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Judicial independence remains solid and robust

By Teresa Cheng | HK EDITION | Updated: 2022-07-01 09:32

A view of Victoria Harbor in Hong Kong. [Photo/VCG]

Judicial independence is a cornerstone and key component of the rule of law in Hong Kong, and its importance cannot be overstated. Judicial independence signals that the administration of justice is in the hands of impartial judges who are part of an independent judiciary, dealing with disputes by hearing and deciding cases on their merits, being free from outside influence or pressure.

There have been suggestions that judicial independence in Hong Kong has been under systematic attack and has been substantially undermined. However, to objective and fair-minded observers who take into account the actual situation in Hong Kong, these suggestions are unsubstantiated. Even a cursory glance at Hong Kong's legal infrastructure will reveal that these suggestions are wholly incorrect.

The Basic Law expressly provides for judicial independence in Hong Kong to be constitutionally guaranteed. It is clear from Articles 2, 19 and 85 of the Basic Law that independent judicial power, including that of final adjudication, is exercised by the Judiciary, free from any interference.

The appointment criteria of judges are also constitutionally set out in Article 92 of the Basic Law and form an integral part of the solid infrastructure of judicial independence. Article 92 of the Basic Law notes that the only criteria upon which judges are appointed are their judicial and professional quality. The appointment of judges by the chief executive is based on the recommendation of an independent statutory commission comprising nine members, among which are three eminent and respected members of society not connected with the practice of law. There is also no political vetting in the judicial appointment process. Article 92 of the Basic Law also stipulates that judges may be recruited from other common law jurisdictions. Hence, unusually, there is no nationality requirement for judges of all levels of courts.

Once appointed, judges enjoy security of tenure and immunity from legal action in the performance of their judicial functions, and can be removed only for their inability to discharge their duties or for misbehavior as set out in Article 89 of the Basic Law. These safeguards ensure that our judges, who took the judicial oath upon their appointments, administer justice without fear or favor and without bias, based only on the law and evidence before them.

Indeed, from the judgments delivered by the courts setting out the full reasons for arriving at a particular decision, it is clear that judges administer justice based solely on the law and evidence before them. We can also see that judges, when considering cases, have kept an open mind and remained impartial, not influenced or interfered with by any extraneous matters or personal interests. Open court hearings reflect the transparency of judicial adjudication of cases.

The judicial practice of having open court hearings and providing publicly available written judgments with reasons demonstrate to all objective and fair-minded observers that transparency and due process are observed. This point has been reinforced in the address of the chief justice of the Court of Final Appeal at the Ceremonial Opening of the Legal Year 2022, where he notes: "For those who are interested in finding out how the constitutional guarantee on judicial independence in Hong Kong is practiced on the ground, our court hearings are open to the public, our judicial decisions are publicly announced, and the courts' reasons are published for everyone to study."

It is also telling that in the most recent Legal Conference on Basic Law with the theme "Stability to Prosperity", Mr Justice Patrick Chan Siu-oi, non-permanent judge of the Court of Final Appeal, remarked that throughout his 30 years as a judge, he had not been subject to any interference in his judgments, nor in his involvement in the appointment of other judges.

Hong Kong's rule of law has been consistently recognized globally in the Worldwide Governance Indicators project of the World Bank, where, since 2003, Hong Kong has consistently been above the 90th percentile in the aggregate indicator in respect of the rule of law, representing a remarkable improvement from 69.85 back in 1996.

Some may say that the enactment of the National Security Law for Hong Kong negatively impacts judicial independence in Hong Kong. One must note firstly that the National Security Law does not affect the common law system in Hong Kong. Secondly, the criminal justice system of Hong Kong, ensuring that crimes are effectively detected and investigated, and criminal cases are handled impartially and efficiently, whilst protecting the rights of all parties involved in the process, applies to all cases, including those concerning offenses endangering national security. Thirdly, judges, when adjudicating cases of national security, remain independent and impartial by administering justice in accordance with law and evidence, free from any interference.

The judgments delivered by Hong Kong courts show that the common law principles, such as the presumption of innocence and the right to defend oneself, had been applied in cases concerning endangering national security. This also shows that the common law system, judicial independence and the rule of law in Hong Kong have not been affected by the National Security Law.

Having a strong independent judiciary and the rule of law goes a long way in the development of Hong Kong as an international financial center. Article 109 of the Basic Law provides that "The Government of the Hong Kong Special Administrative Region shall provide an appropriate economic and legal environment for the maintenance of the status of Hong Kong as an international financial centre." Recently, at the National Security Law Legal Forum "Thrive with Security", Mr Norman Chan Tak-lam, the former chief executive of the Hong Kong Monetary Authority, noted that the fact that Hong Kong continues to flourish as an international financial center indicates the robustness and strength of judicial independence in Hong Kong.

One of the most valuable assets of the common law is the reasoned judgment, upon which stare decisis is premised and which, by reflecting transparency, is a testament to judicial independence. In exercising judicial function, it is a constitutional duty to act impartially and independently, free from any interference. This duty has not wavered notwithstanding the contemptible attempts to threaten our judicial officers and their families, made with a view to undermining the core value of our rule of law. The statements made judicially and extrajudicially by members of the permanent judiciary expressing commitment to judicial independence are supported by their unbiased consideration of law and evidence when adjudicating cases, as evidenced in the reasoned judgments. With a strong, robust and professional legal fraternity, I trust our judicial system will continue to remain intact and robust.

The author is former secretary for justice of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.

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