Opinion｜Judicial accountability: Measures to promote public confidence a positive development

By Grenville Cross

Every year, the courts handle thousands of cases, and there are sometimes complaints over the way in which judges and magistrates conduct themselves. Although judicial decisions can only be challenged by an appeal to a higher court, such things as bias, rudeness or tardiness will, where appropriate, be investigated internally by the Judiciary, and can have consequences for those responsible. The Judiciary, certainly in more recent times, takes complaints against judicial officers very seriously, and seeks to ensure that any concerns the public may have are properly addressed.

In 2016, after the then Chief Justice, Geoffrey Ma Tao-li, directed a review of the procedures for handling complaints against judicial officers, the system was overhauled. The new measures adopted included the creation of the Secretariat for Complaints against Judicial Conduct (“SCJC”), a standardized complaints form, a mechanism to facilitate complaint investigation, and the annual publication of statistics indicating the number of complaints found either to be justified or partially justified.

Under the existing procedure, complaints against judicial officers are handled by the Chief Justice and/or the respective court leader. If complaints about judicial conduct are pursuable, the Chief Justice and/or the relevant court leader will investigate the matter once all relevant court proceedings (including appeals) have been completed. If appropriate, the complaint will be reviewed by one or more judges from a higher level of court.

As things stand, the SCJC can only investigate three types of judicial conduct. The first concerns complaints about poor or undesirable attitudes or behavior by a judicial officer in court, including such things as rudeness or unpunctuality. Secondly, there are allegations of improper handling of court proceedings, which includes such things as bias, excessive intervention, inappropriate comments, lack of preparation, or unilateral communication with the parties. Lastly, there is allegedly improper conduct unrelated to court work.

In 2020, there were 5,559 complaints against judicial officers, a huge increase over 2019, when there were only 368. In accordance with the principle of judicial independence, those which concerned judicial decisions alone, of which there 1,028, were not pursuable, and the remedy lay in either appeal or judicial review proceedings to a higher court. There were, however, 125 complaints which concerned judicial conduct alone, and a further 7 involving the way in which the leaders of the respective courts handled the complaints. A further 4,399 complaints concerned both judicial decisions and judicial conduct, but these, unless frivolous, could only be processed once any proceedings in the higher courts were concluded.

Many of the recent complaints have arisen out of protest-related cases, with one side or another being unhappy with the outcome. There has, moreover, been a surge in duplicated complaints against judicial officers in relation to particular court decisions, accounting for almost 99 per cent of the total in 2020. Indeed, on July 13 2020, the Judiciary announced that it had “recently been receiving a large number of complaints against the same judge or judges in relation to various judicial decisions and court cases, with such complaints being of an identical or similar nature”. As a result, it was decided that the SCJC would “post the gist of, and response to, these complaints on its website, instead of replying to each complaint individually”.

In October 2020, Ma endorsed additional transparency measures, designed to enhance public understanding about court decisions, and to allay concerns about judicial conduct. In consequence, summaries of selected judgments in both district and magistrates court cases are now prepared in cases which might attract great public attention, as in some of the protest-related prosecutions, so this was very much a proactive measure. These summaries are then uploaded onto the Judiciary website, so that anybody interested in a case can acquire a proper understanding of it, without having to rely on newspaper reports, which are not always accurate.

Upon taking office, the incoming Chief Justice, Andrew Cheung Kui-nung, announced, on January 11, that the existing complaints mechanism, last reviewed by the Judiciary in 2016, would again be reviewed. This, he explained, was “with a view to further enhancing its transparency and accountability”. This, however, was subject to the “overriding consideration that there can be no undermining of judicial independence”.

As part of its review, the Judiciary indicated that the investigation of complaints should be conducted by judges only. The complaint handling mechanism should also not place an undue burden on judges, whose main duty is to adjudicate cases. Any frivolous or vexatious complaints should be summarily disposed of, in an efficient and effective way. Complaints of a criminal nature were for the police, not the Judiciary, while complaints of serious misconduct would be handled in accordance either with the Basic Law, which provides for the removal of judges (Art.89), or the Judicial Officers (Tenure of Office) Ordinance, which concerns disciplinary procedures.

On May 6, the Judiciary submitted a paper to the Legislative Council which indicated that its review is complete, and that the complaints mechanism will be reformed in the third quarter of this year. A two-tier structure is envisaged for handling pursuable complaints against judicial conduct, the purpose of which is to enhance “the accountability and the transparency of the mechanism”. If the complaint is serious, complex or of wide public concern, then, in the first stage of the process, a panel of judges will be formed to investigate it and make recommendations for its resolution, aided by the leaders of the relevant courts.

The panel will then submit its recommendations to an advisory committee, the mechanism’s second tier, which will be chaired by the Chief Justice and will comprise both judges and, for the first time, members of the community. The advisory committee will review the panel’s investigation reports, and provide advice to the Chief Justice on the way forward. It will then be for the Chief Justice to take a final decision on the complaint. Other things being equal, the result of the investigation and the reasons will be posted on the Judiciary website for public scrutiny.

As to membership of the advisory committee, the paper indicates that members will need to be people with “profound expertise and experience in professional, community or public services”. In other words, they will be individuals of real substance with proven track records, and not the sort who might be overawed at deliberating with senior judges. Although the exact membership of the committee has yet to be revealed, it is likely that the judges will be in a majority, perhaps 3-2, and that the members of the public will come from the professions, the business world, and academia, although lawyers will probably be ineligible.

The functions of the advisory committee will be threefold. Apart from advising on the reports of the panel of judges, it will also be required to identify problems in the court practices and procedures which caused, or might have caused the complaints to arise, and to recommend improvements. If, moreover, it sees ways in which the complaint handling mechanism itself can be improved, it is mandated to formulate recommendations accordingly.

These proposals are clearly a positive development, and they show the Judiciary’s determination to go the extra mile, to modernize its operations, and to move with the times. The investigative process will be conducted by senior judges with wide experience, who can be trusted to formulate wise recommendations, which will likely be accepted. The involvement of outsiders at the advisory stage will introduce an independent element that is currently lacking, and will help to dispel any impression that the Judiciary always looks after its own. While protecting the independence of the Judiciary, the new arrangements will increase public confidence in the complaints mechanism, and this can only be beneficial for the legal system as a whole.

The author is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

(Source: Orange News)

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