Former Hong Kong chief justice Andrew Li said judges have no master and their fidelity is only to the law.
In an op-ed article published by the South China Morning Post and Ming Pao Daily on Friday, Li said the legal requirement that they must take the judicial oath is “a sufficient and satisfactory arrangement”.
Li was commenting publicly for the first time on China’s post-handover policy on Hong Kong, contained in a white paper released by the State Council in June, which says judges are administrators and therefore subject to patriotic standards.
Rule of law with an independent judiciary is universally recognised as a cornerstone of Hong Kong society under ”one country, two systems”, Li said. “It is a core value which lies at the heart of our separate systems.”
He said the separation of powers between the executive, the legislature and the judiciary may be regarded as the three branches of government in a broad sense.
“The latter two are not part of the executive. Considering that the Chinese version of the white paper used the term zhi gang [which can be translated as the governance of Hong Kong], it would appear that this is what was intended. Unfortunately, the English version used the word ‘administrate’. This is unfortunate and is unsuitable,” he said.
“But what is of great concern is the requirement in the white paper that judges should be patriotic. There is no universal definition of patriotism… A person may be regarded as patriotic by some but not by others.”
Li said the notion of being patriotic would include being pro-central government and being pro-Hong Kong government and being supportive of them and co-operating with them and protecting their interests.
“Under the principle of judicial independence, judges should not be pro or anti anyone or anything. They should be fair and impartial. Judges have no master, political or otherwise.”
However, he said that while mainland officials may have views on judicial independence different from those held in Hong Kong, they understand and appreciate the Hong Kong perspective.
“I sense that some people are rather gloomy about the future of the rule of law. I do not share their pessimism,” he said.
“The vigilance which has been exercised following the publication of the white paper by the community, including the legal profession, particularly the Bar, is encouraging and heartening. As has been well said, eternal vigilance is the price of liberty.
Li said he is confident that “with constant vigilance, the rule of law with an independent judiciary will continue to thrive in the coming years”.
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