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Stress on Hong Kong judicial independence ‘hits raw nerve in China’s Communist Party’

蘋果日報 2020/12/30 15:06


The independent judiciary of Hong Kong came under a series of onslaughts from the pro-establishment camp throughout 2020, a phenomenon that one barrister and former lawmaker attributed to sensitivity in China’s corridors of power about the word “independence.”
A look back at the year that is fast ending yields a picture of Beijing loyalists, including lawmakers and media outlets, consistently casting doubt on the judgment and neutrality of Hong Kong jurists. As the heat persisted, Chief Justice Geoffrey Ma of the Court of Final Appeal in September took the rare step of issuing a statement that ran into more than 10 pages. He gave a detailed explanation about the principles and factors ensuring judicial independence under the city’s common law system, and also stressed that the judiciary should not be politicized.
Nevertheless, the checks and balances that had been safeguarding the Hong Kong system continued to collapse one after another. The central Chinese authorities’ drive to fully govern Hong Kong was already in motion, as Beijing encroached on the executive and legislative branches of government and dumped the idea of separation of powers in the highly autonomous city.
The magnified focus on the local judiciary could be traced back to the summer of discontent in 2019, when anti-extradition bill protests triggered months of unrest that in turn generated a large volume of criminal proceedings.
In November of the same year, Han Zheng, the Chinese vice premier who oversaw Hong Kong affairs, told the city’s Chief Executive Carrie Lam: “Putting an end to the violence and restoring order is the shared responsibility of Hong Kong’s executive, legislative and judicial branches.”
A spokesperson of the State Council’s Hong Kong and Macau Affairs Office in May 2020 fired the opening salvo at the judiciary, bemoaning the delay in meting out punishment to violent protesters.
Against this backdrop, pro-Beijing forces started bombarding the judiciary as if on cue. Complainants accused Magistrate Stanley Ho of “letting violent defendants off the hook,” while lawmakers repeatedly suggested, without providing details, forming monitoring and sentencing bodies to check the work of judges.
A former pan-democratic lawmaker for the legal sector, Margaret Ng, said Hong Kong’s constant emphasis on judiciary independence was what got the Communisty Party in China into a bundle of nerves.
“Any mention of the term ‘independence’ touches a nerve in them, because they want the three powers of government to ‘cooperate’,” Ng said.
Opposition to the existence of separation of powers in Hong Kong reared its head in late August when a publisher deleted the corresponding content in a Liberal Studies textbook following a review undertaken by the government’s Education Bureau.
At that time the Lam administration, together with Beijing officials, insisted that Hong Kong had no system of separation of powers. She also stressed the executive authorities, the legislature and the judiciary should coordinate with one another and exercise checks and balances, but that all of them must be accountable to the central government through the chief executive.
The Hong Kong Bar Association, which had oversight of the city’s barristers, released a statement arguing for the existence of separation of powers from legal perspectives. Its vice chair, Anita Yip, said that there was no room for debate as the separation of powers was surely in existence.
The three powers each performed its own duties and “there is no need to coordinate with the executive branch. That has never been the case, and there has been no need to let the executive lead or monitor the judiciary,” Yip said.
She expressed concerns that if people believed Hong Kong had no separation of powers, the rule of law would be eroded sooner or later.
Beijing’s passage of national security laws on June 30 was another blow to the Hong Kong judiciary. Yip singled out the chief executive’s subsequent appointment of judges to hear national security cases. That undermined the judiciary and raised questions of whether judges were free from political pressure, she said.
Angeline Chan, convenor of the Solicitor and Progressive Lawyers Group, said: “Theoretically, the law is not about suppressing one and all just because you are the most powerful or the smartest, but about having a system that allows everybody to participate in society.”
“But the law is also fragile,” she added; it depended on effective implementation and therein lay the importance of separation of powers.
It was up to the secretary of justice, not the courts, to uphold the rule of law as she had the power to decide who to sue, Chan said.
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