Pigeons face cat thanks to secret judges

The independence of the judiciary from government interference has always been considered a key reason why Hong Kong has prospered under one country, two systems, as defined in the Basic Law and which is guaranteed to prevail until June 2047.

That is why any real, perceived or even imaginary threat to the integrity of the judiciary inevitably attracts huge attention and sets alarm bells ringing.

Those bells have now been set in motion for an unprecedented reason.

Reuters news agency claims three "senior" judges have told its reporter that the judiciary is "fighting for its survival" because its independence is under threat.

Reuters is, of course, a respectable news agency, headquartered in London, but the problem with its report is that the three judges have chosen to remain anonymous.

It means there is no way to verify the story. True or false, it has certainly thrown the cat among the pigeons or, as the Chinese say, poured oil on the fire.

The allegations involve two key issues.

The first concerns how Beijing would like the judiciary to deal with the violent protesters who almost brought Hong Kong's economy to a standstill last year.

The lives and livelihoods of peaceful, law-abiding citizens were severely disrupted for some seven months.

Thousands were forced into bankruptcy because of the antics of violent mobs.

The courageous police force was subjected to the most vile and scandalous abuse as well as physical and sometimes life-threatening danger.

The second concerns the allegation Beijing wishes to interfere and restrict any liberal interpretation by judges on matters relating to constitutional issues.

Those fears, though, ignore the legal reality that the final court of appeal on constitutional issues is in fact the National People's Congress standing committee.

This is clearly stated in the Basic Law.

Before 1997, Hong Kong's ultimate court of appeal was a legal committee of the British House of Lords or, to give it its long-winded full title, the Judicial Committee of the Queen's Privy Council.

In other words, both before and after the handover Hong Kong's final court of appeal has always rested on the country's sovereign power.

Before July 1997 the sovereign power was Britain and after June 1997 the sovereign power became China.

In that sense nothing has changed.

When observers look at the opinions of judges they are necessarily biased by their own perceptions and political inclinations.

Did a judge, when reaching a ruling, have an impartial and independent mind?

One observer may say yes, another no.

I recall the US Supreme Court case in late 2000 of Gore versus Bush, which in effect decided who would be US president.

The court voted five to four, with Republican-supporting judges deciding in favor of the GOP's George W Bush. The independently-minded justices had voted according to their political affiliations!

What I find more interesting and more relevant is how these judges are selected and appointed. US Supreme Court judges must undergo often horrendous cross-examination in full public view, with their private and public lives, not to mention their past sexual activities, exposed.

England also has a very public system. A public committee that is selected "through fair and open competition" and chaired by a non-lawyer selects judges "solely on merit" and "the need to encourage diversity."

In great contrast, selection of our judges is shrouded in much mystery and secrecy.

The responsible body is the Judicial Officers Recommendation Commission, established in 1997 with nine members drawn from the judiciary and the two legal professions, solicitors and barristers.

Whoever is chief justice automatically chairs the commission.

Believe it or not, it is a serious criminal offense for a commission member to disclose any information to the public.

To directly or indirectly attempt to influence the commission is an even worse crime and can result in two years' imprisonment. Is all the secrecy really necessary or healthy?

Cheng Huan is an author and a senior counsel who practices in Hong Kong