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

Sat in the city’s Court of Final Appeal, carrying a black gown, ruffed white collar and white face masks, Chief Justice Andrew Cheung acknowledged the strangeness of the circumstances as he addressed a small viewers of judicial officers and others watching on-line.

“The Covid-19 pandemic has taken a great toll everywhere,” Cheung mentioned. “The judiciary and its operations have also been affected, and thanks must be extended to our judiciary staff who have worked so hard in such difficult circumstances to keep the courts functioning.”

That regulation criminalizes acts of secession, subversion, terrorism and collusion with overseas forces, and carries with it a most sentence of life imprisonment.

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.

Last week, 53 opposition activists, a lot of them former lawmakers, were arrested under the law, accused of subversion for participating in a main ballot designed to select candidate for legislative elections final yr — elections that have been subsequently postponed due to the pandemic.
All however a kind of arrested have since been bailed. But their instances, together with the other dozen or so people arrested under the law, will devour a lot of the courts’ focus in the coming yr. Close consideration can be paid to how the courts apply the sweeping and thus far largely untested regulation, which was straight imposed by Beijing, bypassing Hong Kong’s semi-democratic legislature, and incorporates clauses which can battle with present constitutional and treaty protections for speech and meeting.

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

Throughout its century-and-a-half as a British colony, the rule of regulation — equality earlier than the courts, due course of, and the presumption of innocence — came to be seen as the city’s “defining ideology,” one which helped Hong Kong turn out to be a world monetary capital, a protected harbor for companies to select as their Asian headquarters assured that their rights can be protected, in distinction to the typically arbitrary train of justice elsewhere in the area.

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.

China’s legal system stands in stark distinction to Hong Kong’s, being extremely politicized and nearly fully managed by the ruling Communist Party. In felony instances, some 99% of prosecutions finish in a responsible verdict, and sentences can often be wildly inconsistent, relying on political circumstances, even when the info of the case are related. In civil issues, firms and defendants can’t be assured the courts will shield their rights in the event that they battle with the wider political or financial targets of the Chinese state.

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.

Such a broad and sweeping regulation would pose a problem for the courts to interpret in the better of instances, however the safety laws has been accompanied by a climate of immense pressure on the judiciary to ship harsh sentences to protesters and different dissidents, related to how instances are dealt with in China.
Judges seen as overly lenient or sympathetic towards protesters have been attacked in Chinese state media and pro-Beijing newspapers in Hong Kong. Writing in the state-run China Daily late last year, one commentator mentioned that “in theory, judges must not take political sides in a court of law, but in Hong Kong many members of the public now see some judges as ‘yellow judges’ who practice political favoritism for offenders from the opposition camp.”
In November, Zhang Xiaoming, one among the prime Chinese officers in Hong Kong, mentioned “reforms” have been wanted for the city’s judiciary, and “the word ‘patriotism’ should be added before the core values ​​of democracy, freedom and human rights advocated by Hong Kong society.”

“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.

“Respect for autonomy and Hong Kong’s authority to discharge its duties under the new law requires the (National People’s Congress) to exercise restraint in its power of interpretation,” wrote Simon Young, a regulation professor at the University of Hong Kong, when the regulation was first promulgated. “Excessive intervention will destroy the separate systems model and cause great legal instability.”
But feedback made by Zhang and different officers, comparable to declaring that there exists no “separation of powers” in Hong Kong, counsel a central authorities unwilling to sit by and let the city’s courts determine as they please.

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.

In his final address this month, Cheung’s predecessor, Geoffrey Ma, urged him “always to be guided by your principles, for it is these principles that will see you and the community through all seasons.”

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.”

CNN’s Eric Cheung contributed reporting.

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