Judicial Independence and Separation of Powers in Hong Kong
Posted on September 10, 2020 — 3 Minutes Read
A mentor once told me that philosophy is to be lived, and that philosophical questions are questions about the way one lives, instead of academic pursuits that some believe, for otherwise they are nothing more than intellectual games. This view is in line with the thought and writing of Aristotle, one of the most influential ancient Greek philosophers, who proposes that the highest human good is eudaimonia (living well) and that it is to be attained by a life-long journey of practicing and exercising aretê (virtue or excellence) in accordance with logos (reason or discourse), that sadly certain philosophical tradition seems to have forgotten since, and constraints the pondering instead to polishing instruments with no end in sight. In the Nicomachean Ethics, Aristotle articulates this view of a life well lived by practicing virtue with respect to reason, and in doing do, he distinguishes two forms of means to an end, that despite being first identified more than two thousands years ago, and further explicated in the exegesis by the 20th-century New Zealand classical scholar, Leonard Hugh Graham Greenwood, most still have difficulty parting the two.
Means, Aristotle reasons, may be of either a constitutive or a determinative character of its end. In which case it is in the form of an internal or constitutive means to its end, with a logical dependency between the two, that a decision on the end is a decision on the means. Case in point – if the courts of Hong Kong are to exercise judicial power independently, free from any interference (Basic Law Chapter IV Section 4 Article 85), and if that is unattainable with a judiciary, ’led’, or in effect, intruded by the executive branch and the Central People’s Government of the People’s Republic of China behind it; then demanding the courts in Hong Kong to exercise independent judicial power mandates a judicial institution separated from the other branches of the government, protected against intimidation, and subject to no other supreme authority. Some have mistaken the discussion to be whether Hong Kong inherits the separation of powers from its colonial time, which is next to impossible since the Westminster system in the United Kingdom is famous for its fusion of power between the executive and the legislature; or whether the separation of powers was grounded in the Basic Law, which is in dissent with the one-party political system in mainland China to start with, and as such the Basic Law has no mention of it; it is instead about what would allow for the courts in Hong Kong to exercise independent judicial power, which is, as history has shown, a foundation for the rule of law. This is the reason that the United Kingdom parliament established, among other things, tenure for judges by the Act of Settlement in 1701, in a time where succession to the Crown was in turmoil and the judges were under pressure from the monarch to make rulings in their favour or else faced removal. Time and again, history has shown that it is impossible for the judiciary to exercise independent judicial power with it being subject to the a supreme authority, or as in the case in Hong Kong, the Chinese Communist Party-led executive branch, which sadly is the root of all the problems in Hong Kong right now.