Opinion | Judge selection: Hong Kong an exemplar for the US

By Grenville Cross

In 2023, the judiciary welcomed three new judicial officers into its ranks. On Jan 10, it announced that, on the recommendation of the Judicial Officers Recommendation Commission (JORC), Kestrel Lam Tsz-hong, a barrister, had been appointed a permanent magistrate by the chief executive. Then, on Feb 24, an identical announcement was made regarding Vienne Luk Wai-nga, a senior government counsel. Thereafter, on April 3, it was announced that Australia's Patrick Anthony Keane would, on JORC's recommendation (and with Legislative Council endorsement, as the Basic Law requires), assume an appointment as a non-permanent judge of the Hong Kong Court of Final Appeal.

Although the public knows little about how JORC operates, its contribution to the successful operation of the legal system is huge. Under the Basic Law (Art.88), judges are appointed by the chief executive "on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors". Created in 1997, JORC is the independent body envisaged by the Basic Law, and it is chaired by the chief justice. Its other members include the secretary for justice, two judges, two lawyers, and three persons unconnected to legal practice.

JORC, moreover, only selects the very best candidates, and the Basic Law stipulates that judicial officers are "chosen on the basis of their judicial and professional qualities" (Art.92). If they are local lawyers, like Lam and Luk, they will have established a sound reputation in legal circles. If chosen from another common law jurisdiction, they will enjoy impeccable credentials there, as with Keane, who not only served on the High Court of Australia but was also chief justice of its Federal Court.

Upon appointment, all judicial officers are required to take the judicial oath, by which they undertake to "safeguard the law and administer justice without fear or favor, self-interest or deceit". When trying cases, they are expected to discharge only judicial functions, to adjudicate objectively, and to eschew politics. If they ever allowed their judgments to be influenced by non-legal considerations, or became personally involved in public issues, their credibility would suffer.

Since 1997, all three of the city's chief justices have upheld these principles, and the legal system has benefited accordingly. On Jan 6, 2021, for example, the then-chief justice, Geoffrey Ma Tao-li, explained that "judges are required to be completely apolitical in the discharge of their duties", such being "a constitutional imperative". Provided cases were dealt with strictly according to the law, without the intrusion of politics, there could be "no question of bias". Any appearance of bias must always be avoided, and, in 2019, for example, when a High Court judge was found to have signed a petition protesting against the government's extradition bill, he was reprimanded by Ma, and barred from trying any cases connected with issues arising from the petition he signed.

It would, of course, be very strange indeed if judges did not have their own private views on the issues of the day, but these cannot be placed in the public domain. The parties must feel confident their cases are being resolved on the basis of the evidence presented and the applicable law. Everybody must be treated equally, and no party should ever be left with a feeling that the issues requiring resolution have been prejudged.

Thus, on Jan 16, 2023, the chief justice, Andrew Cheung Kui-nung, emphasized that, in administering the law, the judges' "personal views and preferences do not enter the equation", given that their judicial oath requires them "to apply the law faithfully". The rule of law, he said, was dependent on the judiciary, and the judges could only succeed in upholding it if they were "independent, impartial and effective".

These considerations are also regarded as vital in most other common law jurisdictions, including Australia, Canada, Ireland, New Zealand and the United Kingdom. It is, however, a different story in the United States, notwithstanding its incessant claims of "exceptionalism". Its judicial system, far from being independent and impartial, is highly politicized and money-dominated, as Wisconsin, one of the 14 states to directly elect its Supreme Court justices, has just demonstrated.

On April 4, 2023, it was announced that a liberal judge, Janet Protasiewicz, had defeated a conservative judge, Dan Kelly, in the election for a seat on Wisconsin's Supreme Court. Her victory was significant, as it will break the grip of the conservative majority, which has controlled the court for 15 years. In order to win the election, however, Protasiewicz was required, like Kelly, to behave not as a judge but as a politician, to accept money from vested interests, and to identify with particular causes.

In March, for example, she told The Guardian that the future of democracy was "at stake", and this prompted her to run. She said, "All the issues that we care about are going to come in front of this court," and she made no secret of her support for abortion rights, saying she "believes in women's freedom to make their own decisions when it comes to abortion". Although the state ban on abortion is expected to be considered by the state Supreme Court later this year, she has, in the eyes of many, already prejudged the issue. She also declared that the state's current legislative maps are "rigged", such being another hot-button issue upon which she may also be required to adjudicate.

It is, therefore, hard to see how Protasiewicz can possibly be seen to adjudicate fairly upon these issues, and those on the other side of the argument will naturally assume they do not stand a chance in her court. If she does not, because of her earlier pronouncements, recuse herself, a sense of grievance will likely result.

What, however, was perhaps most shocking of all was the role played by big money in the election of a judicial officer. The contest, according to WisPolitics, broke campaign finance records for state judicial elections, with over $45 million being pumped into it. By comparison, only $10 million was involved in Wisconsin's last Supreme Court race, in 2020. Whereas Protasiewicz raised almost $9 million from the Democratic Party alone, her opponent received pledges worth over $6 million for pro-Kelly advertisements (and the anti-abortion group, Women Speak Out Pac, gave him over $1 million).

It is, of course, trite that whoever pays the piper calls the tune, and the Democratic Party, having invested so heavily in her campaign, may now expect Protasiewicz to deliver for them in her judgments. In 2020, for example, the Wisconsin Supreme Court, by one vote, rejected an attempt by the then-president, Donald Trump, to overturn the results of the presidential election, and, if there is a similar challenge in 2024, the Democratic Party will be relying on Protasiewicz to do right by it. Whenever she rules on controversial issues, such as abortion, election laws and voting rights, the loser may feel the hearing was unfair, and this undermines the rule of law.

This, however, is the price that has to be paid when judges become politicized. If, to get a position, they are obliged to take cash from political parties and campaign groups, and to publicly pronounce upon controversial issues, their standing is inevitably compromised.

This is why, in the United Nations Basic Principles on the Independence of the Judiciary (1985), it is stated that "the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law," and this is very difficult if a judge is hostage to outside interests. While Hong Kong's judges adhere to the UN's Basic Principles, there are clearly problems for their counterparts in the US, at least if Wisconsin is anything to go by.

When, therefore, the World Justice Project issued its Rule of Law Index 2022, on Oct 26, 2022, it was no surprise that Hong Kong was ranked 22nd out of the 140 countries and jurisdictions surveyed, ahead, for example, of the US and many European Union countries. It was, however, surprising that, despite its judicial failings, the US still managed to secure 26th place.

Although the way in which the political parties, by using the US Senate (which must approve appointments), stack the US Supreme Court with judges of their persuasion, is notorious, the latest events in Wisconsin point to a similar malaise in the state courts, where over 90 percent of legal cases are heard. If so, a significant downgrade will be unavoidable once the Rule of Law Index 2023 is published.

As Geoffrey Ma has pointed out, "confidence in a legal system of any given jurisdiction is essential," and trust will always be in short supply when judges campaign like politicians and take cash from interest groups. Although the US has a common law system, its judicial mechanisms are deeply flawed, and lag way behind those of other jurisdictions in terms of independence, impartiality and fairness.

If, therefore, the US truly aspires to "exceptionalism", it should improve its judicial selection process, and what better way of achieving this than by emulating the procedures so successfully deployed by JORC in Hong Kong.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The article was first published in China Daily.