In Hong Kong we like to say the rule of law is a core value. This is true in so far as values go, but values do not staff courtrooms. Judges do. It is a hard-edged system: decide on the law and the facts alone, disregard the pressures wherever they come from and know that neither politics nor private interests will punish you for doing your job.
That point is made amply clear in the Basic Law. Article 85 guarantees independent adjudication and judicial immunity. Article 88 puts appointments in the hands of an independent Judicial Officers Recommendation Commission — judges, lawyers and lay members recommending, with the chief executive appointing on that recommendation. Article 89 makes the bar for removal of judges deliberately high. Add the quiet conventions of mutual restraint — no politicizing of judgments from the other branches of the Hong Kong Special Administrative Region government; no political commentary from the bench — and you have a system designed for fearless decision-making. Accountability sits inside the system — outside interference is precisely what the constitutional architecture is built to keep out, and rightly so.
When vacancies bite (and they have done so for a long time) and waiting times stretch, the wrong instinct is to redesign the machine. Hong Kong already has a rigorous route to the bench. What it does not automatically have is a queue of top practitioners willing to join it.
There are always those whose life’s dream is to dispense justice and make their mark on the law, regardless of the personal costs to them. They should be applauded — and indeed those who are on the bench today have all made significant personal sacrifices. Yet a robust system is one which does not require the highly qualified to think twice before joining the bench.
It must be said that judicial remuneration looks comfortable from the public sector’s perspective. On a relative scale, judges are treated well. Set against the private market for high-flying lawyers whom our community, including the business community, wants to see fill the ranks, the picture looks drastically different. Heavier responsibility, tighter personal constraints, and limits on practice after leaving office all make a significant pay cut, on top of the demands of the job itself, challenging for many to stomach.
I recently read a most illuminating book by K Shanmugam, a former high-flying senior counsel who joined Singapore’s Cabinet in 2008 and served as minister for Law. In Policy, Fairness and Compassion, he addresses this very question of public sector pay. He recounts speaking in the Parliament of Singapore in 2007, when he described the world from which public institutions try to hire: “Take a bright young man in his 30s. Assume that he is among the brightest in his generation. Today, he has an array of career choices. He can join any multinational corporation or financial institution, or he can stay in a profession. If he remains in the private sector, he will have his privacy, he can travel the world, live where he likes, have a second or third home, and choose to live the life he wants. In his early 40s, he could be earning S$2 million ($1.57 million) and more; and by the time he is in his late 40s, a real high-flyer could be taking home S$5 million or more. If the median for top lawyers and accountants is S$4.2 million and S$3.7 million respectively, members can guess what those above the median will be making.” And those, by the way, are 2005 figures — inflation from then till now would be over 50 percent. As Shanmugam concluded, money should not lure people in — what we want is pay at a level where it is a neutral factor — it should neither be an attraction nor a disincentive. Ability, character and commitment should decide. Hong Kong’s standing as a thriving financial and dispute resolution center means that successful lawyers in Hong Kong do very well. This is reflected in profits per equity partner in top international law firms, which reveal annual average remuneration exceeding HK$20 million ($2.55 million), and even HK$30 million in a year based on their global average.
Of course, Hong Kong is not Singapore, and judges are not ministers. But the market for top legal talent is the same kind of market. If the ablest lawyers conclude that joining the bench means earning a fraction of what they can command in practice — while living under stricter rules — some will simply stay put. New training ladders will not change that calculation. They may even be distracted from it. The proven common-law model asks experienced practitioners to join the bench as the capstone of a career.
As Shanmugam also warned, citing the United States federal courts, this is what happens when the pay gap is too big: The pool narrows, and the bench risks becoming either “a hobby for the independently wealthy or a step up for those who were never at the top of private practice”. This is not what we want to see in Hong Kong one day.
None of this requires abandoning the Basic Law’s architecture, or inventing substitutes for it. Keep the independent appointments. Keep the security of tenure. Keep accountability inside the Judiciary. Keep explaining the system to the public. But treat remuneration, support and conditions as real levers — because they are. Improving them may never be popular, as the recent adjustment to ministers’ remuneration in Singapore shows. Yet Hong Kong’s courts will remain trusted by all, including the international business community, as long as they continue to draw from among the best lawyers. That will not be secured by hopeful talk of sacrifice, or by clever new pathways around the existing system. Singapore’s realistic approach has much to commend it.
The author is the chairman of the Hong Kong Bar Association.
The views do not necessarily reflect those of China Daily.
