特區政府的司法機構上周五（7日）向立法會提交文件，建議引入兩層架構，處理涉及性質嚴重、複雜或引起社會廣泛關注的法官及司法人員行為的投訴個案。
今年1月，終審法院首席法官張舉能承諾，會在不削弱司法獨立的前提下檢討法官投訴處理機制。4個月後，司法機構向立法會提交了一份改革文件，表示當局對現有機制的檢討已經完成，並提出了一個兩層機制來應對公眾對司法人員的投訴。
司法獨立不容受損 提升問責及透明度
兩層機制的第一層，由多過一名高等法院級別的法官組成專責小組調查；第二層則由法官及社會人士組成諮詢委員會，審視第一層提交的調查報告並給予意見。擔任該諮詢委員會主席的終審法院首席法官根據委員會意見，就每項投訴作出最終決定。司法機構預期將於今年第三季推行有關的改進措施。
司法機構在有關文件中指出，是次檢討基於數項原則，包括：《基本法》中保障的司法獨立不容受損；就司法決定或根據法規如《法律援助條例》等所作的決定而提出的投訴不會受理；調查僅限由法官進行；處理投訴的機制不應對法官造成過度負擔，因此會循簡易程序處理「瑣屑無聊」及「無理的投訴」；至於涉及嚴重行為失當的投訴，以及涉及刑事性質且看來具實據的投訴，會根據相關法例或交由執法機關處理。
文件又表示，在現行機制下，所有針對法官的投訴均將由終院首席法官或相關法院領導處理。所有相關程序完成後，終院首席法官或相關法院領導會調查個案，並視情況由一名或以上的上級法院法官審閱。為提升機制的問責性及透明度，司法機構擬引入兩層架構，處理涉及性質嚴重、複雜或引起社會廣泛關注的法官及司法人員行為的投訴個案。
周浩鼎：有助提高司法機構透明度
社會輿論對上述司法機制改革內容反應不一；建制派精英支持新機制，反對派則質疑有關建議。
民建聯立法會議員周浩鼎認為，新建議機制有助提高司法機構處理投訴的透明度，有助司法機構維護公信力及鞏固市民的信心。他又強調，新機制下必須維持法治原則，即投訴只能涉及法官及司法人員的行為操守事宜，決不能觸及對案件審訊的裁決結果。
梁家傑：應避免公眾輿論影響裁決
不過，公民黨主席、大律師公會前主席梁家傑接受報章訪問時則回應，新機制只是司法機構面對具強大政治壓力下的「折衷方法」。他建議新設立的諮詢委員會參考大律師公會在進行調查時的做法，由一名資深大律師、一名7年以上年資的大律師，以及一名公眾人士組成委員會，確保公眾人士的數量不會凌駕專業。他又強調，諮詢委員會必須由司法機關主導，以免因為公眾輿論影響日後法官的裁決。
港大法律學院講座教授陳文敏回應傳媒查詢時也表示，在現今政治環境下，他憂慮獲委任諮詢委員會委員的公眾人士數目和背景。他建議委任熟悉法律程序的公眾人士數目應佔諮詢委員會一半以下，否則公眾人士在委員會內會「好有權」，若終院首席法官不接受公眾委員的看法，便需要有很大理由。他又認為，大律師公會和香港律師會應分別各提一名代表入委員會。
總括而言，香港的司法機構採取主動改善處理公眾投訴機制。支持新機制的人士認為，通過引入兩層投訴機制，以及加強公眾參與，可以改善司法機構的問責制和透明度；批評新機制的人士則認為，處理投訴諮詢委員會的組成，應維持法律專業人士和專家的數量優勢。支持者和批評者之間的拉鋸戰，現在似乎支持者較有優勢，然而日後如何設計和組成這個兩層機制的諮詢委員會，詳情仍有待觀察。
OPINION-Judicial Reform in Hong Kong
On May 7, the judicial branch of the Hong Kong government submitted a paper to the Legislative Council (LegCo), introducing a mechanism with two layers to handle public complaints about judges and marking a significant step in the reform of the judiciary.
In January 2021, Chief Justice Andrew Cheung promised to review the existing mechanism of dealing with complaints about judges. After four months, the judiciary submitted a reform paper to the LegCo, saying that its review of the existing mechanism had been completed. Most importantly, it proposes a two-layer mechanism in coping with public complaints about judicial personnel.
In the first layer, the judicial secretariat receives public complaint and conducts an initial assessment to see whether the complaint concerned should be followed up and investigated. If the complaint is decided to have follow-up action, then a committee composed of more than one High Court judge will investigate the severity and complexity of the complaint that led to widespread societal concern. This committee will complete a report and then submit it to the second layer of the mechanism.
The second layer will be composed of a consultative committee in which the report from the first-layer committee will be supervised and discussed. The second layer committee will give advice. The committee will be chaired by the Court of Final Appeal’s chief judge and composed of other judges and the “experienced and knowledgeable” societal elites who are professional and who have community and public service experiences. After the Chief Justice considers the opinion of the consultative committee, he or she will make a final decision and then the judicial secretariat will take follow-up action based on the result of handling the complaint concerned.
The second-layer committee will meet regularly. The Chief Justice, after considering the severity and the degree of societal concern about the complaint, will decide whether the result of handling the complaint will be publicized. If publicized, the report will be uploaded onto the judiciary’s website so that members of the public can have access to it.
All the complaints on the Court of Final Appeal judges, the chief judge of the High Court, the chief judge of the District Court, and the chief magistrate will follow the procedures of the two layers of the mechanism.
For the complaint targeted at the Court of Final Appeal judge or the High Court’s principal judge, the principal judge of the Court of Final Appeal can nominate one or more than one judge at the level of the Court of Final Appeal to deal with the complaint.
The reactions of the society to the content of judicial reform vary. Pro-establishment elites support the reform, while non-establishment elites question it.
LegCo member Holden Chow, who is also a member of the Democratic Alliance for the Betterment and Progress of Hong Kong (DAB), said that the judicial branch adopts a proper attitude toward judicial reform, which can and will help maintain the credibility of the judiciary and consolidate public confidence of the judiciary. Chow stressed that the new mechanism must maintain the principle of the rule of law, meaning that the complaint can only touch on the behavior and conduct of judicial staff members and that it cannot touch upon the verdict and result of the court case (Tai King Pao, May 8, 2021, p. A6). His party and LegCo colleague, Elizabeth Quat, said that the judicial branch should clarify the criteria of regarding public complaint as “trivial” and “unreasonable.” She hopes that the judiciary will move toward another reform, namely considering a committee that would assess the sentencing decisions for the sake of “consolidating Hong Kong’s status as a legal transmission belt.”
However, the former chairman of the Hong Kong Bar Association, barrister Alan Leong Kah-kit, said that judicial reforms were made as a “compromising alternative” because of “tremendous political pressure” (Apple Daily, May 8, 2021, p. A7). He suggested that the composition of the committee should consider the method of investigation of the Bar Association, namely a committee composed of one senior barrister, one barrister with at least seven years of experiences and one member of the public – a set-up that can ensure that the number of the societal member cannot override the profession. Leong also stressed that the consultative committee members should be led by the judicial branch to avoid the influence of public opinion on the decision of court judges in the future.
A professor of law at the University of Hong Kong, Johannes Chan, remarked that there is a worry about the number and background of the appointed societal members under the current political circumstances. He suggested that the number of appointed societal members who are familiar with legal procedures should be less than half of the members of the committee. Otherwise, if the societal members in the committee have “too much power,” there will be a need for strong justifications if the Court of Final Appeal’s principal judge does not accept the views of the societal members. Chan also believed that the Bar Association and the Law Society should each nominate a representative to join the committee.
On May 8, an editorial of Wen Wei Po praised the reform introduced by the judiciary, saying that the reform can change the situation of public criticisms of the judicial staff members investigating themselves without external scrutiny (Wen Wei Po, May 8, 2021, p. A6). According to the patriotic newspaper’s editorial, in the recent years, some judges have been questioned on their decisions which “could not bring about justice.” Moreover, some of their verdicts were “emotional.” The editorial argued that because the judiciary lacked public supervision, it became “an independent kingdom” to some critics and was “lenient” in dealing with violent cases. The judiciary, according to the editorial, should gain public confidence by having public scrutiny so that fairness and justice can be achieved. The editorial contended that injecting public participation in the supervision of the judiciary can “strengthen the scrutiny and accountability” of court judges and judicial personnel, thereby making the judicial branch’s handling of complaints “more transparent” than ever before. Finally, the editorial cited the examples of the US and UK in setting up special committees with public participation to enforce the process of judicial reforms. The reform in Hong Kong, according to Wen Wei Po, can “increase the judiciary’s accountability” on the one hand and “maintain the invaluable asset of Hong Kong’s good rule of law” on the other hand.
Wen Wei Po cited the rising cases of public complaints as a reflection of the need to introduce judicial reforms. The numbers of public complaints were 36 in 2018, 15 in 2019, and 4,531 in 2020. Among the 4,531 cases of complaints in 2020, 4,510 cases were concerned about the improper handling of legal procedures, eight cases touched on the attitude and behavior inside the court, seven cases were about review of the court’s handling of complaints, one case was about improper conduct outside the court, and five cases were about two of the mixed complaints mentioned above.
In conclusion, the Hong Kong judiciary has taken the initiative to improve the mechanism of handling public complaints. Supporters of the reform maintain that it can improve the accountability and transparency of the judiciary through the introduction of the two-layered complaint mechanism and the enhancement of public participation. Critics of the reform have suggested that the composition of the committees handling complaints should maintain the numerical superiority of the legal professionals and experts. It seems that the tug-of-war between supporters and critics is now tipped in favor of the former, but it remains to be seen how the detailed composition of the two-layers committees will be designed and crafted later.
原刊於澳門新聞通訊社（MNA）網站，本社獲作者授權轉載。
