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Time runs out for the judiciary

Margaret Ng

The judicial system is said to be a linchpin of confidence in Hong Kong. Yet, from problems thrown up recently in Legco, much of the question of its continuation and future seems destined to remain unanswered until at least after the chief executive designate has been named, and that is unlikely to be sooner than the end of this year.

For example, according to the administration, nothing can be done about the all-important matter of the recruitment of judges for the court of final appeal until there is a chief executive designate, with his team designate in place. This is because the administration sees its role, under the Joint Liaison Group (JLG) agreement on the court of final appeal, as merely one of assisting the chief executive designate and his team on this matter.

According to the JLG agreement on the court of final appeal, and the Court of Final Appeal Ordinance passed in the last session of Legco, the court has to come into operation on July 1, 1997. Yet there are many steps which have to be gone through before the court can be established. What it means now is that all these steps have to be gone through within a maximum of six months.

People are obviously most concerned with the recruitment of the judges of this august court. But no judges can be appointed by the chief executive until a judicial officers recommendation commission has been appointed to recommend them. We are told that the composition of this commission will be largely the same as the present Judicial Services Commission.

So is there going to be a 'commission through train'? Or will there be a change of train, and if so, who are to get off and who are to replace them, and on what basis? What date will the term of present members of the Judicial Services Commission expire? These are obviously important questions if one is to avoid any suggestion that judges will be vetted politically.

None of these questions will be explored until there is a chief executive designate.

The recruitment of judges takes time - six months is hardly a reasonable period for head-hunting. But before recruitment can even begin, qualifications have to be looked for and terms of service will have to be drawn up.

It seems the administration has no idea how much the final court judges will be paid. Nor has it any idea how to justify the remuneration in terms of value for money. August as the court is, the administration will have to come to the Finance Committee to ask for the funds in advance, and at that time the officials will have to answer questions on whether there is value for money.

One of the inevitable questions to calculate value for money is going to be the projected case-load of the court and the judges. At the present level of annual appeals to the Privy Council, or even twice that number, the administration will certainly have a job trying to justify the high salaries one may anticipate. Any hiccups will further reduce the time left for actual recruitment.

Another important matter of concern to potential litigants is transitional arrangements. At the moment, no cut-off date has been fixed for appeal to the Privy Council. Although it is said that the Privy Council will retain its jurisdiction up to June 30, 1997, a litigant who lodges an appeal with the Privy Council before that date does not know whether his appeal will be heard by June 30, and if not, what will happen to his appeal.

A complete answer depends on the operation of the court of final appeal. As matters stand, no discussion on this link will even start without the chief executive designate.

Further uncertainty arises from China's unfortunate decision to go ahead with a 'provisional' legislature without any basis in law. Article 90 of the Basic Law requires the appointment of judges of the court of final appeal to be endorsed by 'the Legislative Council'. That can only refer to the Legislative Council within the provisions of the Basic Law. If the legality of the provisional Legco is challenged, then any appointment endorsed by it will also come under challenge.

Uncertainty is not confined to the court of final appeal. In spite of the administration's insistence that the judicial through train is clear and requires no further clarification, areas of ambiguities have been pointed out in Legco, in its sitting of May 15, as well as in a recent panel meeting.

The first ambiguity concerns Article 93, relied on as the 'through train' provision. This article provides that present judges 'may all remain in employment' after 1997. The question is whether the use of 'may' rather than 'shall' can be interpreted as 'may or may not', or some but not necessarily all judges may remain in employment, as some Chinese officials have suggested and may yet suggest again.

This point is reinforced by comparing the English text with the Chinese text. The corresponding part in Chinese is: ' . . . may all be retained [in service]'. The administration had attempted to explain away queries on 'may all remain' by saying that the flexibility of 'may' is there to give a judge the choice.

This explanation falls apart in the Chinese text. Or, worse, a flexibility with regard to 'retaining' a judge in service can only be flexibility reserved for those authorised to appointing him or renewing his appointment.

Secondly, there is a discrepancy between Article 88 and Article 93. While Article 93 simply says judges 'may all remain in employment' et cetera, Article 88 makes it clear judges of the SAR 'shall be appointed by the chief executive on the recommendation of an independent commission' - presumably the same Judicial Officers Recommendation that recommends judges of the court of final appeal.

Thus there may not be a through train, or at least not a through train without some formality of recommendation and appointment. If so, how and when this is to be effected are questions which need to be resolved. If recent experience is any guide, something which appears to be, and ought to be non-controversial may yet flare up. If there are to be any more surprises, let us have them now.

One High Court judge recently suggested in a speech published in Ta Kung Pao, that it is unacceptable to continue to appoint or promote non-Chinese speaking expatriate judges in view of the desirability of bilingualism in court.

Are the courts to be purged of non-Chinese judges? And is this good for the judicial system? The time is long overdue to face these questions.

To pretend that we can put everything on hold until the chief executive designate emerges, simply will not do.

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