Hong Kong neglects judicial nominations despite case backlog

Originally published on Nikkei Asia (February 19, 2024)

HONG KONG -- The Hong Kong government is failing to act on judicial nominations despite an acute shortage of judges, sources told Nikkei Asia, raising further concerns over the functioning of the legal system under tightened control by Beijing.

Three out of six potential High Court judges put forward by the Judicial Officers Recommendation Commission (JORC) in its last round of suggestions in 2021 were never appointed by the city's leader. One candidate pulled out of the process due to concerns over sweeping changes in the legal landscape made by the national security law that Beijing imposed in mid-2020, while another failed to pass a background check, three people with knowledge of the matter said.

The gap is unusual, according to legal professionals and academics. And since 2021, the commission has not recommended any full-time judges for appointment to the High Court, which deals with key civil and commercial matters as well as serious criminal offenses. That includes the high-profile case against pro-democracy media tycoon Jimmy Lai, which is only being heard now, nearly three years after he was charged in April 2021 under the national security law.

Amid the shortfall of appointments, national security cases like Lai's have been pushed back repeatedly and a record number of defendants are behind bars awaiting trial.

Only 161 of 211 positions within the judiciary are filled, with the highest ratio -- 36% -- of vacancies at the High Court judge level. In light of the deficit, the judiciary launched a recruitment drive advertising vacancies for the High Court in October last year.

Yet of the six judges nominated in 2021, only Justice Johnny Chan, Madam Justice Yvonne Cheng and Madam Justice Anna Lai were appointed. Nikkei Asia decided against naming the senior counsels who were not appointed due to the sensitivity of the matter.

"This shortage is plainly appalling in terms of how it prolongs legal limbo for defendants," said Alvin Cheung, a nonresident affiliated scholar at New York University's U.S.-Asia Law Institute who was previously a barrister in Hong Kong. "It is, however, also a major problem for businesses involved in or contemplating litigation in Hong Kong."

At the opening of the legal year in January, Chief Justice Andrew Cheung touched on the gravity of the shortage, saying he hoped to see more enthusiasm for applying to the High Court Bench "for the sake of the long-term sustainability of the common law system in Hong Kong and the work of the judiciary in particular."

Hong Kong's judiciary declined to comment on the 2021 recommendations but confirmed only three high court judges were appointed since January 2020.

"The judiciary has received encouraging responses to this round, particularly from the middle-ranking members of the legal profession to the latest recruitment drive for district judges," it said in response to questions from Nikkei Asia.

Carrie Lam, the city's chief executive at the time of the nominations, declined to respond.

The nine-member JORC is led by the chief justice and includes the government's Secretary for Justice, judges and heads of legal associations. It selects the territory's judges through a closed-door process, assessing them on their ability, credibility and capacity to be independent. But it is the chief executive who has the authority to appoint judges, according to the Basic Law that governs the city.

The Secretary for Justice and the Bar Association refused to comment when asked about the matter.

Withdrawing an application by a nominee is unheard of, according to legal professionals, due to the rigorous and lengthy interview process. However, senior lawyers who spoke to Nikkei Asia on condition of anonymity said the ripple effects of the security law have made the position of a judge less appealing.

Since the enactment of the law, judges must pledge to uphold national security and to protect the "overall interests" of Hong Kong. The oath also spells out that "any acts that undermine the order of the political structure led by the chief executive" are a violation.

"Political background checks have [intensified]. Judges have to be very trustworthy," said one senior lawyer who declined to be named due to the sensitivity of the matter.

Chief Justice Andrew Cheung speaks during a ceremony marking the new legal year in Hong Kong on Jan. 22.   © Reuters

An independent judiciary has been a pillar of Hong Kong's success as an international finance center. But worries about the judiciary's independence have quickly grown among rights groups, diplomats and business executives following the security law's enactment, which allows the city's leader to handpick judges to oversee national security cases without the chief justice's consultation. The requirements of what constitutes a national security judge are unknown.

In November, a bill was introduced to the U.S. Congress with bipartisan support to sanction 49 Hong Kong officials, judges and prosecutors involved in national security cases. The judges include Chief Justice Cheung and Magistrate Amanda Woodcock. The judiciary slammed the suggestions to impose sanctions as a "flagrant and direct affront to the rule of law and judicial independence."

Melissa Pang, the former president of the Law Society, told a closed-door panel in November that the U.S. bill would make it even more difficult for the judiciary to attract talent, according to lawyers who attended. Judges in Hong Kong are unable to return to private practice once they resign.

The Law Society denied the comments by Pang. "Ms. Pang reiterates her full confidence in Hong Kong judicial independence, the judicial officers' ability and commitment to administer justice without fear or favor, and the determination of the legal profession to safeguard the rule of law and to support the judiciary when faced with external pressure or threats of interference," the society said in a statement to Nikkei Asia.

Experts say the prestige that once came with being a judge has been overshadowed by the security law. "Who would want to put themselves out there and risk their reputation?" another senior lawyer said.

This has left cases piling up and defendants stuck in jail. The chief justice said in 2022 that a ruling must be handed down up to nine months after the conclusion of a hearing. Hong Kong had 3,304 people in remand as of September 2023, according to the Correctional Services Department. Put another way, over one-third of people in prison were defendants.

Since the city was a British colony before the handover to China in 1997, bringing in foreign judges to lend expertise had been a common practice. But several foreign judges, including senior British justices Lord Robert Reed and Lord Patrick Steward Hodge, resigned following the security law's introduction.

The Law Society, the industry body that represents solicitors, suggested the judiciary could expand its search for talent. "There is not a shortage of experienced and dedicated solicitors who are keen to contribute to the administration of justice," said Chan Chak-ming, president of the Law Society.

But anyone joining the bench faces a fundamental dilemma. Another legal academic who declined to be named said the courts are faced with "an inherent conflict" between "safeguarding the law prescribed by the state and national sovereignty" and "administering justice commensurate with the protection of the fundamental rights guaranteed to Hong Kong residents."