Margaret Ng's speech on Senior Judicial Appointment delivered on 8 June 2011
The rule of law is the bedrock of Hong Kong’s stability. An independent Judiciary is essential to the rule of law.
In his last address at the Opening of the Legal Year, Hong Kong’s former Chief Justice, Andrew Li took this as his theme. He said:
“The independent Judiciary has a vital constitutional role to ensure that the acts of the Executive and the Legislature comply fully with the Basic Law and the law, and that our fundamental rights and freedoms, which are at the heart of Hong Kong’s system, are fully safeguarded.”
Our courts, at every level, have in years past heard and decided cases which attracted public interest and political controversy, and had, in the course of doing so, given many judgments of great constitutional significance.
In 1999, the Ng Ka Ling case, the Court of Final Appeal decided on the right of abode of mainland-born children of Hong Kong parents. More recently, the Court decided on the legality of a Select Committee of this House in summoning witnesses before it. In the Congo case on which Judgment is still awaited, the Court is being asked to decide whether absolute or restrictive immunity is the applicable law in the HKSAR. Judgment has just been handed down by a majority of 3 to 2, the Court decided to refer a question on Article 19 to the NPC for Interpretation and I’m sure is being closely studied. Even at the Magistrates’ courts, on occasion, the verdicts and sentences had aroused community-wide debate and discussion. Justice under the law, including the Basic Law, is being tested in our courts every day.
The role our judges perform daily through hearing and adjudicated cases by applying the law is of fundamental importance. Our system of justice places a heavy responsibility on our judges. Their judgments decide the liberty and property and affect the interests of the persons before them. In the highest courts, they decide questions of legal principle which have far-reaching effect beyond the parties immediately involved, and often set the direction for the future development of the law.
Because the courts have control over their processes, because they give or withhold leave, award, measure or deny costs, judges also regulate the access to justice. The wrongful denial of access can be the greatest injustice of all.
Thus, the selection and appointment of judges to whom these great powers and functions are entrusted are matters of the highest importance. In the words of a very distinguished judge, and I quote:
“The selection and appointment of … judges unable to, or incapable of, properly applying law to true fact, without … ‘fear or favour, affection or ill will’ would soon undermine the efficacy of any justice system. It would undermine public trust in it, and would ultimately call into question a country’s commitment to the rule of law. A quiescent and timorous judiciary, unable or unwilling to act impartially or independently of the parties before it would lose public confidence. Its decisions would soon lose respect and with that would go respect for law and the rule of law. At its worst, decisions reached under the improper influence of parties, such as the Executive, could provide a false patina of legitimacy to tyranny.”
This passage is taken from a paper on “Selecting Judges: Merit, Moral Courage, Judgment and Diversity”” by one of the candidates recommended for appointment as our NPJ, Lord Clarke published in 2009, when he was the Master of the Rolls.
How then should judges be selected, and who is the right person to be appointed to a judicial office?
Lord Clarke pointed out, both merits and good character are essential. Merits include legal knowledge and experience, intellectual and analytical ability, and sound judgment. But foremost in “good character” is moral courage, and I believe that this is of great relevance to the situation in Hong Kong. In the words of another Chief Justice :
“Judges must also have moral courage …to make decisions that will be unpopular whether with politicians or the media, or indeed the public, and perhaps most important of all, to defend the right to equality and fair treatment before the law of those who are unpopular at any given time …”
However, it is equally important to beware, as Lord Clarke pointed out that:
“There is a risk …that this criterion could be expanded beyond this in impermissible ways. Good character might, for instance, be used to refer to political or social beliefs or practices which the recommending or appointing body did not agree with. It might be used, for instance, impermissibly to refuse appointment to an individual on the grounds that their political beliefs were inconsistent with or opposed to those of the executive or legislature. ”
In the HKSAR, to do so would be contrary to Article 92 of the Basic Law.
The selection process in Hong Kong is laid down by the Basic Law. Article 88 provides for the establishment of the Judicial Officers Recommendation Commission (“JORC”). Articles 90 and 73(9) provide for the recommendations of senior appointments to be endorsed by this Council. In our own endorsement exercises, issues which have come under discussion include whether the composition of JORC is sufficiently independent; whether the selection process by JORC can be made more open and accountable without affecting its independence; and whether some kind of “confirmation hearing” as is practised in the USA may be adopted without the selection/endorsement process being politicized.
Mr. President, in the United Kingdom, the Judicial Appointments Commission was established by the 2005 Constitutional Reform Act to make the process of selection and judicial appointment more open and accountable. Neither the HK community nor the UK would countenance a US-type confirmation hearing. But, as the UK has learned from our system, we can also learn from theirs, in terms of provisions for accountability and openness of the selection process under the law, for instance regarding the constitution of the Commission which does the selection.
The individuals sitting in JORC ought properly to be independent of the executive or legislature. In the UK, the Judicial Appointments Commissioners are appointed through open competition according to the principles applicable to public appointments. In carry out their role, they exercise their powers independently of Government and of the legal profession. The ex officio presence of the SJ and the 3 public figures directly appointed by the CE makes the executive hand too heavy in our present system. Further reform on the constitution and operation of JORC need to be explored and considered.
Mr. President, having made such elaborate arrangements to ensure the selection and appointment of the right persons to uphold the rule of law by an independent Judiciary, it should be obvious that the executive should implicitly respect the judgment of the court, no matter how inconvenient the practical consequence may be, and not set a bad example by undermining the judicial process by casting disparagement on the bench or the bar with inappropriate comments outside court. Not infrequently, a barrister or solicitor who has been defending a case before a court may leave the court in bitter disappointment of the outcome or even the court’s reasoning. But undermining the authority of the process is not a price we should pay to assuage our wounded pride.
Last but not least, I would like to take this opportunity to stress the high expectation of the community and their own calling that judges must be fearless and detached from all personal considerations in applying the law, even if it is at the expense of political pressure on the courts.
In 1999, as a result of the decision on Ng Ka Ling upholding the rights of the mainland-born children of Hong Kong parents under Article 24 of the Basic Law, the CFA came under fierce attack. Personal abuse were heaped especially on the then Chief Justice by members in this very Chamber and by imagined loyalists of the State outside it. On 26 June 1999 the NPCSC issued an Interpretation effectively overruling the court’s decision. In solemn black and complete silence the legal profession marched to show their support for the court. Eleven years and many courageous judgments later, when the same Chief Justice gave his farewell address, he was given prolonged applause and a spontaneous standing ovation by the audience which included the profession, judges and lawyers from other jurisdictions and representatives of the community. It was a scene that few who was present at it could easily forget.