21 August 2019
There have been many improper oath-taking cases in the past. The fact that Justice Au failed to recognize that in his Youngspiration ruling suggests he was complying with Beijing’s wishes. Photo: HKEJ
There have been many improper oath-taking cases in the past. The fact that Justice Au failed to recognize that in his Youngspiration ruling suggests he was complying with Beijing’s wishes. Photo: HKEJ

How Justice Thomas Au opened door for ‘cooperation’ in govt

The National People’s Congress Standing Committee’s recent interpretation of Article 104 of the Basic Law left the people of Hong Kong in a state of shock in two ways.

One is that the interpretation unmistakably indicated that Beijing maintains a firm grip on both the judiciary and the legislature.

It will go to any lengths to get rid of any lawmaker who advocates separatism, regardless of the fact that he or she has been elected to Legco.

And two is that Justice Thomas Au’s ruling on the oath-taking case almost completely dispelled the longstanding myth that judges are always impartial and immune to political pressure.

In fact, Justice Au’s ruling served as a rude awakening that judges have always had the best interests of the government, the rich and the powerful, as well as the establishment, rather than the average individual, at heart.

We would be naive to believe that the common people can rely on the court to redress social inequalities.

As I have stressed over and over again, if the people of Hong Kong really want to achieve self-determination and topple the status quo, they can rely on no one — not the judges or politicians — and fight for their cause through direct action.

Just think about it: would Beijing have dared undertake the NPCSC interpretation if hundreds of thousands of our fellow citizens had taken to the streets and staged another occupy movement as they did two years ago?

On the other hand, the fact that Beijing unilaterally called a halt to the Individual Visit Scheme and stopped allowing 10 million tourists to come to Hong Kong annually as planned is largely because it had cold feet in the face of massive resistance by tens of thousands of Hong Kong citizens.

Such remarkable achievements are not something that the pro-establishment court or some hypocritical politicians could have accomplished.

The fact that on Nov. 4 Justice Thomas Au denied a request by senior barrister Benjamin Yu, representing the government, for a quick ruling after he had already heard the arguments from both sides, and then went on to spend two weeks to write his ruling suggests that Justice Au was waiting for “instructions” from the NPCSC.

Justice Au’s repeated assertion that he had not been influenced by the interpretation was a dead giveaway that only further incriminated him.

Rather than laying down the legal grounds for the ruling in the government’s favour, Justice Au’s 50-page decision was in fact a collection of arguments intended to justify why the separation of the three branches of government no longer applies before the omnipotent NPCSC. That is absolutely spine-chilling.

I have reason to believe that not only were the government and the Department of Justice, but also the judiciary, notified in advance of the details of the NPCSC interpretation, all of them were also instructed by Beijing to act accordingly.

It appears Justice Au fully complied with Beijing’s order and also did more.

That said, I would say Justice Au has opened the door for the “cooperation of the three branches”, the kind of system practised in the mainland.

The fact that he failed to take into account the important factor that the Youngspiration duo were only mimicking their predecessors who also deliberately failed to deliver their oaths properly in protest against Beijing’s political interference, suggests that Justice Au has allowed himself to be an accomplice in Beijing’s plot to destroy our judicial independence.

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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HKEJ columnist

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