A17 | INSIGHT | Dennis Kwok
Overworked justice system at risk
【Dennis Kwok says overworked judges and a backlog of cases are affecting the quality of justice in Hong Kong, prompting the need for additional resources and support for the judiciary】
Hong Kong’s rule of law depends on the quality of our independent judiciary. It is the key contributor to the city’s competitiveness and success under “one country, two systems”. The lack of adequate resources and support, coupled with the recent spate of judicial vacancies and imminent retirements, has threatened the judiciary, access to justice and the state of our rule of law.
The average waiting time for cases, from filing to judicial hearing, has increased significantly in recent years. Civil matters in the Court of Appeal now wait an average of 131 days, an increase of 54 per cent since 2008 and in excess of the judiciary’s 90-day target. The criminal cases list has an average waiting time of 180 days, exceeding the judiciary’s 120-day target and an increase of 61 per cent since 2008. The civil cases list has an average waiting time of 244 days, exceeding the judiciary’s 180-day target and an increase of 68 per cent since 2008.
Increased average waiting times only partially convey the severity of the current predicament. After queuing for a hearing, litigants have to then wait, sometimes for many months, before judgments can be delivered.
Judges’ workloads are now reported to be so daunting that some have to work through their annual leave. Inevitably, the quality of some judicial decisions suffers as a result of overwork. The heavy workload has also partially contributed to difficulties in the retention and recruitment of judges from the private sector.
Nearly half of the judges on the Court of Final Appeal, Court of Appeal and Court of First Instance are aged over 60 and will reach statutory retirement age within the next five years.
The judiciary administrator, which is in charge of requesting funds on behalf of the judiciary from the government budget, has to be ever more responsive to the current difficulties and needs. From our perspective in the Legislative Council, the financial resources sought by the judiciary administrator in recent years have not kept pace with the needs of Hong Kong’s courts and tribunals.
Substantial additional funding is necessary to maintain the consistent provision of services proportionate to ever-increasing caseloads.
As in other jurisdictions, judges are key to the operation of the judiciary and should play a leading role in its governance and financing, including the annual budgeting process.
A judges’ council, drawn from and broadly representative of the judiciary – similar to that in Britain – should be established to guide and direct the judiciary administrator. A standing committee on judicial support and welfare can be established, consulting judges on their workload and addressing the balance between administrative and official duties, and their work in hearing and deciding cases.
Additional capital investment can be directed into expanding and improving the current court facilities to bring them in line with the 21st century. Given that most judges now have extended working hours outside of their court sittings, they should be provided with adequate time to write their judgments, and something as minor as after-hours secretarial support must not be overlooked.
More funds should be allocated to hasten the implementation of the judiciary’s information technology strategy plan, which is taking far too long to put into practice. Introducing electronic filing will shorten case waiting times by allowing judges and court personnel to access, manage and review court documents more efficiently while at the same time reducing costs for litigants.
The judiciary should look into expanding its judicial assistants scheme, allowing more young and talented lawyers to aid in, and gain experience from, the judicial process by working directly under senior judges. Properly trained judicial clerks should be enlisted to provide all-round support to judges on an individual basis.
Magistrates must be provided with induction and continued vocational training, to increase their efficiency, improve their judicial skills and temperament and, in the long run, help develop the junior ranks to fill the pool of talent for higher judicial appointments.
We need to immediately consider increasing the total number of sitting judges, whether by filling current vacancies or by creating new permanent positions on the bench.
Judges are the ultimate arbiters of the rule of law in Hong Kong, and their importance and prestige should be appropriately reflected in Hong Kong’s official order of precedence. Ultimately, judges’ compensation must be increased to attract commensurate legal talent.
Our independent judiciary is crucial for Hong Kong. Overworked judges and a backlog of cases have a direct impact on the quality of justice, and urgent steps must be taken to prevent damage to our rule of law.