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Thursday, May 13, 2021, 01:12
CJ's bold move on judiciary reform deserves support
By Tony Kwok
Thursday, May 13, 2021, 01:12 By Tony Kwok

Chief Justice Andrew Cheung Kui-nung should be commended for his swift action on his review of the current mechanism on complaints against judges, having spoken on the issue early this year at the opening ceremony of the Legal Year. In a paper submitted to the Legislative Council last week, it promises sweeping improvements with regard to accountability and transparency in the handling of such complaints. It consists of a two-tier mechanism and will come into effect in the third quarter of this year.

The first tier involves a panel of judges tasked with investigating the complaints where the cases are “particularly serious, complex or a source of public concern”. The investigation panel, comprising at least two judges at the High Court level, would be responsible for making recommendations for resolving complaints, with the help of the leaders of the relevant courts.

The panel would then submit its investigation reports and recommendations to the mechanism’s second tier — a committee made up of both judges and members of the public with “profound expertise and experience in professional, community or public services”. The committee would in turn advise the chief justice on how to handle the complaint. The chief justice would also chair the committee.

The duties of the committee would also include identifying problems in court practices and procedures that had resulted in complaints in the first place, and to make recommendations on improvements to the complaint handling mechanism.

After considering the advice of the advisory committee, the chief justice will make a final decision on each complaint. “Having regard to the seriousness, complexity, degree of public attention and other relevant considerations, the investigation outcome together with the underlying reasons will be posted on the Judiciary website for public scrutiny,” the paper said.

My first thought was wondering whether the chief justice has taken reference from one of his High Court judges (Justice Anderson Chow Ka-ming) who had ruled in a judicial review case in favor of the Hong Kong Journalists Association with his verdict that the riot police officers’ failure to display their identification numbers during the 2019 riots was in breach of the Bill of Rights Ordinance. Separately, the judge had also ruled, as obiter dictum, that the existing complaints mechanism involving the complaints against the police officers, with oversight by the Independent Police Complaints Council, is inadequate, arguing that the former operated under the force itself, while the latter lacked the necessary investigative powers, thereby contrary to the Bill of Rights. By Justice Chow’s standard, the judiciary’s new complaint system cannot possibly pass his test!

The chief justice’s proposal is certainly a step in the right direction and a vast improvement on the current system in enhancing the public accountability of the judiciary. Hopefully, this will help the judiciary recover some of its former respect and credibility

On the other hand, Justice Chow’s judgment, in my view, errs in principle as pointed out in my article “Justice Chow’s judgment triggers stronger demand for Judiciary’s reform” (China Daily Hong Kong Edition, Nov 26, 2020). Hence the standard he set can be ignored.

Nevertheless, the chief justice’s proposal is certainly a step in the right direction and a vast improvement on the current system in enhancing the public accountability of the judiciary. Hopefully, this will help the judiciary recover some of its former respect and credibility. However, it can be fine-tuned by taking reference from the best practices of the police and Independent Commission Against Corruption complaint systems. 

Firstly, the chairman of the committee should be a lay member instead of the chief justice. To have the chief justice chairing the committee, with both judges and civilians as members, would give the perception that the civilians were there merely as window dressing. To have a layman heading the committee would immediately impart it with the air of greater independence, and this is a well-established practice of both the IPCC and the ICAC’s Independent Complaint Committee. The committee should also publish an annual report of its work and host a news conference to answer questions from the media. This would enhance public accountability and transparency of the new judiciary complaint system. But the chief justice will of course retain the final say on the outcome of the complaint and its follow-up disciplinary action, if any, to preserve the independence of the judiciary.

Secondly, it seems that the threshold for triggering the complaints investigation system is rather high. The complaint has to be “particularly serious, complex or a source of public concern”. Last year, the judiciary received a total of 5,559 complaints. It is highly unlikely that all complaints warrant a full investigation. But to ensure that the meritorious ones would not be rejected inadvertently, the committee should have the right to double-check all complaints, including those that the judiciary has decided not to investigate. This, too, is the standard practice of the ICAC Operations Review Committee. Legislation should be in place to make it a criminal offense to make a false complaint against judicial officers, to protect them against frivolous and malicious complaints.

However, this is only the first step of the judiciary reform, albeit the most important one. To further signify the judiciary’s public accountability, the chairman of the Judicial Officers Recommendation Commission should also be a layman. This commission has the important function of nominating and promoting magistrates and judges for the formal approval of the chief executive. It is currently chaired by the chief justice, with members including two judges, the secretary for justice, one barrister, one solicitor and three eminent citizens. In line with the principle of public accountability, the chairmanship should be taken up by a lay member as is the practice of the United Kingdom’s Judicial Appointment Commission. At present the JORC seems to be operating in a black box. At the very least, the JORC should publish an annual report for public scrutiny.

It is gratifying to note that under the new chief justice, most of the verdicts and sentences imposed on social unrest cases are much less controversial and seem sensible. Those clearly biased decisions in favor of the protesters, which prompted the proposal for a sentencing council, are no longer an issue, thereby diminishing the urgency for the setting up of a sentencing council.

The chief justice should also conduct a review on the dress code in court. The sooner the anachronistic wigs worn by judges and barristers in court are consigned to history, the better. Not only have they become an unnecessary reminder of Hong Kong’s colonial past, it also clashes with the fact that Hong Kong was returned to Chinese sovereignty more than 23 years ago. Such inappropriate symbolism is actually viewed with deep contempt by the 1.4 billion Chinese on the mainland!

Furthermore, the chief justice should consider a most constructive suggestion by his eminent peer, Henry Litton, a retired judge of the Court of Final Appeal, which called for the introduction of guidelines to halt the abuse of the judicial review system. 

Judiciary reform is always a slow and plodding process as there will inevitably be a conservative sector who will resist change, both internally and externally, in particular the Hong Kong Bar Association. The former chief justice must have had this at the back of his mind when he turned a deaf ear to all calls for such reform during his term. The current chief justice should be congratulated for taking this first bold step shortly after assuming office. He deserves the full support of not just the legal sector but the community at large to fulfill “his vow to lead a judiciary that moves with the times”!

The author is an adjunct professor of HKU Space, a council member of the Chinese Association of Hong Kong and Macao Studies, and the former deputy commissioner and head of operations of ICAC.

The views do not necessarily reflect those of China Daily. 

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