Hong Kong’s new Chief Justice has vowed to uphold the city’s judicial independence. Can he?

Such obscure parameters have supplied authorities with sweeping powers to crack down on authorities opponents as Beijing continues to tighten its management over the purportedly semi-autonomous metropolis. Hong Kong officers had beforehand promised that the regulation can be restricted in impact, and solely goal a small variety of fringe activists. However, critics allege that since its introduction, the regulation has been used to forcefully stamp out the city’s previously vibrant pro-democracy motion.

With each the legislature and the administration in lockstep with Beijing, the courts are the one department of presidency which retains some extent of autonomy — however one which can be sorely examined by the blunt instrument of the safety regulation.

In his speech, and in a press convention afterward, Cheung prevented discussing the specifics of the regulation, arguing that to achieve this was inappropriate, given it is going to quickly be mentioned in court docket. But he got here again to one key level many times.

“It is my mission to do my utmost to uphold the independence and impartiality of the Hong Kong judiciary,” Cheung instructed reporters. “That is my mission, and I will do my best to fulfill that mission.”

Such independence could also be sorely examined in the coming yr, and if misplaced might have nice prices for Hong Kong’s authorized system and elementary freedoms. In a speech following Cheung’s, Philip Dykes, head of the city’s Bar Association, famous that “without judicial independence, a pearl of great price, we might as well pack up our bags and steal away, for Hong Kong is nothing without it.”

Rule of regulation

When Hong Kong was handed over to the People’s Republic of China in 1997, the city’s new rulers, eager not to disrupt their financial dynamo, have been cautious to pay lip service to the significance of the rule of regulation and impartial judiciary to Hong Kong’s continued success below the precept generally known as “one country, two systems.”

Hong Kong’s authorized system didn’t at all times have the stellar repute it now boasts. When the British established their colony on the newly seized territory in 1842, they gave little thought to how the crown’s new Chinese topics would entry justice.

“In colonial Hong Kong, racial bigotry and prejudice added to the social injustice inherent in the strong class division in Victorian Britain, and they were reflected in the working of the courts,” writes Steve Tsang in “A Modern History of Hong Kong: 1841-1997.” The language of the courts was English, and interpreters have been hardly ever supplied — which means many Chinese defendants have been unaware of what was happening as they have been railroaded by an unfamiliar authorized system and unsympathetic judges.

However, Tsang notes that even in the early years, when discrimination was rife, the “rule of law determined the structure and procedures of the legal system, restrained some governors from pursuing certain policies harmful to the local community and helped to secure the acquittal of many wrongly accused.”

Post-1997, the rule of regulation additionally helped restrict the city’s new rulers. Thanks to its robust protections for speech and meeting, Hong Kong retained a vibrant political and media scene not like something seen in China, with annual demonstrations — comparable to the June 4 memorial for the Tiananmen Square bloodbath — iconic of those freedoms.

But the battle between the nation and the two methods it incorporates has grown over time, reaching breaking level in recent times.

The prospect of being topic to Chinese justice, by an extradition invoice with the mainland, sparked the anti-government unrest that rocked Hong Kong in 2019. Yet whereas the protests have been profitable in defeating the proposed laws, additionally they prompted the eventual imposition of the nationwide safety regulation final yr, creating plenty of political crimes and undermining protections contained inside Basic Law, Hong Kong’s de facto structure, whereas additionally creating the chance for defendants to be transferred to China for trial in some circumstances.

“We must defend the city’s rule of law, but we must also safeguard the national constitutional order,” Zhang mentioned, including that many “problems” had been uncovered in Basic Law that wanted to be addressed.

Judicial rear guard

In his feedback this week, Cheung, the new chief justice, appeared to deal with these controversies, noting that in sure instances, judges have “come under intense scrutiny” and been topic to “partisan criticisms.”

“Whilst the freedom of speech of everyone in society must be fully respected, there must not be any attempt to exert improper pressure on the judges in the discharge of their judicial functions,” Cheung mentioned. “Judges must be fearless and be prepared to make decisions in accordance with the law, regardless of whether the outcomes are popular or unpopular, or whether the outcomes would render themselves popular or unpopular.”

But what precisely the regulation means could also be a shifting goal as Beijing takes a extra hands-on method to Hong Kong’s authorized system.

Under the Basic Law, whereas Hong Kong has a “Court of Final Appeal,” the true arbiter of the city’s structure is China’s National People’s Congress, the nation’s rubber-stamp parliament, which might situation “interpretations” of varied articles of the Basic Law — primarily rewriting it on the fly.

In the previous, this energy was hardly ever used, nevertheless it has been exercised increasingly more in recent times. Observers have expressed concern that, ought to Hong Kong courts apply the nationwide safety regulation extra leniently than Beijing would need, the nationwide authorities might step in to drive them to do in any other case.

And responding to a query about such interventions by the central authorities, Cheung acknowledged there was little Hong Kong judges might do. “When there is an interpretation, the court must follow,” he mentioned.

In an interview this week, Young famous that the “central and local governments have full confidence in the new Chief Justice,” which might preclude a barrage of interventions in the close to future.

“The first batch of (security law) cases to proceed to the courts will be seen by all as test cases to see the true width and limits of the law,” he mentioned. “My prediction is that there will not be any direct interference from (Beijing) to influence or change the results of these cases.”

Tsang, the Hong Kong historian and director the SOAS China Institute in London, disagreed, nevertheless, predicting the Chief Justice “will come under enormous pressure” in coming years.

“(This) will be extremely difficult for the Chief Justice to resist over the long term, which means that the erosion of judicial independence is unfolding, and unless there is a change of government in Beijing unlikely to relent,” he mentioned.

But Tsang mentioned Cheung, in accepting this function, might have put himself in an inconceivable place.

“The efforts to protect Hong Kong’s judicial independence is now a rearguard operation, and the determination of the Chief Justice to stand fast or not will only determine the pace of this process,” Tsang mentioned. “He is unlikely to be able to hold the line beyond the short-term however determined he may be.”