Bulletin Number Four 1987

independent. Similarly in Hong Kong, the independ ence o f judiciary must be tested by reference to facts rather than theory. It matters little whether a state of affairs complies w ith any political philosophy, no matter how eminent its proponent. Under our system, it w ill be regarded as uncon stitutional for the legislature to reverse a judicial decision w ith retrospective effect. Nor is the executive permitted to designate which judges shall sit to hear a particular case. Also, it w ill be unconstitutional for a judicial office to be abolished while it has asubstantive holder, or for judicial salaries or privileges to be reduced. In the final analysis, the questions are whether there is in fact judicial independence, and what the practical measures are to ensure such independence. I may perhaps be forgiven for making the bold as sumption that we are all agreed on the existence of judicial independence as a fact that needs no proof. It is a fact which is firm ly established by the innumer able number o f cases decided by the courts over nearly one and half centuries o f our history, many of which were given wide publicity by the popular press. The people o f Hong Kong therefore have had the opportunity to judge for themselves whether the claim o f independence may be sustained. A smaller number o f people, whether as litigants or interested onlookers, have witnessed for themselves the open trials in the courts and are thus able to make a per sonal assessment o f judicial conduct. In the circumstances, it w ill, I venture to suggest, be more profitable for us to consider the practical measures which are adopted to ensure jud i cial freedom from pressure, particularly executive pressure. Firstly, the machinery by which judges are appointed and promoted. There is an independent body called the Judicial Services Commission, con sisting o f the Chief Justice and a High Court judge, the Attorney-General, a member o f the bar and a solicitor, and the Chairman o f the Public Services Commission, which advises the Governor on judicial appointments. Political considerations are kept out of that body altogether, and suitability for appoint­ ment or promotion is assessed solely on competence and experience. The advice has to be unanimous, and is always accepted, though in theory the Governor has the right not to. Supreme Court judges are ap pointed by the Governor on the Queen's instruction given through the Secretary o f State for Foreign and Commonwealth Affairs. Secondly ， the security o f tenure. Apart from those magistrates who are employed on contract which may or may not be renewed upon expiry, other magistrates as well as judges serve until retire­ ment age. D istrict Judges retire at sixty, and Supreme Court Judges at sixty-five. These judges are not re­ movable except for serious misconduct which makes them unsuitable for judicial office. For District Judges and Supreme Court Judges, the process for deter­ mining misconduct is cumbersome. A panel o f three judges has to be appointed by the Governor to enquire into the alleged misconduct o f the judge. The panel may then recommend that the judge's removal be considered by the Privy Council. The Privy Council then makes their recommendation to the Queen, who w ill act according to recommendation. Thirdly, the high status that is accorded the judiciary underlies the respect which the government has for the judges. It is also an unmistakable state­ ment that the government is committed to supporting the independence o f judiciary. Fourthly, freedom o f speech and a free press. Interference by the government is bound to be ex­ posed and publicly condemned. The fact w ill become widely known and popular disapproval voiced. F ifth ly , a free and independent legal profession ， which serves much the same function as the media in this respect. Sixthly, public hearings and publicity in de- livering judgment is an additional safeguard for the people against any official tampering w ith the honour o f the Bench. Seventhly ， the secured rights to pension and gratuities on retirement. This is yet another fact which helps to maintain judicial independence. Lastly, and perhaps it is the strongest o f all the safeguards, our tradition. Professor L loyd of London University in his monumental work entitled The Idea o f Law (1981) refers to the ‘very important factor (of) the development o f a strong tradition in favour o f ignoring political consideration' when making jud i cial appointments. Referring to the various experi ments made in some countries to remove any political flavour out o f the judiciary, he observed: ‘A ll such experiments are likely to prove stillborn in the absence o f a firm ly established belief in the essential need to preserve judicial independence. For without this governing ethos the concurrence o f the various bodies in question (viz., the judiciary and the legal profes sion) is likely itself to proceed on political lines.' A society's ethos is the product o f a tradition built up over decades, perhaps centuries, representing the hopes and fears, the ideal and values o f the people. The strength o f the tradition, and o f the ethos, o f a people lies in a common belief which everybody holds dear, and it is a strength that cannot be easily overpowered, even by force. 17