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Judicial reform to enhance rule of law

By Willy Fu | China Daily Asia | Updated: 2021-01-25 11:01


The rule of law and judicial independence are some of Hong Kong's core values and cornerstones of socioeconomic development, but the judiciary has repeatedly suffered various abuse in recent years, including but not limited to certain judges consistently setting free suspects of politically motivated crimes in total disregard of the evidence provided by the police; and anonymous letters sent to court judges threatening to physically harm or even kill them and their families if they convict rioters. Such outrageous examples of abuse show a serious lack of deference to the rule of law among some members of the judiciary as well as the public. It is high time the judiciary put its house in order for the sake of the rule of law by wiping out political favoritism and replacing ideologically biased, power-abusing judges with patriotic, uncorrupted ones. Judicial reform is not just necessary but also urgent to cure the ills plaguing the judiciary and safeguard or enhance the rule of law.

Articles 2, 19 and 85 of the Basic Law stipulate the Hong Kong Special Administrative Region (HKSAR) enjoys the right of independent adjudication, including the right of final adjudication, free of any forms of outside intervention. By definition "judicial independence" means judicial institutions, courts, judges and other functionaries, when performing their official duties, must not be affected by unlawful pressure or influence.

Newly appointed Chief Justice of the Court of Final Appeal (CFA), his honorable Justice Andrew Cheung Kui-nung, writes in his welcoming message on the official webpage of the HKSAR Judiciary, "The Basic Law provides that the Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication. The Judiciary maintains an independent, transparent and effective judicial system which upholds the rule of law and safeguards the rights and freedoms of the individual." Judicial fairness requires judges to keep their personal prejudice/bias absolutely off judicial matters. Judges, when handling politically charged cases, must honestly refrain from letting their own politico-ideological bias or preference affect their comments in court hearings, ruling and sentencing, and treatment of the prosecution, defense and witness judgment. They must be extremely careful with their judgment to ensure absolutely no unprofessional or slanted opinion exists in their court decisions that could weaken public confidence in the judiciary.

"All equal before the law" is the heart and soul of the rule of law, but how should we ensure all judges are free from political/ideological preference, impartial and fair to all parties involved in court cases? After all, judges are human beings with their own opinions and faiths as well as the right and freedom to express personal views and practice their chosen beliefs. That said, judges' individual rights, freedoms, opinions and beliefs do not belong in their court decisions, which can only be based on facts, evidence and relevant laws. Members of the public always expect all sitting judges to be fair and impartial in court no matter what happens and who can blame them for making such basic expectation and demand?

Former Chief Justice of the CFA Geoffrey Ma Tao-li, when sharing his thoughts on claims such as "separation of powers" and "the rule of law is dead", was emphatic that he had never experienced any pressure from the HKSAR government or Beijing, adding that Hong Kong and the mainland can always exchange views on judicial matters despite the difference between two law systems. He also said the claim that "the rule of law is dead" is unacceptable if it is only because someone doesn't agree with a particular court ruling. As for public demands for immediate judicial reform, he said it is the right thing to do if there is a good reason for it, and inability to win court cases is no reason to demand judicial reform. I am grateful that Justice Geoffrey Ma found a well-qualified CFA chief justice in His Honorable Justice Andrew Cheung to helm Hong Kong's top court. Justice Ma deserves our respect for nearly 20 years of contribution to the rule of law in Hong Kong.

As new chief justice of the CFA, Justice Andrew Cheung's top priority should be putting the judiciary in good order according to the Basic Law of the HKSAR and keep Hong Kong courts professional, impartial and efficient in administering justice while duly updating the judicial system in response to the changing times and justified public expectations. The judicial institutions have a huge backload of cases to hear and rule over; and it is Chief Justice Cheung's responsibility to see them handled in a fair and timely fashion in the best interest of Hong Kong society as a whole and that of the judiciary itself. It is no doubt a giant challenge but one the chief justice cannot avoid or overlook. Judicial independence is not judicial autocracy or judicial kingdom. We need upright, incorruptible and patriotic judges of impeccable character to serve justice in Hong Kong courts, otherwise there will be no fair trial, particularly in politically charged cases, because of the judges' politico-ideological preference or bias or personal beliefs.

The author is a member of the Chinese Association of Hong Kong and Macao Studies, Executive Council vice-chairman of the Hong Kong Legal Exchange Foundation and adjunct professor at Beijing Jiaotong University's Law School. This is an abridged translation of his article published on Orange News on Jan 21.

The views do not necessarily reflect those of China Daily.

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