U.S. Supreme Justice Ruth Bader Ginsburg passed away last Friday, leaving behind a legendary story of her life devoted to justice and equality. Her death coincided with the final stage of the U.S. presidential election, bringing variables to the election campaigns of the Democratic and Republican Parties. Looking at Hong Kong, under the controversy over the separation of powers, a judge recently resigned from the Court of Final Appeal. I’m afraid “the death of the rule of law” will become a social consensus. We may be able to get some inspiration for Hong Kong’s judicial system by looking at the dispute over the balance of power in the U.S. Supreme Court.

Ginsburg had been a pioneering advocate for gender equality all her life. Back in the 1960s, she encountered gender discrimination and was rejected as a trainee of the Supreme Court despite being highly recommended by the Dean of Harvard Law School. Later, she entered academia and became a law professor, initiating affirmative action lawsuits one after another. She was appointed a Supreme Court Justice in 1993, the second woman in U.S. history to sit on the high court. During her tenure, she became an icon of the American equal rights movement and her notable majority opinions inspired generations of young people. Her various influential rulings related to equality have directly affected the lives of millions of people.

In Hong Kong today, it would be difficult to comment on an open-minded heroic icon like Ginsburg. After all, enlightened figures are often regarded as impractical idealists, then will be labeled as “leftard.” Those commentators who are truly familiar with American politics will know that Ginsburg is probably the most “non-unrealistic leftist” representative. One of her famous quotes, “Fight for the things that you care about, but do it in a way that will lead others to join you,” precisely points out that politicians should not only care about being self-complacent. In today’s Hong Kong, this is something worth learning for the pan-democracy camp or localist groups regardless.

Sadly, although Ginsburgy was a legacy, the void she left behind in the Supreme Court will become the stage of a mud fight. According to the U.S. Constitution, the Supreme Court justices are nominated by the President and confirmed by the Senate. Since both of these are now in the hands of the Republican Party, it would in theory give them the chance to fill the seat with a conservative judge whose stance is completely opposite to Ginsburg’s. However, another U.S. Supreme Court judge, Justice Antonin Scalia died 269 days before the election four years ago. The Republicans at the time claimed that they refused to hold a vote over President Barack Obama’s nomination to the Supreme Court in order to wait for the outcome of the election. Now, Ginsburg’s death comes just 46 days before the presidential election and the Republican Party claims to have the right to pass Trump’s nomination. The way they go back and forth on their words is simply revolting.

With that said, the world of the supreme court justice vacancy is not yet the Republican Party’s oyster. With the Republican Party’s current advantage in the Senate, if four senators turn their coats, that would be enough to block the appointment. At present, there are more than four Republican senators, and two of them have expressed opposition to the hasty appointment. What if it is passed after the election but before the new Congress takes office? Regardless of whether there will be any Republicans who will run for re-election in the next term, the Democrats can also try to use various methods to fight the Republicans.

In the event the Republicans really succeed in filling Ginsburg’s seat, the Democrats still have their last resort: reform the composition of the Supreme Court. The U.S. Constitution does not stipulate the specific method of forming the Supreme Court. At present, the U.S. political circles generally believe that the nomination process of the High Court is no longer effective. If the Democratic Party can win the presidency and a majority in the Senate and House of Representatives, the relevant legislation can be rewritten. For example, a one-off appointment of more than 100 circuit judges as justices of the Supreme Court, and thereafter, a panel of judges will draw lots to send representatives on cases.

So far, it can be seen that a political uproar will result if the Senate insists on approving a speedy Supreme Court appointment. Regardless of the outcome of the final struggle between the Democratic and Republican Parties, the Supreme Court will definitely be the loser, and its credibility in the eyes of the people will be greatly reduced.

Judicial power can only rely on public trust. The court has no weapons, and in reality, it has no ability to enforce judgments but relies solely on the voluntary compliance of administrative power. Andrew Jackson, the seventh President of the U.S., once said that a judge can make his judgment, and it all comes down to the final execution. In theory, if the executive power completely disregards the judicial power, voters can banish the ruler in the next election. However, this is only true under the three conditions that there is an election, the voters take heed, and the court itself is respected by the voters.

As such, we can see the fragility of Hong Kong’s judicial independence. Under a true separation of powers, the abuser must bear the consequences. In Hong Kong, if the government defies the court’s decision, there will be no consequences, plus the chief executive is not directly elected anyway. From the perspective of the court, a judgment that is refused to be enforced by the government (or at the minimum is overturned by the interpretation of the Basic Law by Beijing), is meaningless and just brings contempt upon the court. Therefore, it is inevitable that public opinion suspects that Hong Kong’s courts have also become self-censoring. Even if the government loses a case, the court only dares to find some painless technical reasons and will avoid directly tackling the constitutional issues.

A reasonable regime would not wish to overturn the credibility of the courts. It is true that the government has guns and can force anyone to conform to authority. However, governance would be severely inefficient if force is deployed every time to suppress popular sentiments. It is better to establish fair rules of the game so that everyone has an impartial chance to win or lose. Unfortunately, there are always more short-sighted politicians than far-sighted politicians. The U.S. judicial system remains to be checked by the U.S. voters. And the public knows what remains in the credibility of Hong Kong’s judicial system.

(Leung Kai-chi is a current affairs commentator)

Click here for Chinese version

---------------------------------

Apple Daily’s all-new English Edition is now available on the mobile app: bit.ly/2yMMfQE

To download the latest version,

iOS: bit.ly/AD_iOS

Android: bit.ly/AD_android

Or search Appledaily in App Store or Google Play