As the Hong Kong chief executive said on May 26 in her opening speech at the Vision 2030 for Rule of Law International Symposium, the rule of law is a core value and the cornerstone of Hong Kong’s success.
Contrary to Western media’s smearing of our rule of law, objective evaluations by respected international organizations paint a very different picture. According to the Rule of Law Index 2021 by the World Justice Project, Hong Kong has maintained its fifth overall ranking in the East Asia and Pacific Region and was rated 19th globally. According to the World Bank, Hong Kong’s percentile rank in respect of the rule of law was only 69.85 in 1996; upon China’s resumption of the exercise of sovereignty over Hong Kong in 1997, Hong Kong’s score was upgraded to 82.5 in 1998 and, since 2003, has remained consistently above 90, clearly underscoring the special administrative region’s significant advancement in the rule of law since its establishment in 1997. By and large, these results reflect the importance that Hong Kong attaches to upholding the rule of law.
The strength of Hong Kong’s rule of law system is based fundamentally on its independent and effective Judiciary. The appointment of the chief justice (CJ) of the Court of Final Appeal, Mr Andrew Cheung Kui-nung, in 2021 is indicative of our leadership’s ability and flexibility to enable our Judiciary to meet the changing political challenges.
Our Judiciary was bogged down in the early days after the reunification by its insistence in adhering strictly to the long-established modus operandi under colonial rule and refusal to initiate any adjustments to meet the changing circumstances of our society; in particular, in meeting the public expectations for greater transparency and accountability of the courts. The judges continue to wear the antiquated wigs and costumes of the British colonial era, reflecting no less its irrelevance to a fast-changing world, meanwhile alienating the local populace and being at odds with the local Chinese culture, which has a strong sense of justice and fair play.
The courts’ increasing irrelevance and alienation came to a head during the 2019 protests, when many politically biased magistrates dished out preposterously lenient sentences to convicted rioters, or acquitted them of serious charges under the vague pretext of giving them the benefit of the doubt in evaluating police evidence. At other times, some of these magistrates, clearly harboring a political agenda of their own, handed out disproportionate noncustodial sentences for serious riot offenses, including those involving inflicting grievous bodily harm on police officers or innocent citizens. Public complaints were literally swept under a thick judicial rug with no transparency and accountability whatsoever.
It was therefore most encouraging to note that one of the first major changes the new CJ introduced was the revamping of the public complaint system. In the past, any public complaint against magistrates would be investigated by their respective chief magistrate, and his or her findings were then submitted to the CJ for final adjudication. This gave rise to understandable suspicions of bias, favoritism and self-protection, with the direct supervisor investigating his or her own subordinate. Under the new system, the complaint will be investigated by a panel of High Court judges. The findings will then be presented before the newly introduced Advisory Committee on Complaints Against Judicial Conduct, which includes lay members, and finally forwarded to the CJ for final determination. The findings will then be published on the Judiciary’s website to enhance transparency.
The improved procedure can be demonstrated by the recent release of the complaint against Magistrate Stanley Ho Chun-yiu over his remarks during the trial of a rioter that “the only person who might be injured was the defendant when being subdued”. After a thorough investigation by a panel of judges comprising Court of Appeal Judge Thomas Au Hing-cheung, and Court of First Instance judges Andrew Chan Hing-wai and Wilson Chan Ka-shun, the panel came to the view that “at the hearing, the Magistrate had not expressed any view on the acts upon which the defendant’s conviction was based which was inappropriate or indicates a political inclination”. The panel found the allegation unsubstantiated.
The panel’s findings were then presented before the Advisory Committee, which agreed with the conclusion of the panel. But the Advisory Committee emphasized that “the public has a high expectation for a judicial officer to maintain impartiality and it is therefore important for a judicial officer to be careful to avoid giving rise to any misunderstanding or perception of partiality through his words or behavior in court.”
The CJ also commented in his final deliberation that the magistrate has room for improvement in handling the case in court. “Arising from this complaint, the Magistrate will be reminded to be more careful in court to avoid making any remarks that are unnecessary or irrelevant to the issues before the court, particularly those which might give rise to any unnecessary perception of partiality in his judicial work.”
Clearly the whole complaint procedure is now a lot more fair, independent and with greater transparency, and the findings will serve as excellent guides to all judicial officers. The public should be satisfied.
The second major improvement was the introduction of a revised code of conduct for the judicial officers, which is an update to the 2004 edition. The revised code emphasized that judicial officers should administer justice without fear or favor, bias or prejudice, and should observe the highest standard of judicial conduct. The revised code takes into consideration the advancement of information technology and governs the conduct of judicial officers in the use of social media, strengthening the guidelines on recusal and apparent bias and principles on handling cases involving public controversies. It may be that if this code had been introduced earlier, there would not have been so much controversy in the way some magistrates handled the riot-related cases.
The third major reform was the staff appraisal system of judicial officers, which will be introduced in the latter part of this year. An annual review board will be set up to allow heads of the courts and judges from the high court to discuss and evaluate work performances of judicial officers of all ranks. The review will be done in a comprehensive, objective, systematic and integrated manner that will also evaluate the needs for staff training and development. In the past, the impression is that judicial officers suffered little consequences, as they were not subject to accountability, even if they made serious mistakes in their courts and there was no staff appraisal system to avoid prejudicing the judges’ independence. This reformed appraisal system demonstrates that the Judiciary has finally come to terms with modern management concepts to enhance the accountability of judges.
We can now have full confidence in the current CJ’s ability to put his house in order and lead the Hong Kong Judiciary from strength to strength. However, we should be aware of the external threat.
Under the Western conspiracy to damage Hong Kong’s rule-of-law reputation, one major target is our international panel of judges. The dirty trick is to pressure members of this panel to resign and then tell the world that this signifies the failure of the Hong Kong Judiciary. They did succeed in manipulating the British government into forcing the resignation of two top British judges from the panel this year and cited the resignations as being tied to concerns over the National Security Law for Hong Kong and its implications on political freedom! But what they have done instead is show that the British government had abused its position to destroy the independence of judges. The plot from No 10 Downing Street failed because all other members of the international panel, including six British judges, refused to stand down, and in a joint statement, supported the “continued participation” of overseas judges in the interest of Hong Kong residents and vowed to continue to support the Hong Kong Judiciary.
But the nefarious Western conspirators will not stop. Only recently there was a group of lawyers from the UK, Canada and Australia, headed by a former UK attorney general, who issued an open warning to the remaining British, Australian and Canadian judges operating in Hong Kong that “they are working in an environment where judicial independence has been wholly undermined and the Chinese Communist Party can dictate the outcome of cases”, and that they should not be “used by the territory’s government as a vote of confidence”. It’s extraordinary for any judicial figures to openly air their professional differences in this way. This is a blatant attempt to pervert the independence of judges and the Judiciary, the very principle the Western democracies claimed to hold dear!
Given this background, it is quite conceivable that they would politicize the inevitable resignations of members on account of age or health considerations from the international panel of judges. And we have to be on guard for such an eventuality and handle it with finesse.
In my view, one simple way to avoid this dilemma is to abolish the panel. When it comes to a need to appoint a foreign judge to our Court of Final Appeal, the Judiciary can simply handpick the appropriate foreign judge based on the expertise required of the case and approach the individual with an offer. Alternatively, the panel can be changed to a reserve pool into which all qualified people, e.g., all retired judges of supreme courts in all common law jurisdictions, can put their names without having to go through the appointment process, and the Hong Kong Judiciary can just pick one when needed. This is similar to the recruitment of international consultants in organizations such as the World Bank and United Nations.
As the legal sector legislator Ambrose Lam San-keung said, “It is time for the Hong Kong judicial community to be its own master.”
The author is an adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies. He was previously the deputy commissioner of the Independent Commission Against Corruption and currently is an international anti-corruption consultant.
The views do not necessarily reflect those of China Daily.