Wherever we are, we all want to be treated fairly and justly. When things are not done justly, we immediately feel that and we would say, “that is not fair” or “that is absurd!” James Comey, former director of FBI of the United States, refers to a higher standard of justice in his book Saving Justice. He says, “For centuries, Lady Justice has been depicted wearing a blindfold, She seeks only to weigh the facts, and find the truth…” Here, Comey sets out the ideal higher standard of justice in terms of facts and the truth. He does not compare the US justice system to other countries’. Rather, he refers to the principles of the higher standard.

There is a grave danger in comparing different standards of justice, human rights or criminal justice systems from various places. In the wake of the recent heavy-handed tactics used by the Hong Kong Police Force, a person from the Force told me, “Well, see how the American and French police treat the peoples and protesters? We have been much restrained compared to them.” The lesson here is when you compare one bad thing to another bad thing, nothing good comes out of it. When you go to the market and find a rotten apple, you would put that aside and look for a good one, not a less rotten one. A man who is accused of beating his wife cannot make an excuse that his neighbor also beat his wife, and that he was less violent compared to his neighbor. A man beating his wife is wrong, and does it make sense to compare between how a man beat his wife in India and in the United States? The same logic applies to the police, the criminal justice system, and the judiciary in a country. You strive for the best standard, not a rotten one from elsewhere. Even in poor nations, the best standard is codified into laws and standard operating procedures, but they struggle to implement them due to their lack of political will. If a country needs guidance on a higher standard, it can look to the international human rights standards set out by the United Nations through its many human rights treaties and treaty bodies. However, for anyone aspiring to rule Hong Kong, there is much to learn from the best practices and standards the predecessors have established over decades making the city a competitive and transparent international economic hub.

The Introduction of the National Security Law (NSL) in Hong Kong has raised local and global concern about human rights in the administration of justice. When it comes to using security laws anywhere, a higher standard is needed. Prior to introducing the National Security Law, the Secretary for Justice said Hong Kong should observe principles of the rule of law, including the presumption of innocence and the rights of defense in implementing the NSL. The Secretary for Justice recently said that some people have wrongly grasped the NSL because of their misunderstanding. Not just ordinary people but top legal scholars in Hong Kong have pointed out that they too are unclear about the NSL. When a law is unclear, it allows a broad interpretation that would have varied consequences. If a law is clear, it can be applied with greater clarity and reduce/prevent miscarriage of justice. The Secretary for Justice also said that “the DOJ will decide whether to prosecute the suspects based on evidence … and with professional and impartial attitude.” Referring to the higher standard of justice, the DOJ’s website sets out the Code of Conduct for Prosecutors, which states, “In making decisions and exercising discretion a prosecutor must act fairly and dispassionately on the basis of the law, the facts provable by the admissible evidence, other relevant information known to the prosecution and any applicable policy or guidelines.” The Code goes on to say that a prosecutor must not be influenced by any investigatory, political, media, community or individual interest or representation, personal feelings or beliefs of the prosecutor concerning the offence, the suspect, the accused or a victim of crime, the possible political effect on the government, any political party, any group or individual. The same Code also states that “Article 63 of the Basic Law of the Hong Kong Special Administrative Region provides that the Department of Justice “shall control criminal prosecutions, free from any interference”. That constitutional guarantee of independence ensures that prosecutors within the Department shall act independently without political or other improper or undue influence. Thus, we in Hong Kong do not need to look for a higher standard for it has been formulated and a culture based on it has been built. We just need to go back to it, remind ourselves about it and begin to apply it seriously. The Hong Kong Administration bears a responsibility to adhere to such a high standard it once referred to with pride.

James Comey also states in Saving Justice, “The Department of Justice was built around the notion that … prosecutors are … representing an idea—justice—not an ordinary client.” And the Attorney General (AG) is not the president’s [or executive leader’s] personal lawyer. Barak Obama in his book A Promised Land reiterates the same notion, “The AG was first and foremost the people’s lawyer, not the president’s consigliere.” All these notions surfaced through essays, books and memoirs due to attempts by the previous US administrations to influence the DOJ. Attempting to do so, some, especially those with higher professional standards and integrity, were fired or compelled to resign. But they fought on to retain a higher standard of justice they stood for. Those efforts helped the justice system resist efforts to undermine its credibility. Individual efforts and sacrifices at the end helped save the institutional integrity in the United States. They helped to sustain a higher standard of justice.

The higher standard referred to in the Prosecution Code of the Hong Kong DOJ also regards the Secretary for Justice as the head of the DOJ. The Code refers to a case tried at the Court of Appeal stating, “The prosecutorial independence of the Secretary for Justice is a linchpin of the rule of law… ‘the decision whether any citizen should be prosecuted or whether any prosecution should be discontinued should be a matter for the prosecuting authorities to decide on the merits of the case without political or other pressure.’” Hong Kong has a history of setting up and abiding by the higher standard in general, not just in the justice sector. We should admit that it is not easy to abide by the higher standard. Often, there are no shortcuts to that and a sound system of checks and balances is needed. However, there is a genuine concern locally and globally about the rule of law in Hong Kong. The DOJ not only needs to adhere to the higher standard it set and practiced in the past, but also needs to be seen as practising them.

(Yan Kei, Advocate for criminal justice reforms)

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