Judicial Independence

An independent judiciary is an essential cornerstone to the rule of law.

Judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens. It is thus vital that a judge is able to decide cases independently solely on the evidence presented in court by the parties and in accordance with the law, free from any external pressures. Only in this way can the parties to a trial as well as the wider public be confident that any dispute that has to be adjudicated before a court will be decided fairly and every one treated equally before the law and in accordance with the law, whatever the nature of the controversy and whoever the parties may be.

It is regrettable to see how attempts have been increasingly made to interfere with the administration of fair and impartial justice. In the last few years, abusive graffiti, doxxing and even death threats against judges to insult and intimidate them for having decided politically controversial cases in a particular way, or to pressure and influence how they adjudicate in future cases, were reported one after another.

As a result, public perception of our judicial independence may have been weakened.

In fact, the analysis and reasoning on which a court makes a decision are set out in detail in a judgment. In Hong Kong, most of the judgments (above Magistrate Courts level) are publicly available. Open justice is an important feature of our legal system. The proper way to challenge a court’s decision is by way of an appeal or review. If a party has issue with the impartiality of the judge presiding over a case, an application for recusal can be made. Complaints can also be made to the Judiciary under an established complaints mechanism which is being refined.

Repetitions may sway a person’s ability to assess plausibility and create an illusion of truth. Faced with the recent explosion of repetitive materials from media purporting to offer comments about the status of judicial independence in Hong Kong, the best way is to go back to the basics to examine the relevant facts and the law, and read the relevant reasoned judgments to arrive at your own informed conclusion.

In Hong Kong, judicial independence is constitutionally entrenched in our Basic Law. For instance, Art. 2 guarantees Hong Kong’s right to enjoy independent judicial power, including that of final adjudication in accordance with the provisions of the Basic Law; Art. 19 provides that Hong Kong shall be vested with independent judicial power and Art.85 provides that the courts shall exercise judicial power independently, free from any interference.

Further, Art. 88 provides for the appointment of judges by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission, which is an independent statutory body comprising local judges and persons from the legal profession and other sectors. The selection of Hong Kong judicial officers is very stringent, ensuring that only those with the required ethical standards of integrity, independence, professionalism and substantial legal experience are considered and appointed to judicial office. Art. 92 provides that judges shall be chosen on the basis of their judicial and professional qualifications.

The constitutional role of our judges and judicial officers is to apply only the law. Art.84 of the Basic Law states that judges and judicial officers shall adjudicate cases in accordance with the law. The Judicial Oath taken by all judges and judicial officers requires adherence to the law and the safeguarding of the law without fear or favour.

Further, Art. 82 of the Basic Law provides that the Court of Final Appeal may “as required invite judges from other common law jurisdictions to sit” on the Court of Final Appeal. All decisions are thus ultimately subject to adjudication by a final appellate court comprising judges of the highest calibre both locally and internationally.

This unique system of open justice with highly esteemed foreign judges serving on the final appellate court has significantly contributed to the high public confidence in the Hong Kong Judiciary. Notwithstanding recent political attempts to erode the established international support of the Hong Kong Judiciary, during the course of this year, five non-permanent judges from common law jurisdictions, including the former Chief Justices of Australia and Canada respectively and two former Presidents of the UK Supreme Court, have extended their term of office for another three years. These eminent judges will not compromise their reputation to be a part of the judicial system in Hong Kong should it not be up to the high standard that they command. Their actions speak lounder than words.

As the voice of the solicitors’ profession, the Law Society will continue to defend our Judiciary which we have full confidence in and respect for its professionalism and integrity.

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