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Tuesday, January 26, 2021, 10:25
Judicial appointment is the first step to judiciary review
By Tony Kwok
Tuesday, January 26, 2021, 10:25 By Tony Kwok

With the recent waves of public demand for judiciary review, it is gratifying to note the encouraging remarks made by the new chief justice, Andrew Cheung Kui-nung, in his maiden public address at the opening ceremony of the Legal Year on Jan 11.

Firstly, he remarked on the importance of the judiciary being staffed by people of high quality, and that judges must be upright with integrity, faithful to their judicial oaths and be a defender of rights. He vowed to lead a judiciary that moves with the times by improving the judicial organ’s efficiency. Most importantly, in response to public demand, he agreed to conduct a comprehensive review of the existing mechanism dealing with complaints against judges to further improve the accountability and transparency of the courts’ operation. He undertook to take into account the public’s views and suggestions in conducting the review. On that, let me offer my humble suggestions.

To ensure the highest professional quality and integrity of judges, an effective appointment system is of paramount importance to maintain a consistent standard of personnel and performance. Based on Articles 88 and 92 of the Hong Kong Basic Law, judges are appointed on the recommendations of the Judicial Officers Recommendation Commission (JORC) and approved by the chief executive. It is stipulated in the JORC Ordinance that all nine JORC members are to be appointed by the CE, consisting of the chief justice as the chairman, secretary for justice, two judges, one barrister (nominated by Hong Kong Bar Association), one solicitor (nominated by the Law Society of Hong Kong) and three eminent persons from other sectors.

However, the public has very little knowledge of JORC, which seems to give the impression of operating in secrecy, and with little regard for transparency and public accountability. The first question that is often asked is whether the JORC should be chaired by the CJ. Among the eight members, four are under his direct influence — i.e., the two judges who are his subordinates and the two legal representatives who may have to appear before him in the court. Hence the CJ can easily influence the decision-making process of JORC. In the United Kingdom, the Judicial Appointment Commission (JAC) established in 2006 consists of 15 members, including seven judicial officers, two legal professionals and six lay members, and the chairman must be a lay member. The same rationale currently applies to the Public Service Commission, which oversees the appointment of senior civil servants, and the chairman is always a lay person outside the civil service. It also applies to the most important watchdog of the Independent Commission Against Corruption — the Operations Review Committee, which oversees the operations of the ICAC, and the chairman also is a lay person, and not the commissioner of the ICAC.

On the membership composition of the JORC, I propose that one of the two judges should be a prominent retired judge, so that he can be free from the influence of CJ, whilst contributing his professional expertise to the working of the judiciary. On the two lawyers to be appointed as members, the CE should not automatically accept the respective nominations of the Bar Association and the Law Society. Under the law, she is obliged to consider the nominations but has no obligation to accept them. This is particularly so with respect to the nominations from the Bar Association in view of its highly politicized anti-China stance. The number of lay members should be increased from three to five, so that the lay members, who are supposed to be citizen representatives, can exercise a real impact on the decision of JORC, and to counter the notorious protectionism of the legal profession.

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To enhance transparency, the JORC should publish an annual report, a common practice among similar commissions in common law jurisdictions. The annual report should outline their selection procedures, assessment criteria and demographic distribution of both successful and unsuccessful applicants during the year. Of course, details of unsuccessful applicants are not disclosed to protect their privacy.

In the UK, the Judicial Appointments and Conduct Ombudsman was set up in 2006 under the Constitutional Reform Act to investigate complaints concerning judicial appointment decisions made by the JAC. Hong Kong can consider following this good practice to enhance the accountability of the JORC.

At present, the recommendations of the JORC are for the approval of the CE, which I suspect is being treated as just a rubber-stamping step in most cases. The procedure can be improved by requiring the JORC to come up with a list of recommended candidates for the CE to choose. In the Philippines, whenever there is a vacancy for a judge, the Judicial Appointment Authority comes up with the names of three candidates for the president to choose one to be presented to the Senate for approval. This ensures that the CE approval is deliberate, and not robotic.

Before the CE gives her approval, the list should be subject to integrity checking by the ICAC, as is normal for all senior appointments, and political vetting by the National Security Department of the Hong Kong Police. Such political vetting is of real necessity now in the current political climate. Only recently there was concern over the appointment of a magistrate who used to be an active member of the Civic Party, which has a history of conspiring with foreign governments to cause harm to China and its Hong Kong SAR. Such political vetting is actually standard practice in most places for important appointments including judges. In the United States, a nominee for federal judge will be interviewed by the Department of Justice and investigated by the Federal Bureau of Investigation as a first step.

As regards the setting up of a mechanism to deal with public complaints against judges, the public has clamored for an independent judicial officers complaint authority similar to the one in the UK. This would take time. In the meantime, we can authorize JORC to take up the role of an independent watchdog. This is feasible because under Section 13 of the JORC Ordinance, the CE in Council may “by regulation provide for the discharge by the Commission of additional functions”. The additional functions can be the setting up of an independent complaint authority as well as the authority for termination of services of judges. Such functions are but part of personnel management and thus within the purview.

Given the political will, the complaint system against judges can actually be vastly improved very quickly. All complaints can first be investigated in house upon the CJ’s instruction as per present practice. This is no different from the police complaints system with the Complaint Against Police Office (CAPO) taking up the initial investigation first. But when the investigation is completed, and instead of the CJ making the final decision, a full report with a conclusion and recommendations should be tabled before the JORC for deliberation and approval, allowing the JORC to act as an independent watchdog.

Recently, certain judges continued to hand down clearly biased decisions in favor of the protesters, and unfortunately, some of their decisions cannot be appealed because they have cleverly exercised their judicial discretion of refusing to believe prosecution witnesses. The JORC can be presented with the whole list of the cases dealt with by the individual judge which can then, taking into account the totality of the decisions made by the judge in question, decide whether the judge has committed prejudice and if so, the JORC can authorize the transfer or even termination of his service. Thus, the JORC itself can plug a loophole in the current judicial appeal system.

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The author is an adjunct professor of HKU Space and a Council member of the Chinese Association of Hong Kong and Macao Studies. He is also the former deputy commissioner of ICAC and currently an international anti-corruption consultant.

The views do not necessarily reflect those of China Daily. 

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