Appoint the best judges
The furore over former Court of Appeal Judge Michael Wong Kin-chow may prove to be a blessing in disguise if it is the catalyst for overdue change in the appointment, training and evaluation of judges.
There is no better time than now for Chief Executive Tung Chee-hwa and Chief Justice Andrew Li Kwok-nang to address the fundamental problems that exist and make changes that will improve the quality of justice dispensed in our courts.
Regarding appointments, seven of the nine members of the Judicial Officers Recommendation Commission (JORC), whose job it is to make recommendations to the chief executive on the appointment of judges, are appointed by the chief executive. The other two members are the chief justice and the secretary for justice, a controversial choice given her close political ties to the chief executive, and through him the central government, as a member of the Executive Council.
While the Law Society and the Bar Association are each entitled to put forward the name of one solicitor and one barrister respectively, the nominees' effectiveness as an independent control on the Tung-appointed commission is nullified by the fact that, in contrast to former practice where unanimity was required, under current legislation a judge may be appointed on a majority vote even if two members vote against. Given the built-in politicisation of the selection of JORC members, the likelihood of a candidate who is favoured by conservative elements, but opposed by the two independents, not being appointed is negligible.
To ensure we get the best judges, changes are essential not only in the composition and mechanics of the commission but in other aspects of the selection process. As in England, appointments in Hong Kong can be made more transparent and avoid charges of cronyism by advertising vacancies and introducing a formal assessment process. The problem of judges being appointed without any form of training has been addressed in England by a structured training process, which needs to be introduced locally, where the number of decisions being overturned on appeal is alarming.
Unsurprisingly, it was felt in England that the fact that the majority of new judges had done occasional work as part-time judges while still plying their trade as barristers was insufficient preparation given the totally different roles of judge and advocate.
Finally, the need for the appraisal of judges to be ongoing is a pressing one. Hong Kong should follow the example set by other jurisdictions, such as Florida, where lawyers work together with the judiciary to enhance the quality of the judicial process by completing a judicial evaluation form at the end of a trial.
HUGH TYRWHITT-DRAKE, Sha Tin