Benchmarks on the line for legal system

THE legal year opened yesterday with its usual pomp and ceremony. Despite the Governor's decision to dispense with the feathers and white uniform, bewigged and robed judges and lawyers paid homage to tradition for another year. Yet amid the old-fashioned colour, the Chief Justice, Sir Ti Liang Yang, made a powerful plea for modernity, both in tailoring judges' pay and conditions to the post-colonial era, and in the introduction of computer technology to the judiciary.

Sir Ti Liang's argument was not, as might have been expected from most of the recent publicity on the subject, that judges' pay in general must be raised substantially to attract more local candidates. On the contrary, he took the unusual view that an increase from 30 per cent to 38.6 per cent in the proportion of locals in the judiciary since 1987 showed much had already been done in that direction. He was also able to point to the considerable local interest in the Supreme Court Bench as a sign that more such appointments could be expected. Instead of recruiting from Britain, more magistrates are likely to be found who can read, write and speak Chinese.

However, the Chief Justice did refer to the dearth of local appointments to the lower levels of the judiciary. The solution he argued for was not a massive increase for all judges, but the simple remedy of offering local judicial appointments the same leave and passage benefits as recruits from overseas.

It is extraordinary that this step was not taken long ago. It was recommended in 1989 by the Standing Committee on Judicial Salaries and Conditions of Service, and discrimination has already been ended for the top judicial positions. Yet regrettably, as Sir Ti Liang put it, the Government has not seen fit to treat members of the judiciary any differently in this regard than the rest of the public service.

Bar Association chairman Ms Jacqueline Leong enthusiastically supported the Chief Justice's view, but her main concern was not discrimination in pay, but a more fundamental threat. Hongkong's judicial independence is at risk from China's warning to set up separate ''judicial organisations'' if the Governor did not withdraw his political reform proposals. Vague though that warning may be, Ms Leong is right to stress how it could jeopardise the careers of the territory's pre-1997 judiciary.

Uncertainty over China's intentions undermines the localisation programme, and with it any hope of finding the best people to serve before and beyond the transfer of sovereignty. Few locals would wish to put a promising future at risk, and those that do will be concerned for their independence should they be appointed to serve the separate ''organisations'' set up by the Chinese Government. China's commitment to the Joint Declaration predicates that this threat should be withdrawn, independently of any other dispute it may have with the Governor.


Notably absent from yesterday's speeches, however, was discussion of that other guarantee of Hongkong's judicial independence, the right of overseas judges to sit on the future Court of Final Appeal. Ms Leong's predecessor, Mr Anthony Rogers, made it theissue of his office. Now it seems to have been placed on the back-burner, perhaps for fear of further aggravating relations with Beijing at this time. Yet the need to set up a functioning Court before the handover means that the stated disapproval of the Legislative Council for the arrangements agreed by the Joint Liaison Group cannot be ignored forever.

Meanwhile, the decision to end the anachronistic tradition of sending Hongkong judges to sit on the High Court and Court of Appeal in Brunei is both welcome and overdue. That throwback to the colonial era was increasingly untenable at a time when judges trained in the Common Law and the English-based legal system were being asked to rule on cases involving Islamic justice and punishments. An unjustified excursion which took judges away from a growing workload in Hongkong, it created a situation which eventhose who enjoyed its benefits found morally uncomfortable.