• 最富中國特色的司法毒辣|戴啟思
  • 2020-07-04    

 

Judicial Independence with Mainland Characteristics

A legal wind from the North has been blowing hard these last couple of weeks. It has brought to several shocks. The one that has been especially severe is the news that the new National Security Law (NSL) will confer on the Chief Executive a power to nominate judges to hear national security cases. Judges holding this special ‘ticket’ to deal with this class of cases will, it seems, have to be Chinese nationals and possess no other nationality.

The details of this constitutional new deal are not known. The people are to have this new law thrust upon them with no notice and without even seeing a draft NSL. It seems that this secretive procedure is lawful in the Mainland.

That is unlike here, where drafts of written laws must go through a public deliberative process in Legco. The following analysis of this new power given to the Chief Executive could, therefore, be utterly wrong if, in the event, the NSL does not contain this new power.

Assuming that the reports about the NSL are accurate, this new power appears at variance with the provisions in the Basic Law that guarantee that the judicial power of the HKSAR will be exercised ‘independently, free from any interference’ (Article 85).

What is the meaning of judicial independence? It does not mean the qualities that we would all look for in a judge-experience, integrity, learning in the law and, above all, impartiality.

‘Impartiality’ is an essential quality in a judge. It means that he or she listens to the parties in court and treats them both the same. After hearing them, the impartial judge applies the law and does not let his or her personal views get in the way of making a decision where one litigant succeeds, and the other loses.

If the judge has a close connection with a party or a witness, he or she will disclose this and offer to step down from the case. If this does not happen, and the connection is later discovered, the decision is liable to set aside because of the appearance of bias, even if the judge treated the litigants fairly.

Appearances matter in judging. More so than in other areas. Any hint of unfairness or bias damages the image of judges. As one English judge said nearly a century ago, “Justice should not only be done but should manifestly and undoubtedly be seen to be done”.

‘Impartiality’ though is not sufficient. International human rights law which applies to Hong Kong and is found in the Hong Kong Bill of Rights Ordinance requires courts to be ‘competent, independent and impartial’ (Article 10).

“Competence” does not mean that a judge is appropriately qualified and able to do the job of judging. All of that is assumed in a judge when the Chief Executive first appoints a judge to office. “Competence” means that the court’s orders and decrees, when made, are obeyed and effectively executed.

A judge is a judge in name only if a judgment is ignored and no one enforces it. Courts show that they have this competence every time a defendant is received into the custody of the Correctional Services Department on the order of a judge or a Government department complies with an order that it should pay damages to a person who suffered an injury because of its fault.

I have dealt already with impartiality. ‘Independence’ is an institutional quality rather than something personal to a judge. It is the sum of all the measures that must be taken to guarantee that the judicial branch is not in the control of either the executive or legislative branch.

An independent judiciary is one where judges are guaranteed security of tenure until a maximum retirement office or until the expiry of the term of appointment. An independent judiciary is also one where if there is any question about the fitness of a judge to continue in office, then that is a matter to be dealt with primarily by the judicial branch.

Another hallmark of an independent judiciary is that even if the executive branch of government formally makes the appointment, the power of appointment is limited by requiring the executive to have regard to the views of the Judiciary or a commission appointed to make recommendations on judicial appointments.

In the HKSAR the Chief Executive has the power to appoint judges of courts at all levels ‘in accordance with legal procedures.

One of the ‘legal procedures’ is in the Basic Law. Article 88 of the Basic Law makes the appointment of a judge conditional on the recommendation of an independent commission ‘composed of local judges, persons from the legal profession and eminent persons from other sectors’. The Judicial Officers Recommendation Commission is this body. The Chief Executive cannot appoint a judge that has not been recommended by the Commission.

Other parts of Chapter IV of the Basic Law serve to insulate the Judiciary from the executive. These have to do with pay and conditions of service and the guarantee that a judge will not be removed from his post by the Chief Executive unless a tribunal of judges has first considered the case.

All these provisions are there to make sure that judges get on with the job of judging ‘free from any interference’. The senior judges in the various courts organise the diaries of judges by allocating cases to them based on availability and the specialisations of judges.

Judges who have an interest in family work and have relevant experience from their time in practice as a barrister or solicitor might expect to be allocated divorce and children’s cases. Judges who once had a good practice doing personal injury work can hope to judge some cases in this area of the law. What matters is that the allocation of types of judicial work and the assignment of individual cases is strictly a matter for the Judiciary and no one else.

The proposed new power for the Chief Executive to select judges to deal with national security cases is inconsistent with judicial independence. It creates a power of assignment that is not the same as, or a part of, the power of appointment. When lawyers are appointed to judicial office, they take the judicial oath, and they are then absorbed into the judicial branch of government, free from executive interference, including directions about what cases they must or must not handle.

It is executive interference, therefore, to cut across the autonomy of judges for the Chief Executive to assign judges to a case or a class of cases. It is made worse because the Chief Executive, as head of a proposed national security commission, would have an interest in the outcome of a national security case.

If judges are to be selected because of some aptitude to handle national security issues, it must be because they meet specific criteria set by her in her capacity as head of this new body.

People will look at the results of national security trials ending in convictions. Shrugging their shoulders, they will say “What did you expect? The defendant had not got a chance appearing before one of Carrie Lam’s National Security judges!’

This remark will be said even though the poor judge bearing this unfortunate label that marks him or her out from his colleagues who lack the required national security credentials had conducted the trial in an exemplary manner. A lawyer looking on would say that the judge showed fairness throughout the proceedings to both the prosecution and the defence.

However, what matters is how it appears to the ordinary citizen who is not a connoisseur of legal procedural niceties. He or she will not be persuaded that the defendant had a fair trial before a “biased” judge.

In the final event, judicial impartiality is not going to be enough without judicial independence.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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