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

Sat within the metropolis’s Courtroom of Last Attraction, 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 an excellent toll all over the place,” Cheung mentioned. “The judiciary and its operations have additionally been affected, and thanks have to be prolonged to our judiciary workers who’ve labored so exhausting in such troublesome circumstances to maintain the courts functioning.”

That legislation criminalizes acts of secession, subversion, terrorism and collusion with international 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 legislation can be restricted in impact, and solely goal a small variety of fringe activists. Nevertheless, critics allege that since its introduction, the legislation has been used to forcefully stamp out the town’s previously vibrant pro-democracy motion.

Final week, 53 opposition activists, lots of them former lawmakers, had been arrested underneath the legislation, accused of subversion for collaborating in a major ballot designed to decide on candidate for legislative elections final yr — elections that had been subsequently postponed because of the pandemic.
All however a kind of arrested have since been bailed. However their circumstances, together with the different dozen or so folks arrested underneath the legislation, will devour a lot of the courts’ focus within the coming yr. Shut consideration will probably be paid to how the courts apply the sweeping and to date largely untested legislation, which was straight imposed by Beijing, bypassing Hong Kong’s semi-democratic legislature, and accommodates clauses which can battle with current 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 legislation.

In his speech, and in a press convention afterward, Cheung averted discussing the specifics of the legislation, arguing that to take action was inappropriate, given it would quickly be mentioned in court docket. However he got here again to at least one key level time and again.

“It’s my mission to do my utmost to uphold the independence and impartiality of the Hong Kong judiciary,” Cheung instructed reporters. “That’s my mission, and I’ll do my finest to satisfy that mission.”

Such independence could also be sorely examined within the coming yr, and if misplaced may have nice prices for Hong Kong’s authorized system and basic freedoms. In a speech following Cheung’s, Philip Dykes, head of the town’s Bar Affiliation, famous that “with out judicial independence, a pearl of nice value, we would as nicely pack up our baggage and steal away, for Hong Kong is nothing with out it.”

Rule of legislation

All through its century-and-a-half as a British colony, the rule of legislation — equality earlier than the courts, due course of, and the presumption of innocence — got here to be seen as the town’s “defining ideology,” one which helped Hong Kong turn out to be a worldwide monetary capital, a secure harbor for companies to decide on as their Asian headquarters assured that their rights can be protected, in distinction to the customarily arbitrary train of justice elsewhere within the area.

When Hong Kong was handed over to the Folks’s Republic of China in 1997, the town’s new rulers, eager to not disrupt their financial dynamo, had been cautious to pay lip service to the significance of the rule of legislation and impartial judiciary to Hong Kong’s continued success underneath the precept referred to as “one nation, two methods.”

Hong Kong’s authorized system didn’t all the time have the stellar fame 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 language topics would entry justice.

“In colonial Hong Kong, racial bigotry and prejudice added to the social injustice inherent within the sturdy class division in Victorian Britain, and so they had been mirrored within the working of the courts,” writes Steve Tsang in “A Fashionable Historical past of Hong Kong: 1841-1997.” The language of the courts was English, and interpreters had been hardly ever supplied — which means many Chinese language defendants had been unaware of what was occurring as they had been railroaded by an unfamiliar authorized system and unsympathetic judges.

Nevertheless, Tsang notes that even within the early years, when discrimination was rife, the “rule of legislation decided the construction and procedures of the authorized system, restrained some governors from pursuing sure insurance policies dangerous to the area people and helped to safe the acquittal of many wrongly accused.”

Put up-1997, the rule of legislation additionally helped restrict the town’s new rulers. Because of its sturdy protections for speech and meeting, Hong Kong retained a vibrant political and media scene in contrast to something seen in China, with annual demonstrations — such because the June four memorial for the Tiananmen Sq. bloodbath — iconic of those freedoms.

Hong Kong's Court of Final Appeal building, seen in January 2018.

However the battle between the nation and the 2 methods it accommodates has grown over time, reaching breaking level lately.

China’s authorized system stands in stark distinction to Hong Kong’s, being extremely politicized and nearly utterly managed by the ruling Communist Occasion. In prison circumstances, some 99% of prosecutions finish in a responsible verdict, and sentences can typically be wildly inconsistent, relying on political circumstances, even when the information of the case are comparable. In civil issues, corporations and defendants can’t be assured the courts will shield their rights in the event that they battle with the broader political or financial objectives of the Chinese language state.

The prospect of being topic to Chinese language justice, by means of an extradition invoice with the mainland, sparked the anti-government unrest that rocked Hong Kong in 2019. But whereas the protests had been profitable in defeating the proposed laws, in addition they prompted the eventual imposition of the nationwide safety legislation final yr, creating a variety of political crimes and undermining protections contained inside Fundamental Legislation, 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 legislation would pose a problem for the courts to interpret in one of the best of instances, however the safety laws has been accompanied by a local weather of immense stress on the judiciary to ship harsh sentences to protesters and different dissidents, just like how circumstances are dealt with in China.
Judges seen as overly lenient or sympathetic towards protesters have been attacked in Chinese language state media and pro-Beijing newspapers in Hong Kong. Writing within the state-run China Day by day late final yr, one commentator mentioned that “in idea, judges should not take political sides in a court docket of legislation, however in Hong Kong many members of the general public now see some judges as ‘yellow judges’ who apply political favoritism for offenders from the opposition camp.”
In November, Zhang Xiaoming, one of many prime Chinese language officers in Hong Kong, mentioned “reforms” had been wanted for the town’s judiciary, and “the phrase ‘patriotism’ must be added earlier than the core values ​​of democracy, freedom and human rights advocated by Hong Kong society.”

“We should defend the town’s rule of legislation, however we should additionally safeguard the nationwide constitutional order,” Zhang mentioned, including that many “issues” had been uncovered in Fundamental Legislation that wanted to be addressed.

Judicial rear guard

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

“While the liberty of speech of everybody in society have to be totally revered, there should not be any try to exert improper stress on the judges within the discharge of their judicial features,” Cheung mentioned. “Judges have to be fearless and be ready to make selections in accordance with the legislation, no matter whether or not the outcomes are standard or unpopular, or whether or not the outcomes would render themselves standard or unpopular.”

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

Below the Fundamental Legislation, whereas Hong Kong has a “Courtroom of Last Attraction,” the true arbiter of the town’s structure is China’s Nationwide Folks’s Congress, the nation’s rubber-stamp parliament, which may challenge “interpretations” of varied articles of the Fundamental Legislation — primarily rewriting it on the fly.

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

“Respect for autonomy and Hong Kong’s authority to discharge its duties underneath the brand new legislation requires the (Nationwide Folks’s Congress) to train restraint in its energy of interpretation,” wrote Simon Younger, a legislation professor on the College of Hong Kong, when the legislation was first promulgated. “Extreme intervention will destroy the separate methods mannequin and trigger nice authorized instability.”
However feedback made by Zhang and different officers, resembling declaring that there exists no “separation of powers” in Hong Kong, recommend a central authorities unwilling to take a seat by and let the town’s courts resolve as they please.

And responding to a query about such interventions by the central authorities, Cheung acknowledged there was little Hong Kong judges may do. “When there may be an interpretation, the court docket should observe,” he mentioned.

In an interview this week, Younger famous that the “central and native governments have full confidence within the new Chief Justice,” which may preclude a barrage of interventions within the close to future.

“The primary batch of (safety legislation) circumstances to proceed to the courts will probably be seen by all as take a look at circumstances to see the true width and limits of the legislation,” he mentioned. “My prediction is that there won’t be any direct interference from (Beijing) to affect or change the outcomes of those circumstances.”

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

“(This) will probably be extraordinarily troublesome for the Chief Justice to withstand over the long run, which implies that the erosion of judicial independence is unfolding, and until there’s a change of presidency in Beijing unlikely to relent,” he mentioned.

In his ultimate handle this month, Cheung’s predecessor, Geoffrey Ma, urged him “all the time to be guided by your rules, for it’s these rules that may see you and the group by means of all seasons.”

However Tsang mentioned Cheung, in accepting this function, could have put himself in an not possible place.

“The efforts to guard Hong Kong’s judicial independence is now a rearguard operation, and the dedication of the Chief Justice to face quick or not will solely decide the tempo of this course of,” Tsang mentioned. “He’s unlikely to have the ability to maintain the road past the short-term nevertheless decided he could also be.”

CNN’s Eric Cheung contributed reporting.

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