Consultation paper on Process of Appointment of Judges


Supplemental Response of the Bar Council of the HK Bar Association
to the Consulation Paper on Process of Appointment of Judges

Supplemental Response of the Bar Council of the Hong Kong
Bar Association to the Consultation Paper on Process of Appointment of

1. The Bar refers to paragraphs 13 and 14 of its paper dated 15 April
2002 submitted to the AJLS Panel. The Bar gave as the majority view that
the SJ or a representative of the DOJ should be a member of JORC broadly
for reasons given for her inclusion as set out in paragraph 3.8 of the
Consultation Paper. We were also of the view that given that the SJ would
become a political appointee, it was more appropriate to have a representative
of DOJ, rather than the SJ herself, as a member of JORC.

2. The Bar has revisited the issue in the light of the details of the
accountability system announced by the Chief Executive since. In this
exercise, the Bar made special reference to Article 88 of the Basic Law.
The Article provides that judges of the HKSAR shall be appointed by the
Chief Executive on the recommendation of an independent commission composed
of local judges, person from the legal profession and eminent persons
from other sectors.

3. Arguably "independent" means being wholly
independent from the executive authorities of the HKSAR. Indeed, one can
regard section 4(1) of the Judicial Officers Recommendation Commission
Ordinance (Cap 92), which bars members of the Legislative Council and
holders of a pensionable office (except judges) from appointment to JORC,
as indicative of the requirements of such independence.

4. Having thus revisited the subject, the Bar concludes
that SJ should not be a member of JORC. A representative chosen amongst
government lawyers, who is not holder of a pensionable office, can represent
views of government lawyers in the DOJ on JORC.

Dated 31 May 2002

Hong Kong Bar Association