Law without politics

PUBLISHED : Wednesday, 12 February, 1997, 12:00am
UPDATED : Wednesday, 12 February, 1997, 12:00am

Of all the issues surrounding the handover, few are more crucial than the independence of the judiciary. It is the keystone of the common law, which underpins so many aspects of life and commerce here. The less disruption of the judiciary and its independence, the greater the chances of stability, a smooth transition and continued international confidence in the territory as a place in which to do business.

That said, the change of sovereignty coincides with a time at which the judiciary is facing far-reaching changes. The immediate task is to replace 15 judges who will retire or leave before July. Under the present system, judges are selected by a Judicial Service Commission which serves a two-year term; but now the incumbents will only serve until July.

The future Chief Executive will appoint his own team for the commission. The Basic Law stipulates that the appointment of judges for the Court of Final Appeal and the Chief Justice must be endorsed by the Legislative Council. This raises the danger of politics entering the appointment process. It is quite possible to imagine nominated judges being questioned about their views on the Bill of Rights, or even the legitimacy of the legislature, itself.

If the independence of the judiciary is compromised, the common law system will face serious damage. That, indeed, could stir greater disquiet than the plan to water down the Bill of Rights.

The inviolability of the common law has already been made into a matter of controversy by the agreement over the Court of Final Appeal. To do anything which put it into even potential jeopardy would be a very serious matter for one of the cornerstones of the system under which the territory has flourished. In these times when everything is coming under the microscope, Hong Kong needs to have the fullest assurance that the rule of law is being maintained by a free and unfettered judiciary. The future Chief Executive has talked of his desire for a less politicised society; he should make sure that the reverse does not happen in the law.