Judicial accountability must not cost its independence

Cliff Buddle says the dramatic rise in complaints against judges is a symptom of the political divide. But politics must have no place in the system that will ultimately decide on complaints

Complaints against judges in Hong Kong have soared as the courts process hundreds of politically charged cases arising from antigovernment protests in 2019.

Almost 99 per cent of these complaints follow orchestrated campaigns involving identical allegations, many accusing a judge or magistrate of bias. Both political camps have played this game. The attacks are mostly unjustified. Four magistrates have been cleared of bias after investigations.

But the judiciary, buffeted by fierce criticism of its judgments in sensitive cases, is taking the complaint process seriously. It is right to do so. Judges are not above public scrutiny. The judiciary must be transparent and accountable if it is to maintain its credibility.

In the latest move, revealed on Friday, the judiciary proposes a new complaints system for later this year. Members of the public would, for the first time, be involved. There is nothing wrong with this in principle. But care must be taken to ensure that judicial independence is upheld.

The two-tier system would first involve a panel of judges investigating complaints that are serious, complex or a matter of public concern. The panel would make recommendations for resolving complaints with the help of the leaders of relevant courts. This is similar to the existing process.

But their findings would then be considered by a newly established advisory committee comprising judges and members of the public. That committee would be chaired by the chief justice and provide him with advice on how to handle each complaint. The chief justice would make the final decision.

According to a Legislative Council paper, people selected for the committee would have “profound expertise and experience in professional, community or public services.” That is to be expected. But the aim should be to ensure greater objectivity and diversity. This must not turn into an exercise in targeting judges on political grounds.

A staggering 5,559 complaints were made against judicial officers last year, compared to 368 in 2019. In contrast, only 1,292 complaints were handled by Britain’s Judicial Conduct Investigations Office in 2019-2020.

The independent statutory body in Britain assists the Lord Chancellor and Lord Chief Justice with complaints. Investigations are conducted by judges. Ultimately the decision is jointly made by the government minister and the head of the judiciary. In some serious cases a panel of judges and members of the public are involved. There are broad similarities with the proposed system in Hong Kong.

The judiciary identified fundamental principles for the complaint mechanism. These must be understood. Complaints will not be considered if they concern decisions made by judges in court. The appeal process – not the complaints mechanism – handles challenges to verdicts and sentences. There were more than 1,000 complaints like this last year. In the UK, such complaints make up the majority of those received. All these complaints are dismissed.

The process must also be consistent with the Basic Law’s provisions governing the removal of judges. They can only be removed on the recommendation of a tribunal of judges and only then for misbehaviour or if unable to discharge their duties.

Most of the complaints lack merit. Less than 3 per cent in Britain lead to findings of misconduct. But it is interesting to see that 12 magistrates were removed in 2019-2020. Three British judges were sacked in 2015 for viewing pornography on court computers in their offices. Another judge was removed in 2017 for making abusive posts online. There have, thankfully, been no such cases in Hong Kong.

High standards of personal conduct are expected of the city’s judges. They are governed by a code established in 2004, which deals with bias as well as matters such as the circumstances in which they are allowed to visit karaoke bars or have a flutter on the horses.

The city’s dramatic rise in complaints against the judiciary is a symptom of the political divide. The proposed changes can provide more objectivity and diversity. But the final decision on complaints must lie with the judiciary and politics has no place in that process. The independence of the judiciary must be paramount.