By David Tang
Judges in Hong Kong and other advanced jurisdictions decide their cases the way they decide their cases. They do not need to consult the “big brother” in private before making their decision. Nor do they need to worry about losing their rice bowl if the government is not happy about it.
Why? Because judges are appointed for life and their salaries are protected. They can only be impeached by the legislature or another independent body for misconduct.
Once judges have made their decision, the government follows suit. Take a look of the anti-mask law. For weeks, police have been ferociously enforcing the law. But once the judges in the first instance held the law unconstitutional, police had no choice but to yield. The force yielded despite the fact its officers are armed with batons and guns, whilst judges are armed only with wigs and gowns.
This is the judicial independence that Hong Kong inherited from its former coloniser the United Kingdom. But how did the UK achieve judicial independence in the first place? Was it always there? Did it come into being automatically?
No. In human history, only a tiny portion of people in a short amount of time had or currently have the luxury of judicial independence.
At around the start of the 17th century, judges in England were no different from any other officials. They could be hired or fired at his Majesty’s pleasure. No reason was necessary. Equipped with such power, monarchs could dismiss judges who happened to have made a decision that the crown considered to be “wrong.” And the monarchs did not have to do it every time. All they had to do was do it once a while and other judges, who were not ready to give up their rice bowls, would learn to be “smart” soon enough.
The most famous example is Sir Edward Coke, one of the most iconic figures in the history of common law. In around 1616, King James I wanted to have some sway in cases related to the crown. But Sir Edward, who was then the chief justice of the King’s Bench, refused. He was then fired.
But sometimes, English monarchs chose not to take any litigation risk at all. They would “consult” judges about the legality of what they wanted to do before cases even went to the court. Unwilling to be another Edward Coke, many judges would simply say yes to the monarch regardless.
How did judicial independence evolve in England? Was it a result of people’s “peaceful and rational expression of their demands”?
After the 1620s, the relationship between English monarchs and parliament became increasingly strained. Their differences in duties and nature were wide-ranging: the scope of the royal prerogative, freedom of religion and taxes, as well as judicial independence. Tensions finally reached a point where civil war broke out in the 1640s.
In 1642, during the course of the conflicts, King Charles I did orally promise not to fire judges at will. He also increased their salaries in 1645. But subsequent monarchs changed their minds. Eventually, in the wake of another series of armed conflicts in around 1688, which is now known as the Glorious Revolution, the Act of Settlement 1701 was finally passed into law.
The Act expressly stipulates: “[…] judges commissions be made quamdiu se bene gesserint [during good behaviour], and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.”
And that laid the foundation for Western judicial independence. Section 2 of Article III of the United States Constitution 1789 and Article 89 of the Hong Kong Basic Law are all modelled on the above text.
Did parliamentarians fight for judicial independence within the bounds of the law of the time? Well, I am no legal expert of English laws in the 17th century, but judging from the fact that parliamentarians chopped off the head of King Charles I in 1649, it seems safe to conclude that they did not. Royalists at the time would be technically correct to call the parliamentarians “rioters.”
Don’t get me wrong. I am not suggesting that you can do whatever you want just because you think you have a noble cause. Absolutely not. But what is legally and morally wrong, my friends, can be two different things.
The motto of Georgetown Law, my mother school, reads: “Law is but a means, justice is the end.” Different people may have different visions of what “justice” is. Some may be more liberal and others more conservative. Either way, I respect their views.
But, please, do not jump to conclusions too fast or bind yourself by the letters of the law only. As history keeps telling us, the world we are living in seems a little bit more complicated than that.
David Tang is a barrister in Hong Kong.