“司法独立”观念深入人心，但到底什麼是司法独立，其实并未得到準确的理解，乃至於成为某些司法机构人员迴避问责、拒绝改革的藉口。司法独立是指判案不受干涉，绝不意味着司法机构可以拒绝接受监察、自把自为。

　　作为一个法律概念，司法独立有其严格的内涵。但在香港，长期以来被别有用心的政客渲染成“绝对独立”。彷彿任何来自於司法机构以外的权力介入，都是“邪恶”、不可接受的；似乎法庭可以凌驾於一切外来权力，可以自行决定一切。但这是事实吗？

　　基本法是香港的根本大法，司法独立主要体现在基本法第八十五条的规定中：“香港特别行政区法院独立进行审判，不受任何干涉，司法人员履行审判职责的行为不受法律追究。”这就是说，司法独立就是指法官独立审判案件，不受任何个人或机构的干涉，司法人员的履职行为不受法律追究。事实上，为了维护香港的司法独立，基本法规定了众多保障措施。

　　但基本法授权之下的司法独立，绝不意味着特区司法机构可以拒绝来自其他方面的合法制约、将自己变成一个“独立王国”。特区司法机构必须接受严格的规限。最简单的例子，法官的任命权属於行政长官就是一力证，更何况，终审法院及高等法院法官的任命，还必须报全国人大常委会备案。而儘管基本法赋予了香港终审权，但仍只是一个地方机构，它的案件管辖範围和审理案件时解释基本法的权力都由基本法作出明确限定。

　　事实上，全世界没有一个司法机构可以做到完全“独立”於行政部门，更不可能不依照最高权力机关授权行事。仅以监察法官而言，同为普通法管辖区，加拿大设有“司法理事会”，英国设有“司法通讯部”，而美国纽约州所设的“司法操行委员会”，更明确规定必须包括最少两名业外人士。这些都是在“监督法官”，按香港揽炒派的逻辑，这些国家还有司法独立吗？法治是否已沦丧？

　　任何权力都有一个界线，基本法赋予特区法庭独立的审判权，并没有赋予其凌驾一切的权力。法官也是人，是人就可能犯错，很难想像在一个如此重要的机构，监督机制竟然长期缺位，甚至被刻意醜化、污名化。然而，当公众对司法机构的质疑持续增强，而司法机构又长期以司法独立为名“黑箱作业”、拒绝透明化，司法独立又和“司法独裁”有何区别？

　　推进司法改革，完善监察机制，绝不是要破坏司法制度，恰恰相反，是要针对司法机构在缺乏监督下的司法滥权，维护真正的司法独立、维护公平公正公开的法治精神！

　　The concept of "judicial independence" is deeply rooted in people's minds, but what on earth judicial independence is meant, as a matter of fact, is not comprehended accurately. So much so that the idea is used by some members of the Judiciary as a pretext to evade accountability and to reject calls for reform. The meaning of judicial independence is that the courts of law are free from any interference in adjudicating cases. It is by no means meant that the judicial institution can resist supervision and act as it thinks fit.

　　As a legal concept, judicial independence has its strict meaning. In Hong Kong, however, for a long period of time it has been blown up by politicians with ulterior motives to become "absolute independence", as if any intervention by powers outside the Judiciary was "evil" and unacceptable, as if the courts could place itself above all outside powers and determine everything on its own. But is this really the truth?

The Basic Law is the fundamental law of Hong Kong. Judicial independence is mainly embodied in the stipulation of Article 85: "The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions."

　　Nevertheless, the judicial independence authorised by the Basic Law is by no means meant that the Judiciary of the SAR could reject lawful restraints from other institutions and turn itself into an "independent kingdom". The Judiciary of the SAR must be subject to strict regulations. Taking a simplest example, the practice that the power to appoint judges is vested in the Chief Executive gives strong evidence in this regard, not to mention that the appointment [or removal] of judges of the Court of Final Appeal and the Chief Judge of the High Court must be reported to the Standing Committee of the National People's Congress (NPC) for the record.　　Although the Basic Law grants [the Judiciary of] Hong Kong the power of final adjudication, it is still a local institution and its jurisdiction and its power to interpret the Basic Law during adjudicating cases are both unambiguously stipulated by the Basic Law.

　　As a matter of fact, there is no judicial institution in the world which can be completely "independent" of the executive branch, not to mention that it has to operate in accordance with what it is authorised by the highest organ of power. Just to mention the supervision of judges, among other common law jurisdictions [like Hong Kong], Canada has the Canadian Judicial Council (CJC), the United Kingdom the Judicial Correspondence Unit (JCU), and New York State of the United States the Commission on Judicial Conduct (CJC) which is even specifically regulated to have to include at least two members of the public. These organisations are all tasked with "supervising judges". Now following the logic of those Hongkongers who make trouble with the intention of mutual destruction (Laam Caau), is there judicial independence in these countries?　　And has the rule of law already perished in these places?

　　Any power has its boundaries. The Basic Law grants courts in the SAR the power to exercise judicial power independently, but not the power to lord it over all others. Judges are human, and human beings do possibly make mistakes. It is hard to imagine that in such an important institution, a supervision mechanism could be lacking for such a long period of time and even deliberately uglified and stigmatised. However, when the pubic increasingly casts doubt on the Judiciary but the Judiciary still persistently insists on "black-box operation" in the name of judicial independence and refuses to operate in a more transparent manner, then is there any difference between judicial independence and "judicial dictatorship"?　　

　　Promoting judicial reform and improving a supervision mechanism are by no means to put the judicial system in jeopardy. On the contrary, these are aimed at the abuse of judicial power in the Judiciary that is in lack of supervision, so as to safeguard genuine judicial independence and safeguard the spirits of the rule of law – fairness, justice and openness!

　　28 September 2020

　　WORDS AND USAGE

　　•See/think fit (to do sth) (idiom) - To consider (doing something) appropriate or desirable, especially when others do not agree with you.

　　（（自己）认为合适）

　　Examples:

　　1.The court will deal with the matter as it thinks fit.　　

　　2.She can spend her money as she sees fit.

　　•Blow sth up (phrasal verb) - To make something seem more important, better, worse, etc. than it really is; to exaggerate something or focus unnecessary attention on something.　　

（渲染，夸张）

　　Examples:

　　1.Newspapers blew up the scandal.　　

　　1.The whole affair was blown up out of all proportion.

　　•Be subject to (sth) (idiom) - To be guided, controlled, or ruled by something.（受…的支配，服从…）

　　Examples:

　　1.The sale of the property is subject to approval by the city council.　　

　　2.Of course, all of our travel plans will be subject to the weather—if we get nothing but rain, we'll be spending the vacation indoors.

　　•Vest sth in sb/sth (phrasal verb) - To grant sole power or control over something to someone or some group.

　　（赋予…专项权力或权利）

　　Examples:

　　1.The power to grant pardons is vested in the president alone.　　

　　2.Copyright is vested in the author for 50 years.

　　•Lord it over sb (idiom) - To act in a domineering or superior manner toward someone.（凌驾他人）

　　Examples:

　　1.Gone are the days when a big nation could lord it over small ones.

　　2.He got the only A in the class and was lording it over his classmates.