The verdicts in the cases of former chief executive Donald Tsang and the seven police officers show the vitality and independence of Hong Kong’s justice system and how it is functioning well despite the intense political conflict in the city.
Both cases were highly charged. One involved one of the city’s best known public servants who was close to many of those holding high positions in the government today.
The other involved officers on duty in the most important political demonstration since 1997. The issue at stake – universal suffrage – remains a subject of intense debate, with strong views on both sides. Among the public, there are fierce views in favor of and against the officers.
The police were tried by a judge, because it was a District Court. Donald Tsang was tried by jury.
Members of the jury had to hold their deliberations with special calmness and clarity and not be influenced by the clamor of opinion in the media and what they heard around them. The juries were Hong Kong citizens, representing the people of the city.
We have a common law system, introduced by the British. It believes that trial by jury is the fairest system, because the judgment is made by peers of the defendant.
This is the wording of National Judicial College in the United States, explaining why jury trials are better than those with judges alone.
“The definition of tyranny is oppressive power exerted by the government. Tyranny also exists when absolute power is vested in a single ruler. Jury trials are the opposite of tyranny because the citizens on the jury are given the absolute power to make the final decision.”
This is especially true when cases are politically sensitive and involve powerful people. In many countries, government leaders and important friends of the accused interfere with the case and put pressure on the judge.
The two trials were carried out with the proper procedure. The accused had qualified lawyers to conduct their defense.
We cannot imagine such trials in the mainland. The justice system there is under the control of the Communist Party and judges are employees of the government who must follow orders of their superiors.
In January, Chief Justice Zhou Qiang, head of the Supreme People’s Court of China, said in a speech to legal officials: “We should resolutely resist erroneous influence from the West: ‘constitutional democracy’, ‘separation of powers’ and ‘independence of the judiciary. We must make clear our stand and dare to show the sword.”
Since Xi Jinping became Communist Party chief in November 2012, numerous senior officials have been sentenced to long prison terms for corruption, theft of public assets and other offences. But none had the judicial process and legal representation that Donald Tsang enjoyed in Hong Kong.
The nearest equivalent in Taiwan was the sentencing of former President Chen Shui-bian and his wife Wu Shu-jen to life imprisonment on September 11, 2009 for money-laundering, embezzlement, taking bribes and other offences.
“Taiwan’s democratic rule of law has surpassed a new threshold,” said the pro-KMT United Daily News in an editorial welcoming the verdict. “Not only can we elect our own president, we can sentence him for his crimes. Taiwan stands out in the Chinese-speaking world.”
But lawyers criticized the procedure, mainly because Chen was kept in the Taipei Detention Centre from December 30, 2008.
Kao Yung-cheng, secretary-general of the Taipei Bar Association said that Taiwan courts had a big problem with politics interfering in the judicial process.
“In the Chen case, the court failed to insure that the defendants had sufficient time with their lawyers for preparation of a proper defense,” he said, arguing that Chen should not have been held in detention before the trial.
Arthur Waldron, a professor of international relations at the University of Pennsylvania, commented: “The way Chen has been treated is not the way a developed and modern country deals with a former head of state. There is an element of the other political side getting its own back.”
Taiwan is between Hong Kong and the mainland. It was under one-party rule for 55 years until 2000, during which nearly all judges belonged to the KMT. It has a civil law system based on continental law, with judges deciding cases; there are no jury trials.
The concept of judicial independence takes years to take root and develop.
Most Taiwan people believe that, had the Democratic Progressive Party retained power in 2008, Chen would not have been charged and convicted.
By comparison, Hong Kong has much to be proud of in its judicial system. The convictions of Tsang and the seven police officers were decided not by judges or politicians but by ordinary people, after fair, lengthy and detailed trials.
Tsang, who was found guilty of misconduct in office, and the police officers, who were convicted of beating up a pro-democracy activist during the 2014 Occupy protests, have the right to appeal.
While we argue constantly about the political system most suitable for the city, let us rejoice in the pillars of justice.
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