24 October 2016
The judiciary's independence appears to be under growing threat from Beijing's political intervention. Photo: CNSA
The judiciary's independence appears to be under growing threat from Beijing's political intervention. Photo: CNSA

Is politics eroding the independence of our courts?

Hong Kong has been proud of its tradition of an independent judiciary and the rule of law, two values that we believe differentiate our city from the mainland.

However, several recent rulings by local courts have raised fears that politics may be creeping into our judicial system and eroding its foundations.

This concern is reflected in the results of the latest survey by the University of Hong Kong’s Public Opinion Programme, which showed that people’s perception of the rule of law in the territory has fallen to a 10-year low.

The survey results came after deputy magistrate Michael Chan Pik-kiu of the Tuen Mun Magistrates’ Court ruled that a woman was guilty of assaulting a policeman with her breasts during a protest earlier this year. More than a hundred people wore bras in a rally to denounce the decision.

Hong Kong people still respect the judicial system and the rule of law as part of the city’s core values, basically because they believe that the courts remain insulated from politics.

Given the government’s use of its agencies and offices to implement the policies of Beijing, they look up to the courts to dispense justice without fear or favor.

However, as political tensions increase between the pro-Beijing camp and the pan-democrats, people are starting to feel that politicians are using the courts to impose their will on the public and provide legitimacy to their unjust policies and programs.

One of the clearest examples of this could be found in the Occupy protests last year.

As pro-democracy activities occupied the streets to demand genuine universal suffrage, pro-Beijing politicians filed for court injunctions to end their protests. They used the judicial system to resolve a political deadlock.

The question will be asked: Are the Hong Kong courts taking a political stance against the opposition camp for political reasons? 

The answer, so far, is no. Many judges are professional enough to rule on cases without taking into consideration the political implications of their decisions, even though the cases may involve political issues.

For example, a judge ruled that 40 people who had been arrested in an Occupy zone were innocent, showing that the courts could defy the wishes of the powers that be and ignore the political repercussions of their rulings.

However, the government continues to use the court as a political tool to maintain social order by initiating the filing of criminal charges against activists like student leader Joshua Wong Chi-fung for a public demonstration that happened three years ago.

Was the case so complicated that the police needed three years to investigate? Of course not, but the government wanted to send the message to activists that they have to pay dearly for their anti-government actions.

While Hong Kong people still depend on the courts to uphold the law, they believe that the entire judicial system remains fragile in the face of Beijing’s political intervention.

Last year, the State Council released a white paper on the “one country, two systems” principle, asserting that Hong Kong’s autonomy comes from the authority of the central government.

The document also urges the Hong Kong judiciary staff to work closely with other civil service sectors, a clear indication that Beijing wants to strengthen its grip on the territory by extending its influence to the judiciary system.

Under the current system, Chief Executive Leung Chun-Ying exerts a powerful sway that could affect the independence of the judiciary. He has the power to appoint the chief justice, judges, the committee that selects the judges, as well as the justice secretary and the chief government prosecutor.

While the system has been running for decades since the British rule, people are afraid that CY Leung, given his firm loyalty to his Beijing masters, has no qualms in using his influence over the judiciary to advance his political agenda.

In addition, the current system of appointing deputy magistrates in the local magistracy is also raising concerns as they are working for the courts on a part-time basis and are allowed to have their own business outside the judiciary.

Such an arrangement could give rise to conflict of interests.

Retired High Court judge William Waung Sik-ying recently voiced his concern over the independence of the judiciary in Hong Kong, saying that Beijing’s increasing intervention in local affairs is eroding the city’s rule of law as the central government is trying its best to extend its influence to the judicial system.

Waung also said the appointment of members of the Judicial Officers Recommendation Commission who are too close to the administration could shake the judiciary’s independence as CY Leung has been labelled as a pro-Beijing politician.

His remarks touch on issues that fuel doubts on whether judicial independence still exists in Hong Kong.

Our judicial system is what distinguishes our city from other mainland cities. But it appears that the judiciary is having its own difficulties in upholding its independence in the face of political challenges from the administration.

When the courts fail to uphold justice and even draw public anger, it could be a signal that the judiciary is in trouble.

It’s worth seeing whether Beijing and Hong Kong authorities will uphold the independence of the courts, or seize the opportunity to bring the entire judiciary under their control.

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EJ Insight writer

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