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Demonstrating Judicial Independence in Increasingly Politicised Times

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Demonstrating Judicial Independence in Increasingly Politicised Times Commonwealth Law Conference 2017 Tuesday, 21st March 2017 Session C2: Independence of the Judiciary and Legal Profession Demonstrating judicial independence in increasingly politicised times The Hon. Mr Justice Joseph Fok, PJ1 Introduction 1. At Hong Kong’s Ceremonial Opening of the Legal Year in January 1997, held less than six months before the transfer of sovereignty over Hong Kong by the United Kingdom to the People’s Republic of China (“PRC”), the Acting Chief Justice of Hong Kong2 concluded his speech with this stirring warranty: “Let me finally assure all of the people of Hong Kong that they have an independent, capable and hard-working judiciary, versed in the common law and that they have a judiciary which will, without fear or favour, administer that law in the coming years.” 2. This year, in which the twentieth anniversary of the Handover falls, is a timely occasion on which to reflect on the subject of judicial independence in Hong Kong. 3. The resumption of sovereignty over Hong Kong by the PRC under the principle of “one country, two systems” gives rise to interesting contrasts 1 Permanent Judge of the Hong Kong Court of Final Appeal. 2 Noel Power Ag CJ, later Sir Noel Power. 1 between the two systems. Perhaps nowhere are those contrasts more apparent than in relation to the legal systems of the PRC and Hong Kong. 4. Given Hong Kong’s unique position as a common law system operating within the sovereign territory of a country governed under the Communist Party of China’s ideology of socialism with Chinese characteristics, the preservation and protection of judicial independence in Hong Kong are matters of great importance and present interesting challenges. 5. In January this year, in relation to judicial independence, we in Hong Kong were reminded of a stark difference in the two systems when the President of the Supreme People’s Court was reported to have told provincial judges in the PRC to reject what he called “erroneous” Western ideas of judicial independence and the separation of powers.3 That he made those remarks is understandable given the Constitution of the PRC, under which the National People’s Congress (“NPC”) is the highest organ of state power,4 to which the Supreme People’s Court is responsible.5 6. For my part, I believe judicial independence is firmly established in Hong Kong and that, whilst questions are raised from time to time concerning the rule of law in Hong Kong – and there is a need to remain vigilant to protect it – the assertion of the Acting Chief Justice made in early 1997 is still true today. Demonstrating judicial independence 7. When a judge makes a pronouncement that the judiciary of which he is a member is independent, it is likely to elicit a response akin to that famously 3 http://www.scmp.com/news/china/policies-politics/article/2062829/lawyers-urge-chinas-top-judge- quit-over-controversial. 4 Constitution of the PRC, Articles 57 and 67. 5 Constitution of the PRC, Article 128. 2 delivered by Mandy Rice-Davies.6 So how does one, from within a judicial system convincingly demonstrate judicial independence to outsiders? 8. I believe that can be done by reference to the following matters: (1) The constitutional arrangements under which the judiciary operates; (2) The source and background of judicial officers; (3) The reasoned judgments of the courts; (4) The response of government institutions and private parties to those judgments; (5) The reactions of others in the face of perceived threats to judicial independence. 9. The specifics of each of these matters will differ from country to country, and I will confine myself to addressing them from the perspective of Hong Kong, but there is clearly much common ground between the jurisdictions represented at this Conference in respect of them. The constitutional arrangements 10. The constitutional arrangements for Hong Kong are set out in the Basic Law of the Hong Kong Special Administrative Region. That Law was enacted 6 While giving evidence at the trial of Stephen Ward, charged with living off the immoral earnings of Christine Keeler and Rice-Davies, it was suggested to Ms Rice-Davies by defence counsel that Lord Astor (with whom it was alleged she had been intimate) denied an affair or having even met her, to which she replied, “Well (giggle) he would, wouldn’t he?”: https://en.wikipedia.org/wiki/Mandy_Rice-Davies. 3 by the NPC to give effect to the Joint Declaration, the 1984 agreement between the UK and the PRC setting out the terms of China’s resumption of sovereignty over Hong Kong. 11. The concept of judicial independence is expressly enshrined in the Basic Law. Under Article 2, the NPC authorises the Special Administrative Region “to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.” The Basic Law then vests in the Region independent judicial power, including that of final adjudication, in two further articles.7 12. The judicial system previously practised in Hong Kong is maintained, except for those changes consequent upon the establishment of the Court of Final Appeal (“CFA”). 8 The CFA was established as the final appellate court of the Region, replacing the Privy Council in that role, with the power of final adjudication.9 13. Thus, the Basic Law expressly provides that the courts of the Region “shall exercise judicial power independently, free from any interference” and that “[m]embers of the judiciary shall be immune from legal action in the performance of their judicial functions.”10 14. Other articles of the Basic Law make provision for the following matters in respect of the judiciary: 7 Basic Law, Articles 19 & 85. 8 Basic Law, Article 81. 9 Basic Law, Articles 81 & 82. 10 Basic Law, Article 85. 4 (1) Judges in Hong Kong are appointed by the Chief Executive “on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors”. 11 This is the Judicial Officers Recommendation Commission, established under its own ordinance,12 whose deliberations are independent and confidential. (2) Judges have security of tenure since they may only be removed for inability to discharge their duties, or for misbehaviour, by the Chief Executive on the recommendation of a tribunal consisting of other judges.13 (3) Judges shall be chosen “on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions”.14 (4) Judges take an oath to uphold the Basic Law and swear allegiance to the Hong Kong Special Administrative Region,15 which includes a solemn oath to “safeguard the law and administer justice without fear or favour, self-interest or deceit”.16 15. Finally, in this respect, I would mention the application in Hong Kong of the provisions of the International Covenant on Civil and Political Rights 11 Basic Law, Article 88. 12 The Judicial Officers Recommendation Commission Ordinance (Cap.92). 13 Basic Law, Article 89. 14 Basic Law, Article 92. 15 Basic Law, Article 104. 16 The full text of the judicial oath reads: “I swear that, in the Office of a Judge of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit.” 5 (“ICCPR”). The rights under the ICCPR are embedded in the laws of Hong Kong at a constitutional level and also in its domestic law, being given constitutional protection under Article 39 of the Basic Law and applied in Hong Kong through the Hong Kong Bill of Rights Ordinance (Cap.383). Amongst those rights are the rights under ICCPR Article 14 requiring adjudicative processes to be fair and impartial and observably so. 16. All these provisions are consistent with an institutionally independent judicial system. What of the source of the personnel making up that judiciary? The source and background of judicial officers 17. The recruitment of judges in Hong Kong is by way of open recruitment exercises. Applications are then considered by the Judicial Officers Recommendation Commission. The basic threshold qualification for appointment as judges is a relevant period of practice as a barrister or solicitor or advocate in a court in Hong Kong or any other common law jurisdiction having unlimited jurisdiction either in civil or criminal matters: 10 years for the High Court17 and 5 years for the District Court.18 18. Hong Kong’s legal profession is a split profession, consisting of barristers and solicitors. Prior to the establishment of law faculties at the tertiary institutions in the 1970s, the great majority of Hong Kong lawyers qualified in England and Wales before admission in Hong Kong. Those lawyers were therefore trained in the principles on which the two branches of the profession are based in that jurisdiction. This carried through to the newly formed law faculties so that lawyers trained locally in Hong Kong were also 17 High Court Ordinance (Cap.4), s.9(1) and (1A). 18 District Court Ordinance (Cap.336), s.5. 6 trained and instructed in the ethics and independence of the two branches of the profession. Consequently, judges in Hong Kong are recruited from amongst members of an independent profession.
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