Have the judges been nobbled?

August 25, 2017 18:00
A demonstrator covers his head with cardboard jail bars during a rally in Hong Kong on Aug. 20 after a local court ordered jail terms for Occupy student leaders Joshua Wong, Nathan Law and Alex Chow. Photo: Reuters

Has the Hong Kong judiciary succumbed to political control? This question has been brought into sharp focus in the wake of the Appeal Court’s imposition of heavier sentences on democracy protestors. However the question of whether judges have been nobbled is not a simple one.

But an answer need to be found because in the current political atmosphere judicial independence has become a matter of great concern, even in the absence of a smoking gun proving that judges were following political orders.

Concrete proof of political meddling in judicial matters is as hard to find these days as it was in the grim period of the 1960s Communist-inspired riots in Hong Kong when leftists, almost certainly with reason, declared that the judicial system was biased against them as the law was used not just to punish rioters but also their political backers.

Fast forward to today and there are grim reminders of this politically charged atmosphere. However this time around it is those in power who are setting the agenda for questioning the judiciary’s independence.

In the current case, where the Department of Justice successfully applied for harsher sentencing of Joshua Wong, Nathan Law and Alex Chow, it is alleged that Rimsky Yuen, the justice secretary, overruled his colleagues in seeking this appeal. He has yet to deny that this is so.

Perhaps more worrying were the remarks made by President Xi Jinping during his visit to Hong Kong last month when he spoke of the need for the executive, legislature and judiciary to work more closely together.

No one can be stupid enough not to understand that China’s leader was effectively saying that the independence of the judiciary was a thing of the past and that, in mainland terminology, the courts should start 'serving the people'.

Various mainland scholars and commentators have been far more explicit in this regard. Take, for example, He Xin, a member of the 12th National Committee of the Chinese People's Political Consultative Conference, who wrote that "China made a mistake in that it only took over Hong Kong's defense and diplomacy, but not its judicial power."

Others are urging a change in the law to ensure that Beijing's Supreme People’s Court will have the final say in criminal cases.

These proposals for undermining Hong Kong's rule of law can be seen as next steps in the final erosion of Hong Kong's much cherished judicial independence. Meanwhile can it be said that judges are bowing to political pressure?

Earlier this year the boot was on the other foot and Judge David Dufton was accused of 'having a white skin with a yellow heart' by pro-Beijing legislator Wong Kwok-kin.

Wong combined racism with an accusation of a judge supporting the yellow-themed Umbrella Movement, after Dufton jailed seven policemen over an assault on a democracy activist during a 2014 Occupy protest.

Regina Ip, the ever-reliable weather vane of pro-Beijing thinking, also chimed in to say that she disagreed with the sentencing of the policemen but when it comes to the sentencing of democracy protestors she warns that criticism of the judiciary is inadvisable.

So, no lessons on criticism of the judiciary need to be taken from Ip or the other ragbag of commentators who were happy to slam Dufton but now discover that judges should not be criticized.

The really tricky question however remains – were the judges bowing to political pressure? It is highly unlikely that they were responding to direct political orders but direct orders are not necessarily required in matters of this kind.

Judges, after all, owe their jobs to government appointment and if they aspire to sit in the higher courts, their track record on the bench is carefully examined by the likes of Rimsky Yuen, who may well be looking for more 'reliable' pairs of hands. Not a single member of the judiciary is unaware of the implications here.

This is not to say that many judges are not independently minded, and, more importantly, staunch advocates of the rule of law and judicial independence. Some have left well-paying careers as barristers to serve on the bench for more modest salaries, doing so out of a sense of duty and a commitment to the legal process.

Judges have all sorts of motives for what they do; they are, after all, human. It is naïve to believe that they are never swayed by factors that go beyond strict interpretation of the law.

What matters is the system within which they operate; if it is robust and the independence of the judiciary is cherished, it is far more likely that judges will operate in accordance with this prevailing ethos.

The problem right now is that the independence of the judiciary is being challenged and that challenges to its current structure come from the very top of the system.

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Hong Kong-based journalist, broadcaster and book author