Judges' salaries need protection by law
The public understandably expects people who earn a lot of money from the public purse to share the pain of community-wide pay cuts during the economic downturn. Any exception to this shared sacrifice therefore needs to be strongly justified in terms of the best interests of our city. Our judges are a case in point. The chief executive has rightly agreed to freeze their pay for 2009-10 - in other words to quarantine them from the 5.38 per cent pay cut imposed on senior civil servants.
It is right even though Hong Kong's senior judges are among the highest paid in the world. The chief justice earns nearly HK$242,000 a month while other judges of the Court of Final Appeal and the chief judge of the High Court earn more than HK$235,000. It is easy to argue that since the civil service pay cut would still leave them earning well over HK$200,000 a month, this would not only be fair but would set a good example. But with judges, there are important principles at stake which transcend any desire to cut costs.
There is an overriding need to respect judicial independence. This is the principle which has been used to justify the decision not to cut the judges' pay. Judges need to be free to rule without fear or favour. One of the easiest ways in which a government can apply pressure on judges is to cut - or threaten to cut - salaries for the judiciary. This is why it is necessary to safeguard judges' pay.
The principle was a factor when the government decided last year that the civil service pay scale would no longer be used to determine judges' salaries, breaking a link dating back to the colonial era. The judiciary's independence from executive government and the legislature is fundamental to the rule of law. As such, it is a pillar of our city's legal system and continuing success as a centre for business and finance.
Judges had long complained about their pay being linked to that of the civil service, because they argued they were not - and should not be perceived to be - a government department. Indeed, they must be seen to be free from political or public pressure.
Chief Executive Donald Tsang Yam-kuen's decision followed the advice of an independent standing committee on judges' pay and conditions set up last year. The government said then that there was no need to pass a law to prevent it from cutting judges' pay in order to safeguard judicial independence. A law banning a pay cut had been recommended in 2003 in a special report by a non-permanent judge of the Court of Final Appeal, Sir Anthony Mason, who considered standards across the common law world, including in Britain and Australia.
The decision not to cut their pay now lends credence to the government's position. Hopefully a convention will develop that judge's pay will not be cut. But a law would make the position clearer and provide better protection for the future.
It should be remembered that judges often have to determine matters before them in which the government is a party, and that increasing use is being made of applications for judicial reviews to challenge executive or administrative decisions.
Our judges' high pay levels help attract the best legal talent. That cannot be taken for granted when top barristers effectively take pay cuts to join the bench and are barred from resuming private practice on retirement, although their services would be much in demand.
The new system, while a big improvement, only goes halfway. Hong Kong cannot afford to put any price on judicial independence, the ultimate safeguard for the rule of law.