Legal time stands still
THE prospective retirement of nine out of 10 Appeal Court judges by 1997, and 15 out of 23 High Court judges within the decade, would not surprise an actuary. Senior judges tend to be men with many years of legal practice under their belt, and few aremuch under 45 when they join the High Court. However, the Government lacks a convincing explanation of how it intends to deal an exodus on this scale.
For some years now, it has been obvious that local barristers are reluctant to join the judiciary. The Government would either need to continue recruiting expensively from abroad, or find some way of persuading more Hongkong talent to join the bench. Extending the retirement age for judges to 65 is an interim solution that could be considered. However, the measure would do little to further the localisation which is the key to a long-term solution. Although there is no theoretical restriction on the number of judges that can be brought to Hongkong from other Common Law jurisdictions, in practice it is likely to become more and more unfashionable - and politically difficult - as the process of decolonisation accelerates.
There are no easy answers to the localisation problem at this late stage in the transition period. In theory, the judiciary is independent and uninfluenced by Government or politicians. However, eligible barristers are likely to wait for a few years to see the way the new Special Administrative Region government works in practice before committing themselves to judicial positions, especially if there is the prospect of Hongkong's laws being dictated by the National People's Congress in Beijing after 1997.
In the interim, however, there is much that could be done to ensure that the need for additional judges is kept to a minimum. Legislators last week called for reforms to the administration of the judiciary to ensure greater efficiency and a reduction in the long waiting times before cases are heard. Even a small increase in productivity could reduce the demand for more judges.
The Government should respond urgently to legal constituency legislator Mr Simon Ip Sik-on's call for the appointment of a senior administrator with proven experience and management skills. There is a need for root-and-branch reform to the management of the judiciary, a reduction in red tape and bureaucracy, and the introduction of new equipment and technology.
Mr Ip's suggestion is hardly revolutionary. As early as 1986, a consultant brought in from the Lord Chancellor's Department in Britain to examine the workings of the judiciary recommended the appointment of such an administrator. In a report to the then Chief Justice Sir Denys Roberts, the consultant, Mr Peter Robinson, also recommended that judges aim for a standard five hours a day in court or in chambers. Among other things, he called for the introduction of speedier court reporting methods - either more use of stenographers, or sound recording equipment.
Earlier this year, a study by a City Polytechnic lawyer, Mr James Allan, revealed that High Court judges were sitting only 61/2 minutes a day longer than in Mr Robinson's time, and managing to work only 3.27 hours a day. That is not a criticism of lazy judges, although anyone familiar with the judiciary in Hongkong will know that there are a few who pace themselves too much to their own advantage. The fault lies with a bureaucratic system that works against efficiency.
In an article in this newspaper earlier this year, Mr Allan suggested that the manner in which cases were scheduled be restructured, and that judges take stronger charge of the courtroom and grant fewer adjournments to barristers.
Mr Justice Godfrey last month also took the revolutionary and long overdue step of refusing to take his own longhand notes in court because there was no stenographer to record oral evidence shorthand. It is a disgrace that in the last decade of the 20th century Hongkong courts still function by methods that belong to the quill pen era. It is to be hoped that his stand brings some rapid improvement in the quality of service available to judges.
That Mr Robinson's recommendations have not been implemented, and our courts remain inefficient and poorly administered, is the fault of the Government, for failing to act on his report; of the Legislative Council, for failing to put pressure on the Government to do so; and of successive Chief Justices, for failing to introduce better in-house management expertise.