Judicial Independence under the Basic Law?

Abstract

The Basic Law of the Hong Kong Special Administrative Region (the Basic Law) provides that the judiciary must exercise its power independently, free from any interference, that its members enjoy judicial immunity, and that judges be given tenure to ensure their independence. The Basic Law has embodied the doctrine of separation of powers by vesting specific powers in the Executive Government, Legislative Council, and judiciary respectively. It provides that judges be appointed by the Chief Executive on the recommendation of an independent commission, and that only the judiciary may exercise the judicial power of the HKSAR. These provisions were enacted to safeguard judicial independence. However, as regards members of the judiciary other than judges, the Basic Law maintains the previous system of appointment and removal. Under this system, the Chief Justice appoints deputy magistrates and deputy District Court and High Court judges, and the Chief Executive appoints permanent magistrates by warrant and temporary High Court judges as recorders. The power to appoint also includes the power to dismiss or suspend. It is argued that these practices violate the doctrine of judicial independence under the Basic Law, and accordingly should be replaced so as to ensure judicial independence in all judicial appointments.