The following is issued on behalf of the Judiciary:
The Chief Justice has put forward to the Chief Executive today (April 23) the Judiciary's proposal that the recommendations and views contained in Sir Anthony Mason's Consultancy Report should be adopted as the appropriate system for the determination of judicial remuneration in Hong Kong. These recommendations and views are summarized in the attachment.
The Chief Justice said, "The Judiciary's proposal is not concerned with actual levels and amounts of remuneration but deals with the appropriate system for the determination of judicial remuneration. The Judiciary's proposal is based on the principle of judicial independence. It takes into account the experience of and is consistent with the widely accepted position in numerous common law jurisdictions."
"In May 2002 and subsequently, the Judiciary publicly stated that the Judiciary's proposal would be made to the Administration in early 2003 and the Administration has recently inquired when it will be done. The Judiciary's proposal is accordingly submitted at this time. I of course fully understand that at the present time, there are many pressing matters of the greatest concern to the community requiring the Administration's urgent attention," continued the Chief Justice.
The Chief Justice also said, "When the Administration at an appropriate time in due course considers the Judiciary's proposal, I am confident that it will give it the most careful consideration, since an appropriate system for the determination of judicial remuneration is of course fundamental to the maintenance of judicial independence. On behalf of the Judiciary, I would urge the Administration to accept the Judiciary's proposal when it is considered."
The Judiciary noted that as has been publicly announced, the Administration will be proposing legislation to reduce civil service pay back to the levels as at 1 July 1997.
The Chief Justice said, "Before the Administration makes any decision on the Judiciary's proposal (which includes statutory prohibition of reduction in judicial remuneration in line with numerous jurisdictions), it would be inappropriate for the Administration to evade the issue by further cutting the Judiciary's budget by an amount equivalent to the amount involved if judicial remuneration were reduced back to the levels as at 1 July 1997. Further, assuming the Administration in due course accepts the Judiciary's proposal, it would also be inappropriate for the Administration to circumvent the statutory prohibition by such a further cut in the Judiciary's budget."
"It must be recognized that a further cut in the Judiciary's budget by such an amount would adversely affect the proper functioning of the courts to a serious extent, bearing in mind that the Judiciary is already facing a substantial reduction in its budget in the coming years in line with the rest of the public sector."
In May 2002, the Judiciary commissioned Sir Anthony Mason to undertake a Consultancy Study with a view to recommending the appropriate system for the determination of judicial remuneration in Hong Kong.
Following the completion of the Consultancy Report in February 2003, the Chief Justice established a Working Party comprising 15 judges and judicial officers (collectively "judges") from all levels of court to advise and for that purpose to consult all judges.
On the basis of the Working Party's advice, which was based on the judges' overwhelming support, the Chief Justice has put forward to the Administration the Judiciary's proposal.
The Chief Justice has also assured the Chief Executive that the Judiciary is fully conscious of the budgetary difficulties facing Hong Kong.
The Chief Justice said, "The Judiciary will do its best to cope with the challenging problems posed by the substantial reduction in its budget in the coming years. As I have stated publicly, the quality of justice must not be compromised."
Summary of the recommendations and views contained in the Consultancy Report (Chapter 6)
(1) Recommendation 1: Legislation should be enacted prohibiting absolutely any reduction in judicial remuneration.
Constitutional or legislative prohibition of reduction is an essential element of judicial independence. The prohibition is absolute in Australia, New Zealand, Singapore, England and Wales and the United States of America. In addition, other major jurisdictions (with a common law tradition or elements) which have an absolute prohibition include India, Ireland, Malaysia, the Philippines and South Africa. The presence of an absolute prohibition in all such major jurisdictions means that it is a widely accepted safeguard for the protection of judicial independence. Its rationale is that the principle of judicial independence is so fundamental that any risk of its jeopardy must be avoided.
The case for it is stronger in Hong Kong. In Hong Kong, retired judges at District Court level and above are prohibited from returning to private practice and are therefore more dependent on their remuneration than judges in jurisdictions where no such prohibition exists.
There are objections to any qualified prohibition such as one providing for agreement by a majority of judges of a relevant court; or one which provides for a waiver by the judges of a prohibition against reduction. The principal objection is that this would generate disagreement among the judges on an extremely divisive issue. Cohesion and morale, which are vital elements in a well-functioning judiciary, would be set at risk by differences and disputes over the issue. The issue would also create or aggravate tension between the Executive and the Judiciary and would politicise the Judiciary.
(2) Recommendation 2: Provision should be made by Ordinance for a standing appropriation to meet the payment of judicial remuneration.
The provision of such a continuing security for the payment of remuneration is a necessary element in safeguarding judicial independence. Its absence is a major weakness.
(3) Recommendation 3: Judicial remuneration should be fixed by the Executive after considering recommendations by an independent body.
The Executive will then seek the necessary funding from the Legislature. Such a system would respect (a) judicial independence and (b) the responsibility of the Executive to draw up and introduce budgets for the expenditure of public money and the responsibility of the Legislature to examine and approve budgets and public expenditure. This arrangement is consistent with the Basic Law and builds on traditions already established in Hong Kong.
(4) Recommendation 4: The independent body should be established by statute.
A statutory foundation would strengthen its independent character and would enhance the notion of structural permanence and continuity. And statute would confer appropriate powers and would result in transparent definition of functions and powers.
(5) Recommendation 5: The independent body's role should be confined to judicial remuneration exclusively.
The reasons are: (1) A specialist body would have the skills and experience appropriate to assessing this class of remuneration; (2) Judges are a discrete class and the methodology for assessment necessarily differs from that applicable to others in the public sector; and (3) Factors such as performance bonus pay and productivity bonuses which may be taken into account in fixing public sector remuneration have no place in the assessment of judicial remuneration.
(6) Recommendation 6: The members of the independent body should be appointed by the Executive. The statute should contain provisions relating to membership such as providing for members from the legal profession and for members possessing certain experience and expertise, those ineligible for membership, terms of office and grounds for removal.
A body consisting of 5 members would be sufficient.
(1) The Chairman should be a prominent person of a high reputation, preferably with public sector experience.
(2) There should be a barrister and a solicitor. Their knowledge of court work and conditions in the private sector will be of assistance. As with the Judicial Officers Recommendation Commission, there should be a requirement of consultation with the governing bodies of the Bar and the Law Society on the barrister or solicitor to be appointed.
(3) Of the other two members, preferably one should have accounting experience.
Members should serve for a fixed term of say 2 to 3 years and would be removable during their terms only on specified grounds such as bankruptcy and conviction for a criminal offence. No member should serve concurrently as a member of any body assessing civil service remuneration. The independent body should have a secretariat independent of the Executive and the Judiciary.
The following persons should be ineligible for membership:
(1) Judges and retired judges since to maintain public confidence, any actual or possible conflict of interest or perception of conflict of interest should be avoided.
(2) Persons serving in the Executive since the Executive will be required to consider the recommendations made by the independent body.
(3) Members of the Legislature since they are required to consider funding proposals additional to the standing appropriation.
(7) Recommendation 7: The methodology, that is the factors which should be considered, should be specified in the statute.
In no jurisdiction has a particular formula been specified. The prescription of a formula would be impracticable. The determination of judicial remuneration is not a science. It is ultimately a matter of judgment to be exercised by the independent body after weighing the factors.
In the light of experience in other jurisdictions, the factors to be specified in the statute should be:
(1) the maintenance of judicial independence;
(2) the need to maintain the Judiciary's standing in the community;
(3) recruitment and retention of judges;
(4) changes in workload;
(5) relativities between different judicial offices;
(6) comparisons with public and private sector remuneration;
(7) broad relativities between judicial remuneration and the remuneration of Principal Officials and civil servants;
(8) external economic factors (e.g. wage and consumer price indices);
(9) general economic policy; and
(10) any other matter which the independent body considers relevant.
(8) Recommendation 8: Performance pay and productivity bonuses should not form part of judicial remuneration.
The reasons are: (1) It is inconsistent with judicial independence. Assessment may operate, or be seen to operate, as an inducement to a judge to deal with cases in such a way as to maximize the prospects of earning performance pay. (2) There is the difficulty of measuring judicial performance for the purpose of calculating bonus or productivity remuneration.
Although as with the private sector, performance pay and productivity bonuses are becoming increasingly an element in public sector remuneration in many jurisdictions, apart from Singapore, there is no provision for such an element in other jurisdictions for judicial remuneration. In the United Kingdom and Australia, it has been strongly opposed by the judiciary and rejected recently by the review body in both jurisdictions as inappropriate for the Judiciary.
(9) Recommendation 9: The independent statutory body should adopt a procedure which is transparent and its report containing its recommendations to the Executive should be published.
This is important for the maintenance of public confidence in its work.
End/Wednesday, April 23, 2003