How politics is contaminating our rule of law

January 21, 2019 18:03
Under the rule of law, the only criterion for deciding whether to institute a prosecution against a person or how to rule on a particular case is do it according to the law and evidence. Photo: HKEJ

The rule of law in Hong Kong has come under severe and imminent threat in recent years as  opposition politicians have been trying to place their own political “perceptions” above our legal profession, our rule of law, public interests as well as the relationship between the executive and legislative branches.

As a result, our rule of law has been increasingly under the threat of contamination by politics.

As Chief Justice Geoffrey Ma Tao-li has put it in his speech at the ceremonial opening of the legal year last Monday, "it is no part of a court's function or duty to adjudicate on political or social issues”.

Instead, he stressed, "the court is concerned with dealing with one aspect and one aspect only: a resolution of the legal issues arising in the dispute before it".

Ma also said that "[c]onstructive criticism of the courts is always welcome", but "criticism, in order to be effective and constructive, must be informed as opposed to being based on misunderstandings or inaccuracies”.

Unfortunately, despite the courts' rulings, that kind of political contamination has already got its claws into the prosecution work of the Department of Justice (DoJ).

One striking example is the way the opposition has been coming after the DoJ over former chief executive Leung Chun-Ying’s allegedly undeclared acceptance of HK$50 million from the Australian firm UGL. 

Although the justice department has already come to the conclusion that there is no sufficient evidence to prosecute Leung, our bloodthirsty opposition politicians simply just won’t quit.

Not only do they continue to hold Secretary for Justice Teresa Cheng Yeuk-wah’s feet to the fire over DoJ's decision not to press charges against Leung, but they have also blatantly demanded in the Legislative Council that Chief Executive Carrie Lam Cheng Yuet-ngor review the case, reopen a file and seek new advice.

Given that, I wish to make several points here:

First, in any society that is governed by the rule of law, the only criterion for deciding whether to institute a prosecution against a person or how to rule on a particular case is do it according to the law and evidence, rather than having a different treatment because of that person’s “sensitive" identity or some people’s perceptions.

Worse still, demanding for executive interference in our judiciary would not only signify the demise of our rule of law and a reversion to a state of the rule of man, but may also mark a huge regression of our democracy to a situation where “a lie that is told a thousand times would become the truth”.

Second, while opposition lawmakers are ferociously coming after the decision of DoJ not to bring charges against Leung, all they did was express disappointment about the same verdict made by the British and Australian authorities.

Such a gratuitous double standard not only indicates their pro-Western mentality, but also suggests that their moves are purely politically-motivated.

Third, it is my firm belief that the justice department must never cater to the “perceptions” of some politicians at the expense of our rule of law in the course of making prosecution decisions.

The DoJ has the constitutional responsibility to institute independent prosecutions, and make impartial and professionals judgment according to our law and the available evidence. 

Given the fact that all policies, procedures and decisions that concern prosecution matters fall within the terms of reference of the DoJ, I agree that there is no need to seek outside legal advice on any particular case unless the defendant is a DoJ staffer, or used to be a work acquaintance of the prosecutor in charge of that case.

Fourth, that the opposition politicians were demanding for a detailed and public explanation from Cheng for the DoJ’s decision not to press charges against Leung constitutes an outright disrespect to our legal profession.

Imagine this: under the principle of the presumption of innocence, it would be tantamount to subjecting Leung to a "public trial" that saw conviction without trial if our justice secretary made public the details of the UGL case when the DoJ had already decided to drop charges against him.

And finally, fifth, like Executive Councilor Jeffrey Lam Kin-fung has pointed out, the rule of law is among the core values of Hong Kong.

That said, as Cheng has already clearly explained the legal grounds for not bringing any prosecution against Leung, it is indeed time to stop fueling the hype around this issue and stop politicizing it, so as to bring respect back to our legal profession.

This article appeared in the Hong Kong Economic Journal on Jan 17

Translation by Alan Lee

[Chinese version 中文版]

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President of the Association of Hong Kong Professionals