In recent years, many Western democracies have witnessed a democratic backlash, marked by the rise of far-right ideologies and populism that glorify strongman leadership and even advocate authoritarian rule. This trend has had significant impacts on human rights, freedoms, and the rule of law. An independent judiciary has inevitably found itself at the forefront of this stormy development. Ironically, the ways in which far-right regimes interfere with judicial independence bear striking resemblance to the tactics used by socialist authoritarian regimes. These tactics can generally be understood in three inter-related categories: direct intervention, indirect interference, and value transformation.

Direct Intervention

Direct intervention refers to the executive government directly meddling in judicial proceedings. The most obvious example is when the executive government explicitly directs the courts to reach a particular outcome in individual cases. However, such blatant interference is rare in modern societies, as it would utterly destroy the judiciary’s image of independence — something even authoritarian regimes wish to preserve to lend legitimacy to their actions.

Instead, governments often express their will through more subtle channels. For instance, officials may, before trial, publicly condemn the defendant as a serious criminal deserving harsh punishment.^[1] In sensitive cases, the government may influence the assignment of trial judges, not by direct orders, but by limiting the pool of trial judges to judges who are perceived to be more sympathetic to the regime.^[2]

Judges who do not deliver the desirable result may be punished, for example, through harsh public criticism by state media. For junior judges who do not have security of tenure, such adverse criticism can jeopardize their career advancement or result in non-renewal of their contracts or deputy appointment. For higher-level judges with lifetime tenure, removal is more difficult and may spark a constitutional crisis. Thus, the regimes may sideline these judges by assigning them to deal with mundane cases or excluding them from hearing sensitive cases, or simply blocking their promotion to the higher court — which will adequately serves the purpose of giving warnings to others.

Governments may also require judges to take vague oaths of patriotism. Once a judge is seen to have “crossed the line,” they may be disciplined or even prosecuted for allegedly violating their oath – the final interpretation of which is usually not vested in the judiciary itself.

Legislation provides another powerful tool of direct interference. Governments can transfer matters that are traditionally handled by courts to political bodies. For example, the right of audience before the court is traditionally a matter within the jurisdiction of the court. The government may transfer the decision of the right of audience in certain types of cases to the government through some approval requirements.^[3] The legislation may also provide that the proof of certain state of affairs, could be established conclusively by a certificate issued by the executive government, which certificate is binding on the courts,^[4] or may simply oust the jurisdiction of the court regarding certain types of executive decisions.

Additionally, the executive government can reverse judicial decisions through legislation. While legislative reversal is acceptable in the common law system, this is predicated on the assumption that the legislature is democratically constituted and genuinely represents the people. If it merely acts as a conduit of the government, or if an extra-judicial body may overturn court decisions by an opaque procedure, that constitutes a direct interference with judicial independence.

Indirect Interference

Indirect interference targets institutions that are originally designed to protect judicial independence. In many common law systems, judicial appointments and promotions are overseen by independent commissions composed mainly of members of the judiciary and the legal professionals. Governments can pack the membership of these bodies by appointing additional lay members who are loyal to the regime, hence diluting the influence of the professionals, or turning them into mere advisory bodies, placing the power to make final decisions in the hands of the executive government.

Some countries pass laws to lower judges’ retirement age, thus forcing incumbent judges to retire. Others expand the number of judges in the top courts to dilute the influence of seasoned judges.^[5] Courts may also face budget cuts or have sensitive cases transferred to extra-judicial bodies, often on the excuse of national security or an involvement of state secrets.^[6]

Changing Judicial Values Regarding Human Rights and the Rule of Law

The most insidious and effective method is to change the judiciary’s values concerning human rights and the rule of law. If judges come to share the regime’s ideology, the government no longer needs to interfere — the courts themselves will legitimize rights violations. As courts will cloak their rulings by legal or technical justifications, the reasoning may not be easily comprehensible to the public, and even to those who are able to criticize the legal reasonings, it is not easy to distinguish between a difference of opinions and an illegitimate shift of fundamental values. This form of interference is therefore the hardest to detect.

Typically, this method is deployed by exploiting some major civil unrest or violent incidents. The Governments may exaggerate the threats to national security. By pursuing selective prosecution of some bad cases, the Government may paint a general picture of wanton violence. Together with the support of continuous propaganda, isolated threats to public order may become a grave risk of survival to the nation.

Judges are part of the community. When the community is fed with daily doses of threats of national security, judges will inevitably be affected by it. As Madam Justice Ruth Ginsburg put it (quoting from constitutional law scholar Paul Freund), judges may not be affected by the climate of the day, but will inevitably be influenced by the weather of the era. Courts may then be more easily persuaded that harsh measures are necessary in turbulent times, and that curbing freedoms — of the person, speech, and assembly — is warranted when national security is at risk.

In such cases it will be common to find such expressions in judicial judgments:

• “Freedom is not absolute.”
• “What is necessary to protect national security involves difficult and sensitive considerations that eminently fall within the expertise of the executive, for which the court must respect and such decisions should not be lightly interfered with.”
• “Local circumstances are unique; precedents from other common law jurisdictions are of little assistance.”

When the regimes repeatedly assert that judges must be patriotic and supportive of the administration, and when some regimes may even require judges to attend ideological training, some judges may begin to internalize the view that any criticism of the government will foster hatred and instability against the regimes and will not be conducive to economic development and prosperity. Consequently, courts will tend to adopt a less exacting threshold in scrutinizing state actions, accepting harsh laws without question, interpreting them more severely than their texts require, and granting government’s requests on minimal justifications — for example, holding closed hearings, excluding juries, or awarding punitive legal costs against unsuccessful applicants who dare to challenge government decisions.

In providing intellectual justifications and rationalizations for restrictions on fundamental rights and freedoms, the courts legitimise a draconian regime and may forget the traditional libertarian values of the common law system. They may overlook that the social chaos that justified such restrictions may have long disappeared, and that these harsh precedents now apply to an ostensibly peaceful society that lives in daily fear, as the line between what is a legal exercise of fundamental rights and what is a criminal seditious act is increasingly blurred.

Epilogue

These tactics, which are not exhaustive, can be adopted singularly, repeatedly or in conjunction with one another. However, whichever be the case, their appearance is a clear warning sign that fundamental values of human rights and the rule of law are seriously endangered. By the time the regimes are to interfere with judicial independence, it is more likely than not that a civil society, a responsive democratic legislature, and fundamental values like personal liberty and free speech have already been heavily circumscribed, if there were still room for any of them at all.

Notes:

[1] For example, Xia Baolong, Director of Hong Kong and Macau Affairs Office of the State Council of the PRC, publicly singled out Jimmy Lai, Benny Tai and Joshua Wong before their trial as extreme rioters and anti-China disrupters who should be severely punished by law: “Senior Officials on HK affairs urges severe punishment for anti-China disrupters Benny Tai, Joshua Wong and Jimmy Lai in speech”, Global Times, 1 Mar 2024: https://www.globaltimes.cn/page/202103/1216880.shtml. Since then, Benny Tai was given 10 years’ imprisonment for conspiracy to subversion in the Primary case; Jimmy Lai’s trial is still ongoing, and Joshua Wong, who is serving the last part of his sentence also in the Primary case, was charged with a new major national security offence that could give him another decade of imprisonment sentence if convicted.

[2] Under the HK National Security Law, cases involving national security can only be tried by a designated judge. The pool of designated judges is appointed by the Chief Executive of the HKSAR. An immediate effect of this designated judge system is the result of undue delay of trials. For example, the trial of the Alliance of Support for Democratic Movement in China was delayed because the trial of Jimmy Lai has substantially overrun. The Alliance case is now set down for trial in November 2025, whereas the various defendants have been detained before trial for about three years by now.

[3] In Jimmy Lai case, Lai intended to instruct Tim Owen KC, a London silk, to represent him in his trial. Owen KC’s application was approved by the High Court, the Court of Appeal and the Court of Final Appeal. The Government then requested the Standing Committee of the National People’s Congress to provide an interpretation to the effect that the court must seek a certificate from the Chief Executive before deciding on such applications. The Chief Executive, upon the advice of the National Security Committee that Owen KC’s admission was not in the interest of national security, denied his admission. The government subsequently amended the Legal Practitioners Ordinance so that the decision of admission of overseas lawyers in national security cases is not determined by the Chief Executive and no longer by the court.

[4] In Kinson Cheung case, the defendant has served two thirds of his sentence but the Commissioner for Correctional Service failed to make any decision on his remission, which is traditionally granted upon good behaviour in prison. He applied for habeas corpus. During the trial the Commissioner produced an opinion of the National Security Committee to the effect that his earlier release was not in the interest of national security. As the opinion is binding on the court, he withdrew his application and was ordered to pay substantial costs to the respondent government despite the certificate of the National Security Committee was produced only after the habeas corpus proceedings were lodged and after the court has indicated an intention to grant bail pending hearing of the habeas corpus proceedings.

[5] In April 2018, the Polish legislature lowered the age of retirement of Supreme Court’s judges from 71 to 65 and this requirement applied to both serving and future judges. The European Union Court of Justice held that this was in violation of the fundamental principle of judicial independence as there was neither compelling nor proportionate justifications for the lowering of retirement age for judges in post: https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-06/cp190081en.pdf.

[6] For example, under the National Security Law, a defendant in Hong Kong could be removed to the Mainland for trial under Mainland Chinese laws under certain conditions. These conditions are determined by the National Security Office without any independent judicial scrutiny that is common in extradition or rendition arrangement, and the decisions of the National Security Office are not subject to judicial review.

About [De Bene Esse]

This Latin phrase can roughly be translated as “for what it’s worth”. In law, this phrase refers to proceedings taken to prevent future loss of evidence by the death or absence of a witness, or evidence admitted on a provisional basis without determining its admissibility. The evidence is allowed to stand for the present, subject to future challenges, by then it will stand or fall according to its intrinsic merit and admissibility. This phrase is borrowed here to suggest that the views expressed in this column are provisional, an alternative view for what they’re worth, subject to challenges or disagreement, for no one can claim a monopoly over truth, whereas rational debates and disagreement form the bedrock of a free society.

▌ [De Bene Esse] About the Author

Professor Johannes Chan is an Honorary Professor of University College London and the former Chair of Public Law, The University of Hong Kong.