Since the outbreak of violent protests in 2019, the magistrates’ courts in Hong Kong have faced two difficult years, in which their reputation for speedy administration of justice has declined dramatically. Further adding to their headache was the interruption of normal court hearings caused by the outbreak of COVID-19 in early 2020. The workload of the 66 magistrates is extremely heavy. Beyond our likely contemplation, a reform of the justice of the peace system in Hong Kong after the British model may offer a way out of the problems of the backlog of cases in the courts. Unlike the British model in England and Wales, but in common with the Malaysian and Singaporean models, Hong Kong’s JPs mainly perform non-judicial roles. The British model, on the other hand, empowers JPs to administer criminal or civil justice in minor cases. The following discussion focuses on a review of the historical developments of JPs in major common law jurisdictions.
We start with the British model. In England and Wales, the office of JP dates back to 1195. Their main duty then was to preserve the peace in unruly areas. They were originally known as the “knights of the peace” to aid the sheriff in the enforcement of the law. Later, they were called “keepers of the peace” and the title “JP” was created in 1361. They now play an important role in the administration of justice.
Following the promulgation of the Justices of the Peace Act of 1949, the (UK) lay justices’ courts have also been staffed by barristers acting as full-time court clerks who would advise JPs on matters of law, sentencing and procedures. Nevertheless, lay judges are independent of the clerks. JPs are required to undergo a training course in basic legal principles and in the administrative duties of the magistrates’ court
Unlike the civil law legal systems, the common law system in England and Wales has a low judge-to-population ratio (3.5 professional judges to 100,000 inhabitants). The explanation for the low ratio lies in the additional 30,000 JPs who currently decide nearly 95 percent of criminal cases, as well as handling some family and juvenile matters and processing more serious criminal cases before transfer to the professional judges.
Letting JPs sit on the benches is one of the main characteristics of the magistrates’ courts in England and Wales. There are two distinct types of magistrates’ courts: The lay justices’ courts and the district judge magistrates’ courts. Lay justices’ courts are usually made up of three JPs who lack specific legal qualifications. Following the promulgation of the Justices of the Peace Act of 1949, the lay justices’ courts have also been staffed by barristers acting as full-time court clerks who would advise JPs on matters of law, sentencing and procedures. Nevertheless, lay judges are independent of the clerks. JPs are required to undergo a training course in basic legal principles and in the administrative duties of the magistrates’ court. The Act was a major turning point in professionalizing the role of JPs and in widening the range of summary and minor business conducted in the magistrates’ courts.
The Courts Act 2003 provides the current framework for the composition and appointment of the JPs. They are appointed by the sovereign on the advice of the Lord Chancellor. JPs may be removed by the Lord Chancellor without showing cause. JPs provide their service on a voluntary basis, though they are entitled to claim “loss of earnings” allowance.
At the other end of the spectrum, Singapore’s, Malaysia’s and Hong Kong’s JPs mainly perform non-judicial functions. Early in the colonial history of Hong Kong, JPs played an active role in the administration of justice at the lowest level of the court system. At present, images of visiting JPs in custodial institutions have become an important emblem of their remaining non-judicial functions. Besides visiting custodial institutions, they also administer statutory declarations and serve as members of advisory panels. JPs are appointed by the chief executive, who may appoint any person holding any office in the public service and any other person, provided, in either case, the person is considered to be fit and proper for such appointment: section 3(1)(a) of the Justices of the Peace Ordinance (JPO). The person shall perform such other functions as may be imposed on him from time to time by the chief executive: section 5(3) of the JPO.
It suffices to conclude, as one safely can, that the British model of JP offers a glimmer of light in the darkness created by the backlog of cases in our magistrates’ courts.
The problem of the backlog of cases has also been a matter of deep Malaysian concern. In order to implement a backlog and delay reduction program, some associations of JPs in 2004 pressed the federal government of Malaysia to allow JPs to sit as second-class magistrates. In 2011, the World Bank also published a progress report on efforts made by the Malaysian government to deal with court backlogs. The proposed judicial roles played by JPs in Hong Kong and their contributions in reducing caseloads deserve full consideration. It does not need emphasizing that the appeal system and the availability of support facilities in magistrates’ courts in England and Wales have strengthened the British model. These control and support mechanisms highlight as particularly convincing the argument that the British model is a safe and feasible formula in reducing the workload of professional judges.
Junius Ho is a Legislative Council member and a solicitor.
Kacee Ting Wong is a barrister and a part-time researcher at Shenzhen University Hong Kong and Macao Basic Law Research Center.
The views do not necessarily reflect those of China Daily.