「司法獨立」觀念深入人心，但到底什麼是司法獨立，其實並未得到準確的理解，乃至於成為某些司法機構人員迴避問責、拒絕改革的藉口。司法獨立是指判案不受干涉，絕不意味着司法機構可以拒絕接受監察、自把自為。

　　作為一個法律概念，司法獨立有其嚴格的內涵。但在香港，長期以來被別有用心的政客渲染成「絕對獨立」。彷彿任何來自於司法機構以外的權力介入，都是「邪惡」、不可接受的；似乎法庭可以凌駕於一切外來權力，可以自行決定一切。但這是事實嗎？

　　基本法是香港的根本大法，司法獨立主要體現在基本法第八十五條的規定中：「香港特別行政區法院獨立進行審判，不受任何干涉，司法人員履行審判職責的行為不受法律追究。」這就是說，司法獨立就是指法官獨立審判案件，不受任何個人或機構的干涉，司法人員的履職行為不受法律追究。事實上，為了維護香港的司法獨立，基本法規定了眾多保障措施。

　　但基本法授權之下的司法獨立，絕不意味着特區司法機構可以拒絕來自其他方面的合法制約、將自己變成一個「獨立王國」。特區司法機構必須接受嚴格的規限。最簡單的例子，法官的任命權屬於行政長官就是一力證，更何況，終審法院及高等法院法官的任命，還必須報全國人大常委會備案。而儘管基本法賦予了香港終審權，但仍只是一個地方機構，它的案件管轄範圍和審理案件時解釋基本法的權力都由基本法作出明確限定。

　　事實上，全世界沒有一個司法機構可以做到完全「獨立」於行政部門，更不可能不依照最高權力機關授權行事。僅以監察法官而言，同為普通法管轄區，加拿大設有「司法理事會」，英國設有「司法通訊部」，而美國紐約州所設的「司法操行委員會」，更明確規定必須包括最少兩名業外人士。這些都是在「監督法官」，按香港攬炒派的邏輯，這些國家還有司法獨立嗎？法治是否已淪喪？

　　任何權力都有一個界線，基本法賦予特區法庭獨立的審判權，並沒有賦予其凌駕一切的權力。法官也是人，是人就可能犯錯，很難想像在一個如此重要的機構，監督機制竟然長期缺位，甚至被刻意醜化、污名化。然而，當公眾對司法機構的質疑持續增強，而司法機構又長期以司法獨立為名「黑箱作業」、拒絕透明化，司法獨立又和「司法獨裁」有何區別？

　　推進司法改革，完善監察機制，絕不是要破壞司法制度，恰恰相反，是要針對司法機構在缺乏監督下的司法濫權，維護真正的司法獨立、維護公平公正公開的法治精神！

　　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）認為合適）

　　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，誇張）

　　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，服從…）

　　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.

　　（賦予…專項權力或權利）

　　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.（凌駕他人）

　　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.