By W.B. Yeung.
On 16 September 2015, Chief Justice Geoffrey Ma Tao-li made a surprising but welcome contribution to the debate over the Chief Executive’s constitutional role and the (risible) suggestion that the Chief Executive has “transcendent” status.
Chief Justice Ma’s words were a breath of fresh air piercing through the stifling political regurgitations. In his accented Cantonese, stripped of any linguistic complexity and absent any rhetorical cadences, pushed out syllable by syllable, Ma’s riposte was perfect: “Ev-ery-one-is-eq-ual”. It was as simple as that.
By coincidence (or perhaps not), just a day earlier, the Lord Chief Justice of England, Lord Thomas, gave a speech calling on judges to engage in greater dialogue with the public and the other branches of government:
“So, what conclusions can be drawn?
i. Judicial independence must not mean judicial isolation;
ii. The judiciary must explain the centrality of justice and why it matters. That task cannot be left to others. Transparency and openness are crucial to instilling public confidence in the justice system. In so doing, the emphasis has to be on demonstrating the real-life impact, rather than relying on high-level constitutional principles;
iii. The judiciary needs to engage with the other two branches of state within the confines of the constitution, and this strengthens, rather than undermines, judicial independence as it increases shared understanding and shared respect;
iv. Engagement with the public and the other branches of the state is particularly important when it comes to protecting judicial independence and the proper funding of justice;
v. The judiciary must be reflective of the society it serves and actively take steps to ensure that the processes of the courts take proper account of our diverse societies.”
Lord Thomas came to those conclusions after analysing the effect of the constitutional reforms of 2005. Before the reforms, the Lord Chancellor was both the head of the judiciary and a senior member of the Government’s Cabinet. The Constitutional Reform Act of 2005 formally severed those links with the aim of increasing judicial independence.
However, this enhanced formal independence was not without its own problems – one of which was the danger of “judicial isolation”. With the abolition of the Lord Chancellor’s judicial role, the judiciary effectively lost its mouthpiece and link to the general public. The remedy, according to Lord Thomas, is that judges themselves must take on a more active public profile in debates over the rule of law and the administration of justice.
Structurally, the Hong Kong judiciary faces the same issues. Judicial independence is entrenched in the Basic Law and is a core value – but there is also a potential for judicial isolation. This isolation manifests itself not only in how the public perceives the judiciary, but in how judges express their views on key issues such as access to justice, legal aid, and improvements to the judicial infrastructure.
For example, without judges being accustomed to making known their views, it may be difficult for the public to understand the logistical needs of the judiciary (e.g. whether judges have sufficient research, operational, and technical support; whether there exist any difficulties in recruitment; whether a higher budget is needed; and so on). And if there is a need to voice out concerns on these issues, whose voice will it be, and what will it sound like?
However, the immediate and wholesale adoption of Lord Thomas’ recommendations is not necessarily the answer for Hong Kong. The public is not yet accustomed to such direct judicial interaction. Further, the media in Hong Kong are plagued by personality-based reporting rather than issue-based analysis. Indeed, Chief Justice Ma’s comments were immediately followed by “profile” stories speculating on whether he should now be considered a liberal or a conservative judge.
Judges may be even more reluctant to voice their opinions in light of a recent case, concerning human trafficking, where the Department of Justice asked the judge to remove himself from the case on the ground that, before becoming a judge, he had spoken out against human trafficking.
Former Chief Justice Andrew Li Kwok-nang has recently stepped forward on several occasions to contribute his “voice” in various matters. As a former Chief Justice who took early retirement, he is experienced enough to be attuned to the issues facing judges, while being sufficiently youthful to still take an active role in articulating the judiciary’s concerns to society. As the first Chief Justice of the Hong Kong Special Administrative Region, he would also be acutely aware of the constraints in which the Chief Justice may find himself.
As a man who retains a great sense of duty to the city’s development, his increased public profile in recent days was undoubtedly a result of much deliberation as to the needs of the public. In short, he is someone who can simultaneously reflect the views and needs of judges while deflecting any unwarranted insinuations against them.
However, Andrew Li’s role can only be an interim measure. He has no official title and is therefore likely to be ignored by those who disagree with his views. Ultimately, Hong Kong should strive to foster an environment in which judges can legitimately voice their views and concerns in the relevant areas – without those views being held against them and without speculation over ulterior motives.
The development of such an environment, with the purpose of preventing judicial isolation, will require significant effort from a large section of society including the executive, the media, the legal profession, the Legislative Council (particularly its Panel on Administration of Justice and Legal Services), and judges themselves.
Everyone is equal before the law. But some of us bear a greater responsibility than others for cultivating a healthy judicial ecosystem.
W.B. Yeung practices law, while constantly fearing the second coming.