Why wigs should go in judicial reform

City talk | Cheng Huan 18 Jan 2021

Three weeks ago this column discussed the pressing need for Hong Kong to take the initiative and make suggestions as to how the judiciary can be reformed.

As I said then, reform of our judicial system is overdue and has become imperative since November's conference in Beijing on "President Xi Jinping's thoughts on the rule of law."

Subsequently, Zhang Xiaoming, the deputy director of the State Council's Hong Kong and Macau Affairs Office, addressed the same subject and increased the pressure on Hong Kong to come up with judicial reforms.

I venture to suggest that a small - but I believe indicative - reform would be to do away with the wearing of wigs by judges and barristers in certain higher courts. It is a simple reform that would act as a physiological break with an outdated past and, it is to be hoped, open the route to further more substantial and needed reforms.

It is time, I believe, to recognize reality and accept that Hong Kong's entrenched and conservative legal system (a carbon copy of English common law), which was imposed on Hong Kong in the 19th century and which we inherited in 1997, requires reform.

I agree it has served Hong Kong well, but the times are changing fast and we need to reset our legal compass.

For, whether we like it or not, unless there is an extension of "one country, two systems" beyond 2047, the common law system will be abolished, leaving Hong Kong with a legal system identical to that of the rest of China.

I often hear people, both lawyers and laymen, say reform is needed not just in judicial matters but in legal professions too.

How are lawyers qualified? Is there any need for the separation between solicitors and barristers? These subjects and many more should be put on the table of discussion and open debate.

The threat to legal services from technology also needs to be assessed.

So I would like to set the ball rolling by suggesting that we should consign lawyers' and judges' wigs to a museum of legal history. The uncomfortable truth is that wigs are merely powerful symbols of a colonial era.

And Hong Kong would not be the first ex-colony to abandon legal wigs. They were long ago discarded in most ex-colonies using the common law.

Their use by lawyers originated more than 300 years ago in the reign of English King Charles ll, when they were a desired fashion accessory of polite high society.

It is also believed that the fashion to wear expensive wigs made of horse-hair started in France when King Louis XIV, who built the Palace of Versailles, tried to hide his early baldness with a wig. His baldness, by the way, was probably a side-effect of syphilis.

Wigs also helped to deal with head lice at a time when it was elegant for men to sport extra long locks. The British introduced wigs into their colonial legal systems as symbols of proud Britishness.

Since achieving independence from Britain, judges have ceased to wear wigs in the United States, Canada and much of Australia. In Asia, India, Malaysia, Singapore and Myanmar have followed suit.

As long ago as 2008, even England abolished wigs in the civil and family courts. It seems wigs as those still worn in Hong Kong's courts are only to be found in a few African countries like Zimbabwe and Ghana - as well as Britain itself, of course.

Grumbling about wigs may seem petty but doing away with them would be a powerful, symbolic reform. It would pave the way for future fundamental reforms.

As the illustrious American founding father and lawyer Thomas Jefferson (whose portrait appears on every US$2 note) said well over 200 years ago: "For heaven's sake, discard the monstrous wigs which make the English judges look like rats peeping through bunches of oakum" (a tarred fiber used to seal gaps in wooden ships).

Cheng Huan is an author and a senior counsel who practices in Hong Kong

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