27 October 2016
Geoffrey Ma stated in no uncertain terms in his keynote speech during the ceremonial opening of the 2016 legal year that judicial independence is the key to rule of law in Hong Kong. Photo: HKEJ
Geoffrey Ma stated in no uncertain terms in his keynote speech during the ceremonial opening of the 2016 legal year that judicial independence is the key to rule of law in Hong Kong. Photo: HKEJ

Judicial independence the key to rule of law

The ceremonial opening of the legal year, which takes place every January in Hong Kong, provides an opportunity for members of the legal profession to reflect on the past and hope for the future.

This year’s ceremonial opening, which took place Jan. 11, was no exception, as keynote speakers such as Chief Justice Geoffrey Ma Tao-li, Bar Association chairwoman Winnie Tam Wan-chi and Law Society president Stephen Hung Wan-shun took great pains in their speeches to draw our attention to some of the key issues and landmark events in the past year that had profound implications for the rule of law in our society.

If one paid attention to their speeches, one might have noticed that the two biggest concerns among members of the legal sector in Hong Kong right now are judicial independence and judicial reviews.

All three of the speakers mentioned spent a lot of time in their speeches stressing the importance of upholding judicial independence in Hong Kong.

As Ma put it, “the principle of judicial independence is set out in the Basic Law. Over the years there have been a lot of comments made by various public figures about our judicial independence.

“Despite their varying stances on this issue, there is one thing that definitely deserves to be reiterated over and over again: judicial independence is the key to the rule of law”.

The fact that prominent figures in our legal profession all pointed to the overriding necessity to uphold judicial independence indicates they have noticed alarming signs of a mounting threat against judicial independence in recent years, and that the threat is getting increasingly relentless.

One striking example is the remarks made by Zhang Xiaoming, director of Beijing’s liaison office in Hong Kong, last year at a seminar commemorating the 25th anniversary of the promulgation of the Basic Law.

Zhang said Hong Kong did not practice separation of the three branches of government before its handover to China, nor has it been practicing it after 1997.

He said the decision not to practice separation of powers was an important guiding principle throughout the drafting of the Basic Law.

Zhang’s words amounted, in fact, to an outright dismissal of judicial independence in our city and raised grave concern among the general public and the legal sector.

Judicial reviews have also been at the center of public attention over the past year and became the subject of heated debate, thanks to Chief Executive Leung Chun-ying’s allegation that numerous judicial reviews filed by members of the public were politically motivated in an attempt to sabotage key government-backed infrastructure projects.

In their speeches, Ma and Tam went into great detail to explain the necessity to uphold the right of citizens to use judicial review as a device to redress unjust government actions.

Tam also cited official figures to refute loud and clear the accusation that the judicial review system has been abused.

One passage in the chief justice’s speech is particularly noteworthy: “Hong Kong’s legal system is based on the common law and on that system’s characteristics of fairness, transparency and access to justice.

“The key players include, of course, those who are most intimately connected with the law’s operation, the courts and the legal profession, but of considerable importance is also the understanding and acceptance by everyone, especially those with influence or power, of the purpose of the law.”

Although Ma didn’t specify who those people “with influence or power” are, everybody knew whom he was referring to.

Despite the chief justice’s kind reminder, the unrepentant Leung insisted when answering reporters’ questions the next day that the judicial review system has been abused.

How could a man who deliberately smears our judicial system and tries to deprive his people of the civil rights to which they are entitled still have the nerve to hang on to his job as chief executive of a city famous for its rule of law?

This article appeared in the Hong Kong Economic Journal on Jan. 19.

Translation by Alan Lee

[Chinese version 中文版]

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Legco member representing the Legal functional constituency (2012-2016) and a founding member of Civic Party

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