Early departure of chief justice seen as a good test for rule of law

PUBLISHED : Sunday, 07 March, 2010, 12:00am
UPDATED : Sunday, 07 March, 2010, 12:00am

The departure of the chief justice, Andrew Li Kwok-nang, will be 'a good test of how deeply rooted is the legal culture and rule of law in Hong Kong', says a leading constitutional law expert.

The chief justice announced last year he will be taking early retirement and will step down at the end of August after leading Hong Kong's judiciary for 13 years as first chief justice since the resumption of sovereignty.

Reflecting on how the judiciary will prepare for a new chapter in its young history in an interview with the Sunday Morning Post, Professor Yash Ghai, an expert on constitutional law, adviser to the United Nations and author of the authoritative text on the Hong Kong Basic Law, said he believed Li would play 'a major role in choosing his successor' and that it would be unlike him to depart without having a relatively clear picture of the succession.

Ghai praised Li's work in steering the judiciary through unique historical and constitutional circumstances in handling both the legal and administrative sides of his role. Despite Li's impending departure, Ghai said Li's work in laying a strong foundation for the judiciary would ensure a smooth transition.

'There are a number of good judges at the Court of Appeal and some extremely good judges in [the Court of First Instance]. It will be OK,' he said.

Regarding Li's departure, Ghai said it was in keeping with his character that he should want to retire early for the sake of 'orderly succession planning in the judiciary in the coming years .... He wants his successor to have, as much as possible, the same opportunities that he had in fashioning the court,' he said.

He noted that it was rare for a chief justice to bear the burdens of both administrative and court duties, and said spending many years as the symbolic head of the judiciary, having to act diplomatically and manage the judiciary with the right balance between confidentiality and transparency, naturally takes its toll.

'I have felt for some time ... that chief justices should not have a term of more than six, seven, eight years, but they should continue on [as judges of final appeal] afterwards. To burden the person with so many different responsibilities is very unfair,' he said.

Indeed, statistics gathered by the University of Hong Kong's Centre for Comparative and Public Law show Li has been a prolific judge, despite his administrative duties. Since 1997 he has heard 190 substantive cases and written 44 majority judgments and seven concurring judgments, without counting work on applications for leave to appeal.

Ghai noted that a change to the system would not be impossible, since the current arrangements are legislated locally, rather than set in the Basic Law.

As to the next chief justice, Ghai said he hoped the candidate would be 'a good lawyer, with broad perspective', since the role required a good knowledge of every aspect of the law. However, due to the job's administrative duties, he said it would not be advisable to have a chief justice with no previous judicial experience.

Meanwhile, leading academics, practitioners, and judges continued their presentations at the University of Hong Kong's conference, Hong Kong's Court of Final Appeal: The Andrew Li Court 1997-2010.

The presentations will be compiled in book form later.

Presentations were given yesterday on the increasingly high regard in which the Hong Kong court is held in other common law jurisdictions, and its approach to human rights and other aspects of the law.

Michael Thomas QC, a former attorney general during the period of the Sino-British Joint Declaration, recounted the controversial debates and concerns at the time regarding the presence, or absence, of enough foreign judges to ensure the common law system was upheld.

The outcome of those debates was that it is not mandatory for foreign judges to sit in a hearing at the Court of Final Appeal. But under Li, only 9.3 per cent of cases have been heard without the presence of a foreign non-permanent judge.

Li again attended the conference yesterday but kept a low profile at the back of the hall, while enjoying the occasional light-hearted moments.