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Wednesday, September 30, 2020, 10:30
Upholding rule of law, or myth of ‘judicial supremacy’?
By Yang Sheng
Wednesday, September 30, 2020, 10:30 By Yang Sheng

Public demand for judicial reform has been rising lately after some judges were perceived to have shown their political preferences in the courtroom. The controversial rulings of those politically biased judges have angered numerous members of the public so much that many people believe judicial reform is the only way to prevent political interference in judicial processes. All the public wants is an institutional mechanism ensuring that the judiciary maintains impartiality in administering justice, which will in no way compromise judicial independence.

It has long been a well-observed tradition of Hong Kong society to respect the rule of law because it has been a major cornerstone of the city as an international financial center, free port and trade hub. The Basic Law stipulates Hong Kong courts adjudicate independently and free from any outside interference. Chief Justice of the Court of Financial Appeal Geoffrey Ma Tao-li declared that, since taking the post in 2010, he has never encountered or felt any form of intervention by the Chinese mainland authorities in Hong Kong’s judicial independence, including the appointment of judges. Chief Executive Carrie Lam Cheng Yuet-ngor, when asked for comment on the debate over “separation of powers”, also reiterated that Hong Kong exercises executive-led governance, with the chief executive as the leadership core and being accountable to Hong Kong society as well as the central government; but that does not mean the chief executive can ignore judicial independence. As a matter of fact, it has long been rooted in the collective psyche of Hong Kong society to respect the courts’ independent adjudication.

It is fair to say, as far as non-politicization of the judiciary and putting no political pressure on the judiciary is concerned, the central government, the chief executive, the Hong Kong Special Administrative Region government and Hong Kong society in general have done absolutely the best over the years. As such, the question is whether the judges have lived up to expectations in terms of absolutely no political bias in administering justice. The existing Guide to Judicial Conduct stipulates judges must not exhibit any substantial bias or give the impression of any bias in handling court cases. Then-CFA Chief Justice Andrew Li Kwok-nang said in his speech at the opening ceremony of the 2005 judicial year that judges do not play any role on the political stage. More recently, Ma also emphasized that judges, when performing their judicial duties, must avoid expressing opinions over controversial issues or issues that may ultimately be brought to the court, adding that judges or any other judicial officers publicly expressing inappropriate or unnecessary political views in court may damage the impartial image of the court and adversely affect the credibility of the cases they handle.

Has the judiciary upheld the principles of fairness, impartiality, independence and non-politicization since the anti-extradition law amendment bill campaign began last year? The answer is a hugely disappointing “no”. We saw not only some sitting judges lending their real names to a statement opposing the extradition law amendment bill but also some judges telling the press anonymously about their objections to the extradition law amendment bill. Such actions by sitting judges were immediately criticized by many legal professionals as a veiled intention to let political preferences affect their handling of court cases. And true to their “worries”, some of them showered anti-extradition rioters with such flatteries as “admirable character”, “full of ideals”, “outstanding youth” and “future pillars of society” before awarding them with light sentences if not acquittal. At least one judge repeatedly dismissed testifying police officers as “liars” and rejected witness accounts and material evidence without giving a sound reason. That is politically motivated abuse of “guilty beyond a reasonable doubt” to protect defendants they sympathize with. If that is not politicization of the judiciary, I don’t know what is.

What members of the public have witnessed is politicization of the judiciary from the inside rather than through outside intervention. Some judges went so far as to put their political views in the rulings for court records but then the judiciary accused public criticism of politicizing the judiciary and its functions. In doing so, they have confused cause and effect, and exposed their arrogance for the world to see. The politically biased judges and judicial officers have been compromising Hong Kong’s rule of law and judicial independence by letting their political persuasions work into their rulings, leaving members of the public no choice but to demand immediate judicial reform to save judicial independence, impartiality and fairness before they are further compromised. Those who oppose judicial reform with whatever excuses had better be sure they uphold the rule of law instead of the “judicial supremacy” myth.

The author is a current affairs commentator. The views do not necessarily reflect those of China Daily. 


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