Judicial independence should be safeguarded

PUBLISHED : Monday, 22 September, 2003, 12:00am
UPDATED : Monday, 22 September, 2003, 12:00am

The rule of law is very often cited as one of Hong Kong's major strengths and competitive advantages. Behind this simple phrase lies an entire system that includes statutes, case law, courts, judges and principles that govern the workings of the judiciary. It is important to safeguard the sanctity and independence of the system if the term rule of law is to have any real meaning. A critical condition for ensuring judicial independence is a funding mechanism for the courts that will insulate them from the vagaries of politics. Judges must be able to rule without fear or favour, and that can only be achieved if a system is in place to guarantee that their conditions of service will not be tempered with arbitrarily.

Although the executive and legislative branches of the government in Hong Kong, which between them control the public purse strings, have never acted in any way that could be perceived as penalising our judges, the fact is funding for the judiciary is not entirely separate from that of the rest of the government.

Under rules developed during colonial days, the conditions of service of judicial officers largely follow those of the civil service. That might have been a convenient arrangement in the old days. But it was wrong for that to have been allowed to develop into a principle to be followed uncritically, as shown by the government's plan last year to cut judges' pay in line with reductions for civil servants. It was only after representation by the judiciary that judges were spared the cuts.

But while judges have succeeded in protecting their remuneration, the judiciary as a whole has been told it will be subject to a 10 per cent budget cut like the other government departments.

The chief justice has commented that the cuts may lead to the consolidation of magistrate's courts. The closure of courts could well slow down the judicial process and cuts made on a one-size-fits-all basis run the risk of lowering quality of services in what is generally considered a clean and efficient system.

Certainly, the judiciary's budget should be a matter of public record and open to public scrutiny. But perhaps the time has come to assure the system's independence by allowing its budget to come from funds that are separate from the rest of the civil service. And the difference should be enshrined in law. As we report today, there is growing momentum to consider ways of achieving this.

The report now being prepared for the Legislative Council will compare the Hong Kong judiciary's budget arrangements with those of other common law jurisdictions, including the UK, Canada and the United States. In many of these places, safeguards have long been in place to keep political, budgetary and pay issues from influencing judicial decisions. There are also laws against the reduction of judges' salaries, and in some countries, judges' payrolls come from standing statutory appropriations, insulating them from the vicissitudes of political bargaining that inevitably is part of the budgetary process in governments everywhere.

Hong Kong should look to adopt a system that is in keeping with its common law traditions. Any reforms should also be consistent with the Basic Law, which guarantees judicial independence. Without this, there is no rule of law.

There may be concerns in these times of government deficits that taking such steps as separating the consideration of judges' pay from discussions of pay for the civil service and establishing a separate budget for the judiciary will be contrary to the spirit of belt-tightening.

Yet the changes can still be made in such a way to ensure there is full accountability to the public and that the funds are wisely spent. The goals of fiscal prudence and judicial independence need not be mutually exclusive.