REGARDLESS OF THE reasons given, the departure of two permanent Court of Final Appeal (CFA) judges involved in the controversial right of abode case will re-open wounds not properly healed since the saga. Their resignations again put the issue of judicial independence in the spotlight. The saga began in January last year when the five-member panel of judges led by Chief Justice Andrew Li Kwok-nang ruled that the Government was wrong in its bid to deny the right of abode to mainlanders born before their parents became Hong Kong permanent residents. The judges came under a blistering attack, in some cases personally, from mainland legal experts and prominent local critics, particularly for their statement that the CFA had the final say over whether Beijing's actions comply with the Basic Law. The public is bound to question whether the treatment they received, in a political storm during which the Government did not support the court, prompted the two judges to go. This is in spite of the fact, as non-affiliated legislator Margaret Ng Ngoi-yee carefully put it yesterday, that there is no sign of political pressure behind the resignations. 'I haven't seen anything which suggests any basis for speculation,' she said. Sharing the view that the departures should not be seen as 'resignations in protest', Chinese University academic Lau Siu-kai says fresh anxieties about the court are bound to emerge. 'In the overall political context, it will create some anxieties. That is inevitable. Some people will feel they [the judges] are losing interest [because of the saga]'. One plausible reason for the guarded response to the departures of Mr Justice Henry Litton and Mr Justice Charles Ching is that bold speculation would be too costly for the Judiciary and the community. There is a community consensus that the storm over the right of abode saga and the challenge against the Judiciary should come to rest. The Chief Justice pointedly said in a public speech in January that the Government had a constitutional responsibility to defend the principle of judicial independence. But it is also in the interest of the whole community to uphold an independent court as a cornerstone of the rule of law. So any hasty conclusion that the departure of two CFA judges represents a vote of no confidence in the Judiciary would be damaging. This is even more so at a time when local and international confidence in an independent Judiciary and rule of law has yet to recover from the wounds of last year. The latest sign of a lack of confidence came yesterday in a pessimistic assessment of the business environment for the next five years from the London-based Economist Intelligence Unit. Hong Kong has ranked as the world's best business environment for the past five years. Yet for the period to 2005, the unit puts the SAR behind the Netherlands, Britain, the United States, Canada and Singapore. The unit's report does not mention the right of abode case, but the fall was attributed to a drop in confidence in the political environment after 1997 and more government intervention in the economy than before. A poll conducted last month by the Chinese University's Institute of Asia-Pacific Studies found that public perception of a fair and impartial Judiciary has yet to recover to the levels prior to the right of abode saga. A fifth of respondents were dissatisfied with the impartiality of the courts, while 41 per cent were satisfied. That compares with 52 per cent who were satisfied with the Judiciary in October 1998. Professor Lau says: 'There is a high price to pay for the disputes triggered by the right of abode case and some others in the past two years. Public confidence in the Judiciary has slipped. Although there has been no major challenge to the rule of law, there are some doubts about it.' The appointment of the Chief Judge of the High Court, Patrick Chan Siu-oi, to sit on the CFA bench will contribute significantly to the appellate court, he says. 'The addition of one more local boy who reads and speaks Chinese and is more concerned about cross-border judicial matters will increase diversity of views at the CFA. The CFA has drawn a lesson in the past two years. Conflicts between it and the NPC Standing Committee should be reduced.' The personnel changeover at the top court has again reflected the longstanding problem of the shortage of legal talent to sit on the bench, Professor Lau says, but he hopes greater awareness will improve matters. 'I'm cautiously optimistic. Hopefully, the sense of crisis within the legal fraternity will create a sense of mission and commitment with more people willing to become judges. That will be an important part in the upholding of the rule of law and is, in itself, the highest form of commitment of an individual to serve the community.' The public is also watching more closely how courts administer justice in the wake of a spate of controversies, particularly relating to the Basic Law. This is partly because some provisions in the post-handover charter are, or have already been, at the centre of disputes within the community over how they should be interpreted. An example is the case over rights of non-indigenous residents in rural elections, which relates to Article 40 of the Basic Law, providing for 'the lawful traditional rights and interests of the indigenous inhabitants of the New Territories'. Far more important is the fact, as shown by the right of abode saga, the Judiciary plays a crucial role in the experiment of 'one country, two systems'. At stake is not just its independence, but also the broader issues of power and political relations between the SAR and the central authorities and the fundamental differences between the two systems. The changes at the CFA have again highlighted the daunting challenges for the court and the community under the new constitutional order.