Tinkering with justice
No doubt Siobhain McDonagh MP’s advocacy of withdrawing the British judges from Hong Kong is well intentioned but, with all due respect, it is misguided.
It is correct that pursuant to their concept of the dictates of National Security, the mainland Chinese government has imposed a parallel criminal justice system much of which is inimical to the liberal common law system which Hong Kong enjoys.
Those charged with offences under the National Security Law fall prey to a dystopian procedure that owes almost nothing to the due process which the liberal rule of law accords.
The right to be granted bail pending trial and to be judged by a jury of one’s fellow citizens have no place in this authoritarian pedagogy, indeed it reverses the fundamental precept that no-one is guilty until that has been proved.
Nevertheless, despite the notoriety attaching to the plastic gamut of offences under the NSL, they constitute a very slim slice of the justice system, the vast majority of which is unchanged.
In effect, NSL cases are confined within a criminal law vacuum.
Though it may have suffered a dent, contrary to Ms. McDonagh’s argument, the system is not broken and is not being propped up by the British judges. Hong Kong’s Judges, barristers and solicitors comprise several nationalities, all of whom pursue their professional obligations in a manner consonant with the same basic principles of the common law that their counterparts do in Britain.
The common lawyers may disagree with the workings of the NSL but they are bound to abide by it constitutionally and it does not impact on their work in the vast multiplicity of legal cases which have nothing to do with the NSL.
The judges to whom Ms. McDonagh MP refers are those Non-Permanent judges of Hong Kong’s Court of Final Appeal. The NPJs are the cream of the judiciary drawn from the major common law jurisdictions, Canada, Australia and New Zealand as well as the UK and bring massive breadth of vision to the decisions of the CFA.
To date, the CFA has only had one NSL case referred to it and this was decided in accordance with established common law principles.
One can readily envisage an NSL case coming before the CFA, at which moment in time the judges, not just the NPJs but the permanent judges, may, arguably, find themselves between the devil and the deep blue sea and be compelled to face the incompatibility of the two systems of criminal justice. But until that moment arrives, Hong Kong needs every reputable common lawyer to keep their shoulder to the wheel, adhering to the familiar legal principles that have evolved over centuries of practical decision making.
Those who wish Hong Kong well should bear in mind that, more often than not, politically inspired sanctions impact adversely on the common populace, whilst the governing authorities easily weather such storms.
Hong Kong’s people need its common lawyers at every level of the system of justice, especially at its apex. That need should not be diluted by empty gestures.
Followed to its logical extremity, Ms. McDonagh’s prescription would require that every common lawyer abdicate their practice in protest against the imposition of the NSL.
Does a minor leak justify the crew abandoning ship or does every member turn to and work to bring it safely to shore?
-- Contact us at [email protected]
-
Architect turns Papercutter, Linking Old and Modern Mark O'Neill
Visitors to the city should be given the Hong Kong Heritage Map, with more than 300 historical buildings to visit – enough to stay for several weeks! This is the work of Nick Tsao, founder of
-
HK migrants alarmed by new British policy Mark O'Neill
Hong Kong people who emigrated to Britain with a BNO passport are alarmed by the new immigration policy outlined on Monday by Prime Minister Sir Keir Starmer. Most alarming is a new requirement that
-
HK says Goodbye to Pioneer of English Education Mark O'Neill
On May 7, 150 people crowded into St John’s Cathedral in Garden Road to say goodbye to a polymath and pioneer of English-language education who lived in the city for 42 years. Dr Verner Bickley
-
French Sisters in HK saved 34000 abandoned children Mark O'Neill
In 19th century Hong Kong, families abandoned thousands of girls whom they could not or would not bring up. They faced death, disease, a life of domestic service or prostitution. But the Sisters of
-
Czech National Ballet in Hong Kong Arts Festival Kevin Ng
Nowadays Hong Kong seldom plays host to overseas ballet companies, except during the annual Hong Kong Arts Festival. Czech National Ballet is the only ballet company touring this year’s Festival. Its