Judicial independence is worth paying for

PUBLISHED : Thursday, 22 May, 2008, 12:00am
UPDATED : Thursday, 22 May, 2008, 12:00am

Negotiations over pay rises for civil servants and judges are not always matters that attract great interest from the public. But the latest developments deserve serious attention, at least in regard to judges. Following a pay trends survey, the government has proposed rises in the range of 3.9 per cent to 6.3 per cent for civil servants. This is in line with the 4.9 per cent inflation rate and is likely to be accepted by civil service unions, despite the usual grumblings that it should be higher.

Far more importantly, though, the government has decided that the civil service pay scale will no longer be used to determine judges' remuneration. The delinking is a historic decision and long overdue. Judges have a different status from civil servants. They must be free from political or public interference in the way that those who work in the civil service are not, despite their avowed neutrality. Yet, their pay has been traditionally linked with civil servants' in a practice dating back to the colonial era. Formally shielding their pay from government decision-making - and clearly separating it from the civil service pay structure - will help enhance judicial independence, which is a key pillar of the 'one country, two systems' concept and the city's continuing success as an international hub.

Under the new system, judges' remuneration and conditions will be based on recommendations by an independent body, which will consider factors such as private sector pay trends, judges' responsibility and workload, their existing benefits, retirement age, cost of living and the ban on judges resuming private practice. But the new changes do not go far enough. There is a need for legislation to remove any potential for the government to cut judges' wages and conditions, to ensure there will be no perception of interference with the judiciary. The remuneration body should, therefore, be established by law. The government, sensibly, has not ruled this out. It should enact such legislation as soon as practicable because it is the norm in most common law jurisdictions.

Back in 2003, Sir Anthony Mason, a non-permanent judge on the Court of Final Appeal, recommended in a special report that cutting judges' pay should be prevented by law. His proposal, no doubt, failed to carry much public appeal, especially when it was made during the economic downturn. Such a move would, no doubt, raise eyebrows even now as our city's judges already enjoy some of the highest wages and benefits of any judicial officers in the world. The pay levels help attract and retain the best legal talent. This is especially so when top barristers take substantial pay cuts to join the bench. But a legal restriction on pay cuts for judges should be considered because it would further underpin their independence. The judiciary must be shielded from any form of pressure.

The civil service's pay scale became extremely politicised during the years of deflation and was cause for much acrimony. This was especially the case after civil servants were subject to wage cuts to which judges were exempt. In 2005, a special committee recommended delinking their pay scale, but this was put on the backburner by the government until now.

Chief Justice Andrew Li Kwok-nang is right to welcome the latest decision, while expressing disappointment it did not go further. The new system will also provide by law a budgetary appropriation to ensure sufficient funding for the judiciary. This is half way towards full legislative protection for judges' pay. Judicial independence and the rule of law are important assets. We should not nickel and dime such fundamental pillars on which our city's future depends.