Published: 00:43, October 5, 2020 | Updated: 15:30, June 5, 2023
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Time for judiciary to clean up house with an independent review
By Tony Kwok

The Independent Commission Against Corruption has enjoyed a reputation as a peerless anti-graft law enforcement agency almost from the get-go in 1974. Yet after 20 years of continuous successful operation, in 1994, Hong Kong’s then-governor decided to appoint a blue-ribbon Independent Review Committee, chaired by a highly regarded shipping tycoon who was also an executive councilor, Dr Helmut Sohmen, to review the powers of the ICAC and its system of public accountability. The IRC was triggered by public concern over the dismissal of the then-deputy director of operations and, although the dismissal was justified by the subsequent Legislative Council special enquiry, it was decided to take the opportunity to conduct a comprehensive review of the ICAC’s operations.

The IRC concluded its work with 76 recommendations, resulting in a number of improvements. For example, the old Section 30 of the Prevention of Bribery Ordinance prohibited anyone, including the media, from disclosing any ongoing ICAC investigation until the suspect had been charged. This was regarded by the media as a “press gag law”. The IRC proposed relaxing the disclosure law to the time of any arrests being made or premises searched. The commissioner’s power to issue search warrants on any premises was replaced by a court warrant, although the commissioner’s power is retained for use in emergencies. As a result of the review, the ICAC came out stronger and enjoyed even wider public support, and its reputation further enhanced.

Without any hint of reservation or concern about losing its independence, the ICAC’s readiness to subject itself to a rigorous review of its established practices is hardly unusual. This periodical appraisal by an independent third party is actually the norm among nearly all successful enterprises. This is crucial for any leading enterprise because even an efficient organization cannot remain on top without change as its established practice may no longer effectively cope with the changing external environment. Moreover, a successful organization can become complacent and may no longer be functioning at its potential best. But this can be effectively remedied if it’s willing to set aside its pride and allow itself to be put under the prying eyes of independent reviewers. And there’s no reason why even our august judiciary cannot benefit from a similar treatment.

The committee’s terms of reference (similar to those of the Independent Review Committee in the 90s) can include exploring international best practices in other judiciaries to enhance public accountability, transparency and fairness and how the HKSAR judiciary might adopt some of these best practices suitable for our unique situation

Our judiciary has retained all the archaic practices and odd traditions it inherited from the British colonial days, without a thought being given to its relevance in the modern age, or making improvements to better align itself with the changing times in the 23 years after Hong Kong’s return to China. Its judges continue to wear the furry colonial wigs and retain the old colonial judicial system — lock, stock and barrel — even though their British ancestor had already undergone numerous major judicial reviews over the same period. Thus, it defies reason that in spite of the clarion calls from various highly respected individuals and quarters for a review, both the chief justice and the SAR government continue to stonewall such a reasonable suggestion. The public has every right to be concerned in view of all the scandals plaguing the court system — from preposterous verdicts and highly disproportionate sentences to magistrates and judges openly displaying their political affiliations, from the regular abuse of judicial review to the broken legal aid system — not to mention the openly politicized stance of the Bar Association.

The chief justice must be naive to think he can hide all that dirty linen behind his private closet with a lengthy statement which is just an amalgamation of some salient points from earlier speeches and some basic juridical principles. On the public criticism of judges letting off many “blackshirts” on trial, he continued to mislead the public, claiming that such grievances can be addressed through appeal or internal complaint to the judiciary. But he should know very well that once a magistrate has ruled the prosecution witnesses, even the police officers, as “unreliable” and dismissed all their evidence, such finding of facts cannot be appealed. As to the internal complaint, it’s processed entirely in the dark and no detailed findings are ever published on the judiciary’s website. In other words, there’s no transparency or accountability in the handling of complaints against the judiciary. It’s for all intents and purposes a black-box operation!

The statement at least shows that the chief justice is aware of the public concern. But if he really wants to be accountable, he should, like any head of a public body or CEO facing an obvious crisis of confidence, offer to meet with media representatives to address all those simmering issues. The first question that should be put to him must be why he has refused to listen to the advice of his most eminent peer, Henry Litton, the retired judge of the Court of Final Appeal who has publicly called for a major review of the judiciary. Litton is no ordinary voice. He was probably the most senior living barrister in Hong Kong, having been elected chairman of the Bar Association six times, breaking all records. In fact, were it not for his foreign nationality, there’s little doubt he would be most suited for the chief justice post. Yet his concerns over the various inadequacies of the judiciary, forcefully expressed through various public platforms, and his appeal for a major review all appear to have fallen on deaf ears. Can the chief justice tell us why?

The chief executive has been issuing public statements signaling that she is endorsing the judiciary’s recalcitrance. This is understandable as she must avoid saying anything which might damage our international reputation for the rule of law. However, the range of issues now chewing away at the foundations of our judiciary can no longer be ignored because they will not stop without forceful intervention by the administration. She should consider announcing in her forthcoming policy address the appointment of a special committee similar to the IRC in the 90s, to be chaired by a highly respected senior citizen (but not related to the legal profession to avoid any conflict of interest), with members to include a respected retired High Court judge such as Litton, a senior law professor such as Albert Chen Hung-yee, representatives of the Bar Association and the Law Society with, of course, ex-official members of the judiciary.

This committee’s terms of reference can include exploring international best practices in other judiciaries to enhance public accountability, transparency and fairness and how the HKSAR judiciary might adopt some of these best practices suitable for our unique situation. Even the sharpest legal mind would find it difficult to argue against such a reasonable proposition!

The author is an adjunct professor of HKU Space and an international anti-corruption consultant. He is a former deputy commissioner of the ICAC.

The views do not necessarily reflect those of China Daily.