• 風物長宜放眼量|戴啟思

  • 發布日期:2020-12-12 11:00
  • 風物長宜放眼量|戴啟思

 

Judicial Independence-The Long View

Judicial Independence-The Long View

There is much talk about threats to judicial independence now that the National Security Law casts a long shadow over us all. Judicial independence was something taken for granted in the last quarter-century. Not now.

Judicial independence seems precarious now that the new received wisdom is that there is no separation of powers in Hong Kong, and we know that judges are hand-picked by the Chief Executive to handle cases concerning national security. Matters are not improved when hardly a week goes by without attacks on judges for their decisions appear in newsprint.

When issues of constitutional importance arise, it always helps to look at the past and see how we have got here now. By ‘the past’, I do not mean in the last thirty or forty years. I want to look into deep legal history and seeing how common law judges achieved independence from what was an unpromising start.

When the common law took off in England eight hundred years ago, the King and his close advisers dished out justice in a body called the ‘Curia Regis’ or ‘King’s Council’. As the name suggests, the King appointed the councillors. He could remove them at any time. When the Crown had an interest in a case, a judge would almost invariably determine it in a way that secured that interest.

A recognisable court structure started to emerge in the 13th century. The Crown began to appoint judges from the ranks of professional lawyers, but there was still no security of tenure. Judges’ pay was modest compared to today, and the Crown permitted them to supplement their income from the Crown by taking a percentage of court fees and by selling clerical posts. These pay arrangements were, obviously, not calculated to produce impartial judges.

However, by the 14th century, Parliament began flexing its muscles building on Magna Carta in 1215 when powerful barons took the King down a peg or two. It enacted laws telling judges that they should not comply with letters from the King that sought to direct them how to decide a case. The judges themselves invented an ingenious fiction to keep them on straight and narrow. They did this by declaring that ‘the King can do no wrong’.

How did this work to limit the King’s powers?

The King always made his wishes known through documents-writs, orders, decrees etc.- composed by clerks. When a document written on the King’s behalf contained instructions that interfered with justice, judges would ignore it on the basis that the King could never have intended to do such a thing. The offending parts of the document must have been interpolated by a naughty scribe or by someone who had misunderstood the King’s wishes because he, as the sovereign fount of justice, ‘could do no wrong’.

However, Parliament was not always so strong. The 16th and early 17th centuries produced some strong monarchs and Parliament tended not to question the sovereign’s will. Without Parliament to back them up, judges did not raise their heads above the parapets. They were docile, and the King did not have to use his power to dismiss them because they rarely ruled against the Crown.

Things came to a head when King James I and his son, Charles I disturbed this state of affairs by them attempting to extend the powers of the Crown at the expense of Parliament. Charles I even tried to rule without calling a Parliament for over ten years. The result was a civil war which Charles I lost severely, and Parliament won.

The new constitutional settlement that emerged in the 1660s saw the Crown’s powers significantly reduced and Parliament as the new power base. The judges benefited from the change. Some of them had tried to curb the Crown’s prerogative powers in the first two decades of the 17th century. The Crown dismissed the judges or their troubles. Parliament wanted to stop this from happening again.

The solution to the problem of the Crown dismissing judges when they ruled against it was to make judicial appointments for life but with a clause making the appointment conditional on continued good behaviour. Under the Act of Settlement of 1701, a judge could be removed from office only when both Houses of Parliament resolved that he should be removed.

What has this ancient British Act of Parliament to do with Hong Kong in 2020? A lot. The Act of Settlement extended to all British possessions and was a template for colonial constitutional documents. The first judges to come to Hong Kong could not be dismissed from office except on a case that proved the judge had not been of good behaviour.

The 1701 Act has echoes in the Basic Law. Article 89 says that a judge can only be removed from office by the Chief Executive for inability to discharge his or her duties for misbehaviour. The check on the Chief Executive’s power to terminate judicial appointments that prevent someone inventing a case for removal is that the Chief Executive can act only power after a tribunal of senior judges has recommended the judge’s removal.

Limiting the Crown’s power to remove irritating judges is one thing. How do you prevent the Crown from appointing judges who will not be impartial and will be likely to favour Crown interests? The Act of Settlement did not address this issue.

It did not do so because the Crown no longer appointed judges except on the advice of the Government of the day. It was too much of a temptation for successive Prime Ministers not to treat at least some judicial appointments as rewards for political services rendered.

Prime Ministers appointed some judges to the bench straight after they had served many years in the House of Commons. Some judges went to the bench after many years of appearing in court more or less exclusively for the Crown.

Most of these appointments became good judges, but there were many mediocre ones, especially in the first part of the last century.

The solution to the problem of some judicial appointments appearing tainted by political considerations only ended in the UK in 2005. In that year a new law provided that a new body, the Judicial Appointments Commission, would make recommendations for senior judicial posts. The effect of the law is that the Government is constrained to accept or reject proposals, but it cannot appoint a judge without the Commission’s recommendation.

Hong Kong beat the UK to establish a body like the Judicial Appointments Commission. Article 88 of the Basic Law required the establishment of an independent commission to recommend judicial appointments to the Chief Executive. The Legislative Council enacted Judicial Officers Recommendation Ordinance before 1997 and in good time for it to start to do its job under Article 88.

As I hope you can see, it was a long, hard slog to secure judicial independence so that judges should not be at the beck and call of Government. We owe it to ourselves and future generations to make sure that it is not further compromised in these difficult times.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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