Date
8 December 2016
In the Youngspiration duo oath-taking case, High Court Justice Thomas Au did not cite the recent NPCSC interpretation of the Basic Law in his ruling. Photo: Xinhua
In the Youngspiration duo oath-taking case, High Court Justice Thomas Au did not cite the recent NPCSC interpretation of the Basic Law in his ruling. Photo: Xinhua

We can afford to lose the oath-taking case but not rule of law

When High Court Justice Thomas Au ruled in favor of the government in the recent oath-taking case and declared the lawmaker status of the Youngspiration duo null and void, some critics and members of the public said the decision marked the demise of the rule of law.

To put it more precisely, “the demise of the rule of law” refers to the notion that our judicial independence had fallen by the wayside in the face of the recent National People’s Congress Standing Committee (NPCSC) interpretation of Article 104 of the Basic Law.

They were worried that it would be only a matter of time before our courts degenerate into their mainland counterparts — nothing more than an extension of the autocratic communist regime.

I do not agree with this notion.

If we go through Justice Au’s ruling carefully, we will find that he actually did his best to uphold our judicial independence and rule of law.

For example, he said in his ruling that the three branches of government have to operate under the framework of the Basic Law.

While Justice Au reiterated the overriding importance of the Basic Law, he did not deny that separation of powers does exist in our political system.

On the other hand, the ruling was made entirely on the basis of the Oaths and Declarations Ordinance and existing provisions of Article 104 of the Basic Law.

He did not cite a single word from the NPCSC interpretation. I see no proof of him having succumbed to pressure from Beijing.

What truly worries me is not whether Justice Au did yield to pressure from Beijing as some people argued, but rather, the mounting public distrust of our courts and growing doubt about the impartiality of our judges in recent years.

The day we stop believing in the impartiality and credibility of our courts is the day we start losing our century-old tradition of judicial independence.

Compared with the quickly decaying executive branch and the legislature, our judiciary is perhaps the last stronghold of our core values.

Once people start to lose faith in our judiciary, the guardian of our core values, it would only present Beijing with more excuses to step up its interference in our affairs.

We should remain confident in our courts because we can afford to lose the oath-taking case but we cannot afford to lose the rule of law.

This article appeared in the Hong Kong Economic Journal on Nov. 22

Translation by Alan Lee

[Chinese version 中文版]

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