The opening of the legal year is the occasion for a speech by the Chief Justice. Some of this is traditionally devoted to practical matters – digitisation, manpower, new courtrooms – and some of it is traditionally devoted to praising the Hong Kong legal system in general and its independent judiciary in particular.
The speech does not change a great deal from year to year. I notice one or two details have dropped out since Chief Justice Ma’s swan song in 2020. This year’s offering did not repeat Ma CJ’s list of requirements for a fair trial, which included “every person charged with a criminal offence is also entitled to be tried without delay.”
This seems to have fallen by the wayside. The current CJ, Andrew Cheung, did include “There are still a significant number of criminal cases pending before the District Court arising from the events in 2019.” This is a rather shameful situation, considering that the other item from Ma CJ’s speech which no longer features is the right to bail, which the national security law has effectively abolished.
An independent judiciary is a wonderful thing, but it does not prevent people being detained for years without trial if that is what the law allows. Judges, as one writer put it, “will loyally chug off in whatever direction they are pointed.” Cheung CJ lovingly enumerated the protections for human rights provided in the Basic Law and the Bill or Rights Ordinance. He did not mention the erosion of these rights by the national security law, which over-rules both of them.
All this was perhaps to be expected. The CJ’s speech is an opportunity to rally the troops. A critical analysis of their work would not be welcome or appropriate. All the same there were some surprises.
Cheung pointed out that judges on the list to hear security law cases are already judges. They have been selected by the usual process and taken the usual oath. This is of course true, though it sounds a bit like saying that all drivers are good drivers because they have passed the test.
More alarmingly we came to this bit: “Criminal liability will continue to be determined in accordance with the applicable law and the strength of the evidence presented before the court. Those who are proven guilty will be convicted and those not so proven will be acquitted. Convicted defendants will be given punishments that their crimes deserve, no more and no less. This is our job…”
The problem with this is that it flies in the face of overwhelming evidence that judges do in fact vary in all sorts of ways. For a detailed analysis His Lordship could try “Noise”, by Danny Kahneman and others, which looks in a rather academic fashion at the variations in decision-making by judges and other professionals.
We should note in fairness to judges that they are a tempting target for this sort of analysis because their judgements are public and also expressed in quantitative terms: the length of a sentence, the size of a fine or an award. Studies of other professionals making complex decisions – insurance adjusters, forensic accountants, university admissions officers or company appointment teams – do not suggest that judges are unusually unpredictable.
Readers who do not wish to attempt a whole book may enjoy this passage from an anonymous lawyer who writes as “The Secret Barrister”:
“No two judges are the same … Who you get is often determinative of what you get. If there has been a trial the same judge will usually pass sentence, but where a defendant has pleaded guilty, it is normal for a judge to be randomly allocated for the sentence hearing. Frequent flyers become well acquainted with the judicial personalities in their local courts, and the seasoned criminal opposite you can either break down in tears or dance on the table with jubilation (I’ve seen both) when you tell them the identity of their sentencing judge.”
The Secret Barrister: Stories of the Law and how it’s broken p 282
The importance of this for our purposes is that if we accept that all judges are different, then we cannot lay all worries about the list of judges hearing security law cases to rest by saying that they are just like all the others. Indeed if all judges were the same there would be no need for such a list.
We are then led to wonder what qualities are sought in those on the list, or avoided in those not on the list. Unfortunately the selection is an opaque “black box”. Like so many top jobs the appointment is nominally by the Chief Executive. She is allowed to consult the Chief Justice but is not bound to, and is not bound to follow any advice she may receive from that quarter. Does she receive advice from other people? It seems likely. Who? We don’t know.
Interested spectators are reduced to trying to interpret the selection criteria from the performance of the chosen team. This does not suggest that those criteria include a robust enthusiasm for human rights, a propensity to examine critically the evidence and arguments put forward by the prosecution, or a commitment to speedy trials.
Indeed the level of delay achieved in security law cases has given rise to a scurrilous rumour in detainee circles that the Department of Justice’s preferred strategy is to avoid security law trials altogether, by keeping defendants in jail on remand until they plead guilty to get it over with.
This is of course nonsense. No conscientious lawyer would adopt such a policy. The fact that it is believed shows how much confidence in justice has been eroded by unconscionable delays in hearings for people who have been refused bail.
While we know very little of how judges are put on the list to hear security law cases we have a little more knowledge of how they are put off it. The list is apparently updated every year, by the CE again.
This is a serious drawback. The general principle governing judicial independence is that judges should have no fear of consequences if they make decisions which are unpopular, either with people generally, or the government, or the prosecution.
This is why judges of the US Supreme Court are appointed for life, and judges in Hong Kong can be dismissed only by a panel of other judges. Judges in common law countries generally serve quamdiu se bene gesserint, which means as long as they behave themselves. Lawyers love their Latin.
I am prepared to believe that there are quite a lot of judges who are happy not to be on the list of those allowed to hear security law cases. There may even be some who regard their exclusion as an honour. However, it seems to be generally agreed in the legal profession that while being on the list doesn’t do you much good, being hoofed off it would be a serious career calamity.
This arrangement is not compatible with judicial independence.
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