various Jurisdictions (Chap. 4)
– Recent Reviews of Systems of Judicial Remuneration (Chap. 5).
22. Chapter 3 contains the important analysis of the inter relationship between judicial independence and reduction in judicial remuneration. The Report at paragraph 3.3 to 3.7 said:-
“3.3 … To protect judicial independence, it is necessary to ensure that the judges’ remuneration package is and continues from time to time to be sufficient and that is properly protected from reduction or erosion.
3.4 Direct reduction of judicial remuneration is an obvious violation of judicial independence. An indirect reduction of judicial remuneration is also a violation of judicial independence.
3.5 Further, the allocation of adequate resources is essential for the functioning of an independent Judiciary….
3.7 In Hong Kong, the Basic Law incorporates a separation of powers. It fully recognizes the principle of judicial independence and the institution of an independent judiciary.”
23. In the Final Chapter on Recommendations, Sir Anthony Mason said at paragraph 6.3, 6.4 and 6.10:;-
“6.3 Constitutional or legislative prohibition of reduction in judicial remuneration is an essential element of judicial independence. The prohibition is absolute in all the jurisdictions reviewed in this Report except Canada. In addition to England and Wales, the United States, Australia, New Zealand and Singapore, other major jurisdictions (with a common law tradition or elements) which have absolute prohibitions include India, Ireland, Malaysia, Philippines and South Africa.
6.4 The presence of the absolute prohibition in all such major jurisdictions means that it is widely accepted safeguard for the protection of judicial independence. The rationale of an absolute prohibition is that the principle of judicial independence is so fundamental that any risk of its jeopardy must be avoided.
6.10 An absolute prohibition should be adopted in Hong Kong. It fully protects judicial independence… The case for an absolute prohibition in Hong Kong is stronger than in other jurisdictions such as Canada, Australia and the United States where judges, after retiring, can return to private practice. Retired judges cannot do so in Hong Kong … Hong Kong Judges, who sacrifice higher remuneration on appointment to the bench, are therefore more dependent on their judicial remuneration than judges in other jurisdictions.”
24. Recommendation 1 of the Mason Report is that legislation should be enacted prohibiting absolutely any reduction in judicial remuneration. The Mason Report made a total of 9 Recommendations.
25. The Government accepted the critical importance of judicial independence. The Government did not proceed with the proposed Judiciary pay cut.
26. The Hong Kong public accepted the decision that the Judiciary be exempted from the proposed pay cut. Why did the people of Hong Kong whose aspiration for democracy and equality is known to be so strong, seem to accept this unequal (or special) treatment of the Judges. Was this because the Hong Kong public appreciated that judicial independence is more important than the equal treatment of the temporary cut.
27. Although the people of Hong Kong did not know all the components of judicial independence, they know the final product of these components, which make up judicial independence, is not only essential for Hong Kong but essential for the long term protection of the Hong Kong people (the governed per Brennan at para. 19) from the Hong Kong Government and from Beijing (the governors per Brennan at para. 19).
28. Sir Anthony Mason who wrote the Mason Report is well known in Hong Kong. His judicial work in Hong Kong was intimately connected with the high quality impartial discharge of judicial function applying the law and the large community and political forces which tend to influence the impartial decision of the CFA. From the early controversial decisions on right of abode to the latest decision on sovereign immunity, all involving interpretation by NPC, Sir Anthony Mason was in many ways the embodiment and symbol of Hong Kong Judicial Independence.
Components of Judicial Independence
29. When judicial independence is referred to, the underlying assumption is that there is a good judiciary to serve the people, which requires judicial independence to enable it to carry out its proper function. Therefore the first component of judicial independence is a good judiciary consisting of competent professional judges.
30. There is a well established system in Hong Kong for the appointment of Judges by an independent statutory body. From 1997, the Hong Kong Judicial Officers Recommendation Commission (“JORC”) pursuant to the Ordinance of the same name, has been the statutory body responsible for the appointment of Judges. Membership of JORC consists of the CJ, the Secretary of Justice (“SJ”), two Judges, one barrister, one solicitor and three lay members not connected with the practice of the law. The statute does not permit members of the Legislative Council or civil servants to be members of JORC. The selection process is secret but it is known to be on merit. It is the function of JORC to appoint highly skilled professional lawyers as Judges who can be expected to be independent.
31. To induce highly skilled professional lawyers to join the HK Judiciary, it is necessary for the Judges so appointed to have both security of tenure as well as a sufficient judicial financial package. The Judges are appointed until the retirement age of 65 and there is therefore a long tradition in Hong Kong of security of tenure for the Judges.
32. The sufficiency of judicial remuneration has been a matter of some difficulty specially in the recruitment of highly skilled senior professional lawyers for the High Court, as there is a substantial difference in pay between the income of highly skilled senior lawyers in the private sector and the judicial remuneration package offered by the Judiciary. The adequacy of judicial remuneration is overseen by an independent body, the Standing Committee on Judicial Salaries and Conditions of Service (“Judicial Committee”) which recommends to the Government the appropriate level of judicial remuneration for every level of the Judiciary.
33. Security of Judges from capricious removal is assured by provision in the Basic Law. Any such removal can only be by an independent tribunal on publicly shown grounds of inability or misbehavior. There has been no case in Hong Kong of removal of a Judge.
34. Judiciary and its Judges can only function properly if it is adequately funded for all its operation. There is no legislative protection in Hong Kong for such adequate funding of the Judiciary to ensure its proper operation. Mason Report in Recommendation 2 makes such recommendation as will be discussed below. But as a matter of practice, both the Government as well as LegCo have shown from past performance that there would be adequate funding for the Judiciary.
35. The institutional protection of judicial independence is a subject addressed by the Basic Law. But the Basic Law does not make any specific reference to personal independence of the Judges. This leads me to the final section, my personal view on Judicial Independence in present day Hong Kong and in future.
Personal View on Hong Kong Judicial Indepedence, Now and the Future
36. With judicial independence, the Judges individually and the Judiciary collectively, can discharge its proper function – namely independent, impartial, neutral, efficient and high-quality professional adjudication.
37. Traditionally, the judicial independence was directed against independence from the executive Government and from the legislature. But times have changed. The Government and the legislature have often gone into alliance and the courts are often left to be the last bastion for the protection of minorities, individuals or unpopular causes against the encroachment of their legal interests by powerful political and business interests in Hong Kong. As can be seen from the various speeches and articles coming from the Judiciary Conferences in Australia, pressure can be directed against the Judges from many quarters such as the community, the press, interest groups etc.
38. What is not sufficiently appreciated is the vital importance of personal independence of the Judge. Justice Barak, the former Chief Justice of the Supreme Court of Israel said this:
“Personal independence is independence from relatives and friends, independence from the litigating parties, independence from fellow judges and judges responsible for managing the system (including the president or chief judge of the court), independence from officeholders in the other branches of government. The judge’s master is the law. The judge has no other master. From the moment a person is appointed as a judge, he must act without any dependence on any one.”
39. The life of a Judge is a very lonely one, as by necessity he must always guard against any impermissible influence or even appearance of influence from any quarter that might have an adverse bearing on his independent, impartial, neutral, efficient and high-quality professional adjudication.
40. One story will be sufficient illustration of the concept of personal independence. When I was a Judge, my social engagements were very limited, confined to family, very close personal friends and very few lawyer friends. When my wife and I attended invited social dinners from time to time, another invited lawyer guest would often at the last minute send his excuses for non-attendance because he was involved in a current case in my court. That lawyer knew that otherwise I would be forced to excuse myself from attending the dinner. This is common practice in Hong Kong to avoid giving rise to any appearance of unacceptable influence on the Judge. This is to be contrasted for example from the judicial scene in China where it is not considered unacceptable for PRC lawyers currently engaged in a case to speak privately to the PRC Judge, quite often about the case.
41. What cannot be known to the outside is the internal pressure on personal independence in the HK Judiciary on his ability to fully discharge his judicial function as Judge. There is unknown pressure on Hong Kong Judges by excessive work load, inadequate system of fair distribution of judicial workload, no proper management of court lists by court leaders, no proper learning of case management techniques or introduction of new procedures to cope with increasingly complex litigation. Judges are constantly known to take holiday leave (running into days) in order to write their outstanding judgments. Demands made on modern Judges, even on those few who can be said to be highly skilled senior professionals and who are natural pro-active Judges are formidable. All these and other pressure often lead to pressure from higher Judges or fellow Judges or appearance of such pressure, which could have an adverse impact on the end product of the impartial adjudication by the Judge. These are aspects which have received little attention in Hong Kong and particularly disturbing is that it is largely unknown (except within the Judiciary) by those who ought to be concerned such as the JORC, the Secretary of Justice, the law professors, the LegCo members responsible for the administration of justice, the legal profession and the media.
42. JORC should be the first body to be concerned as the selection of professional lawyers for appointment as Judge should not be exclusively be concerned with high professional ability of the candidate. As Sir Anthony Mason pointed out in his July 2015 Key Note Speech in the Judicial Independence Conference:-
When we look for new judges, we should only have candidates who are known for their independence. (Rule Of Law)
43. Therefore the character of lawyers being considered for appointment as Judges should be a matter of primary importance. Reputation of independence of character is not an everyday quality in either solicitors or barristers but it is a quality recognized and known. A weakness of character in a lawyer (irrespective of intelligence and ability) should be a warning to JORC. The same reasoning applies to appointment of junior judge to a higher court. The character of independence of the junior judge ought to be a key factor in the determination.
44. Independence of character in the Judge must be the primary quality sought in a Judge. As Sir Harry Gibbs of the Australian High Court put it, judicial independence:-
“means that no judge should have anything to hope for or fear in respect of anything which he or she may have done properly in the course of performing judicial functions.”
45. Hope and fear are normal human characteristics. Even for Judges, how many can say they do not hope for advancement or approval or they do not fear criticism or disapproval.
46. The strength of character of independence to a large extent also depends on ability. A lawyer or a judge who has a deep knowledge and understanding of the law is more likely to have the intellectual capacity to express and defend his views. But not every lawyer or judge who has the knowledge and capacity will also have the character to express and defend his views. The strength of character can be sometimes seen in the presentation of barristers before the Court and the way the barrister defend his views, specially against sometimes the onslaught of a Judge without an open-mind. Strength of character can also be seen in the judgment of Judges, whether at first instance or in appellate courts. At first instance, strength of character as well as ability can be detected in the refusal to take the easy route of following blindly precedent when justice calls for fresh thinking on the law. In the appellate court, the delivery of dissenting judgement requires courage, character and high ability, specially when it is against the current. The system of common law legal system is a study of the developing power and strength of its jurisprudence contributed in no small measure by the system of dissenting judgments. This is largely in contrast to the old fashioned continental legal system which depends on one single judgment of the court. Legendary Dissenting Judgments such as that of Lord Atkin in the 1941 war time case of Liversidge v Andersonor Mason, J. in 1982 Hospital Products Ltd. on fiduciary obligation are testaments to the strength of character of those Judges. Australia is of course a land of legendary strong independent Judges. Not for nothing that the Australian Judges for years refused to sit in the Privy Council until the Privy Council in 1966 changed its Order and allowed Dissenting Opinions to be given. Australia has always understood that today’s dissent and its reasoning could be the law of the land in 5 or 10 years time. Dissenting Judgment encourages critical thinking and puts pressure on every member of the appellate court to put on its full thinking cap. Dissenting judgment discourages laziness in the appellate court as in a tight case, every member of the appellate court must give their separate judgment with their articulated reasons. Dissent is often the best manifestation of judicial independence.
47. Connected to dissent and strength of character is the important virtue of open-mindedness of a Judge in impartial adjudication. Open-mindedness is the willingness of a Judge to consider views that are opposed to his personal preconceptions but the Judge is open to persuasion. It is a crucial quality required for a fair and impartial adjudication but it is often found missing. Strength of character and certain amount of humility is required for a Judge to listen to an argument contrary to his preconception and be prepared to change his mind. Chang of mind of a Judge after hearing argument contrary to his preconception is often a sign of strength of character and not weakness. At the opposite end, is the Judge who has no inclination or character of open-mindedness. The Judge has already decided and would not allow any waste of time. In such a Court, whether at first instance or the Court of Appeal, a case set down for 3 days will finish in 10 minutes. This happens more often than it should, and clearly does not give the impression of impartiality expected from the Court and in the long run, erodes the confidence of the public in the law and in the fairness of adjudication by the Judiciary.
48. There are at present a number of aspects of the HK Judiciary which are not ideal in relation to Judicial Independence. I will here mention a few.
49. The recruitment of the top senior lawyers to join the judiciary is not easy (as there is a very large drop in income) and I understand it is a constant struggle to persuade the very best to join the senior Judiciary. The intake of the senior Judiciary in Hong Kong has a much larger percentage of in-house promotion from the District Court than say the equivalent in UK or Australia. Inevitably, these younger Judges would command less expertise and experience than when the UK Silks used to be appointed to the Hong Kong High Court Bench. They would also have less confidence specially when the very best UK Silks are appearing before them. If they are not strong and independent, the quality of the justice can sometimes suffer. This is a long term difficulty which must be faced.
50. The inability to recruit the right lawyers to the senior Judiciary has resulted in a perpetual lack of Judges in the Court of First Instance. We have seen specially from the last 10 years, an extraordinary large numbers of temporary judges sitting more or less on a permanent basis. At first instance in the High Court, often there are as many deputy judges sitting, as regular Judges sitting. The system of regular deployment of large number of temporary judges (many who are retired Judges of over 65) is a serious erosion of the principle of judicial independence, as temporary judges are serving, without independent appointment, without permanent tenure and without security and they serve at the pleasure of the Chief Judge and the Chief Justice (as in England before 1640, judges served at the King’s pleasure). In many jurisdictions, temporary judges are not permitted to sit as being unconstitutional. Whether it is constitutional or not, the system of using on a regular basis, so many temporary judges (even temporary judges above the age of 75) cannot be seen to be good for judicial independence in Hong Kong. In some ways, it can be said that all the judicial independence safeguard put in place for the regularly appointed Judges is undermined by the practice of using on a regular basis large number of temporary judges. It is a joint responsibility of the CJ, the SJ, JORC and LegCo that this long standing problem needs to be tackled. Otherwise when our political climate changes for the worse and HK Judiciary no longer enjoys the same high confidence of the community, any judgment of such temporary Judges specially on a controversial matter will be subject to criticism, adverse comment, challenges as to lack of jurisdiction, if not worse.
51. The increasing social and political divide in Hong Kong has exposed the Judiciary often into a helpless position when it is neither properly defended by the Secretary of Justice nor by the Chief Justice nor by both leaders of the legal profession. The White Paper is one recent example. This generates low morale in the Judiciary which cannot be good either for future recruitment or for judicial independence or personal independence. The Judiciary and Hong Kong must prepare for the future when the worse might come and Judiciary is left to defend itself but cannot or will not speak. The Judiciary Administrator is a civil servant and in more ways than not, is on the side of the Government rather than of the Judges. As far as I can see the community puts very little credibility in that post or its occupant who is generally regarded as trying to keep her head down. Too often the impression given to the community is that too many at the top whether in JORC, Government, legal profession, independent bodies or even some press are all too close to power or to Beijing or if not, only too ready to please Beijing and that those who are not and dare to speak out, are branded or attacked.
52. With the recent political turmoil, one aspect of our system is suffering from great strain and that is the proper role of the Secretary of Justice. When the SC is a prominent promotor of constitutional reform which is opposed by many in the community and by the Bar Association, the credibility of the SJ is increasing called into question. But he occupies the key position in JORC, in Exco, LegCo, head of Department of Justice and traditional defender of the Judiciary. Time must come soon, when the SJ’s proper role must be re-examined specially in the near future when there will be seen to be a risk of subtle undermining of judicial independence.
53. LegCo which can be a defender of proper administration of justice and judicial independence in recent years has seen such internal turmoil that it does not have the time or the energy to oversee as it should, that judicial independence is properly preserved and thriving. There could be regular sitting of legislative oversight to examine the actual situation of the Judiciary and the state and reality of judicial independence. LegCo should meet the Judges and hear from them and not through the filter of the Judiciary Administrator who is a career civil servant more on the side of the Government than of the Judges. Perhaps some lesson can be learnt from the change in the practice of English Judges. Apparently between January 2003 and December 2013, 72 judges appeared on a total of 148 occasions before UK Parliamentary Committees. Gee, Hazell, Malleson and O’Brien in their book “The Politics of Judicial Independence in the UK’s Changing Constitution” assert that the relationship between the judiciary and Parliament has undergone a structural change and that Select Committees “have developed into key guardians of judicial independence and the rule of law”. (derived from draft of Sir Anthony Mason KeyNote Address, July 2015 kindly supplied by the author to William Waung)
54. Finally, I would suggest that Hong Kong should set up at our University, an independent Institute of Judiciary Studies which would hold yearly or bi-yearly Conference on Judicial Independence as done in Australia. The study and continued vigilance on Judicial Independence should not be left exclusively in the hands of the Judiciary but should be extended to the more independent and specialist hands of the university as in Australia. At such Conference, local and foreign jurists and academics should be invited to speak and to discuss. A respected legal academic should be separately appointed to be its head. A reading of the programme for example of the July 2015 Judicial Independence in Australia Conference will readily reveal why Australia enjoys such robust judicial independence and such outstanding jurisprudence. Sir Anthony Mason was assisted by top legal academic in writing his Key Note Speech and the 2 days 19 Papers Conference is packed with thinking of the highest order. Hong Kong and its people need to build up our confidence in our judicial independence and that confidence will only come when we are constantly vigilant in maintaining and defending our Judicial Independence.
Dated 29th July 2015