Flexibility, balance key to addressing judge shortfall

Lifting retirement age and appointing younger candidates would make for a better-populated bench, Paul Surtees believes

In recent weeks there have been many strong comments both for and against the current practice of employing judges from overseas to serve in our courts. The debate was triggered by the many unfilled judgeships, and the hiring of foreign judges to fill them. Some argue that our courts should be presided over solely by local judges, familiar with Hong Kong, and that bringing in foreigners somehow goes against Hong Kong’s best interests and that we would be better off without their judgments, tarnished by alien concepts.

Others claim that having a few foreign judges on the bench in Hong Kong boosts this city’s international character, and strengthens judicial independence and the rule of law here. There are points to be made — political points, for the most part — on both sides of this divisive argument. This column proposes ways forward.

In 1997, about half the judges here were foreigners; that figure has reduced to the current level of about 6 percent. There may be an element of racism, or misguided nationalism, in those objecting to having any foreignborn judges on the Hong Kong bench. But some of them have been here for decades and know quite as much as any locally born judge about Hong Kong. Their nationality is surely irrelevant, as they are employed only for their professionalism and discernment in making judgments.

Suggestions are now being considered to extend the mandatory retirement age of judges from 65 to 70 but that step has not yet been implemented. There can be no doubt that the graying nature of our bench, with many judges nearing the compulsory retirement age, contributes to the overall shortage of judges in Hong Kong. However, such a step, although welcome, does not come without potential difficulties. Firstly, not everyone wishes to continue with full-time work, however well-paid, beyond the age of 65. Offering judges part-time work, say of one or two days a week, from the ages of 65 to 70 might serve to keep many of them “in harness” for a few years more, thus helping address the shortfall.

It is paradoxical to have a situation, as now, whereby local judges must hang up their wigs at 65 while there are visiting foreign judges appointed to the Hong Kong bench who are already in their 70s. Retirement age should be uniform, for both foreign and local judges, however distinguished they may be. Their continued service should be subject to the requisite periodic health checks to ensure they are mentally competent to perform their intellectually onerous duties.

On the other hand, in some overseas jurisdictions, judges often used to continue in harness until they dropped dead of old age! With advanced age, sadly often comes mental decline. I well remember the crotchety old Lord Widgery, who was Britain’s lord chief justice, still sitting on the bench when he was clearly suffering from senile dementia. Annual checks on continued mental competence would be a useful precautionary measure in conjunction with a later retirement age for our bench.

But let us look at this age issue from another perspective. Appointing able lawyers as judges at a much younger age would give the courts judges capable of a longer service period with the added benefit of accumulated valuable experience. One good example in this approach is the mid-40s appointment of the late Lord Denning to the British bench. It allowed that famous and brilliant judge to give 38 years of exemplary service. This adds to the argument that younger judges should be appointed here in Hong Kong.

It is said that many of Hong Kong’s leading barristers in private practice (senior council) can earn in the private/corporate sector several times the salary of a Hong Kong judge. They therefore are disinclined to join the bench. Raising substantially the already generous benefits package of our judges would help to overcome that disincentive to judicial recruitment, to help reduce the judicial manpower shortfall.

Another disincentive to SCs to becoming judges, at the District Court level, is that upon retirement at 65 they are barred from returning to remunerative private practice as lawyers. That restriction could usefully be lifted to encourage able lawyers to join the bench for a few years, before returning to private practice. The cross fertilization of judges and barristers would also enhance both parties’ competencies.

The independence of Hong Kong’s judicial processes is highlighted by having very distinguished foreign judges work here. Our legal system is thereby better seen to be of high international standard, for surely no senior foreign judge would wish to enter a system, even temporarily, wherein judicial independence is suspect as their reputation would be compromised.

In any case, at the highest level (the Hong Kong Court of Final Appeal), the proportion of foreign judges is capped at 20 percent of membership. Let us therefore welcome younger local judges, as well as retaining some overseas judges, to leaven the mix.