Judicial independence of vital importance

PUBLISHED : Friday, 15 January, 2010, 12:00am
UPDATED : Friday, 15 January, 2010, 12:00am

Hong Kong people enjoy basic freedoms that set our city apart from the mainland, thanks to the preservation of the rule of law. Chief Justice Andrew Li Kwok-nang, in the job since the handover, has deservedly received many plaudits for maintaining confidence in our legal system. As a result, his annual speech at the opening of the legal year is keenly anticipated. He is not known for engaging directly in controversy, but he does not shy away from it. This year was no exception. It was his last speech at the ceremony before his retirement in August. The top judge's emphasis on the importance of the independence of the judiciary and the separation of powers is important. It is a reminder that these principles lie at the heart of Hong Kong's separate system. Vigilance is needed to ensure they are not eroded.

He made no reference in his speech to last month's remarks by a senior official from the State Council's Hong Kong and Macau Affairs Office, praising the Macau judiciary for co-operating with that city's government; nor to Vice-President Xi Jinping's comment during a visit to Hong Kong in 2008 that the three branches of government - the executive, legislative and judicial branches - should give each other mutual support and understanding. Li later denied he was responding to anyone. But he pointedly added that he felt the role of Hong Kong's independent judiciary needed to be clearly explained for everyone's understanding.

The rule of law is rightly regarded as one of the pillars of Hong Kong's success. It protects our freedoms, provides a level playing field for doing business and guards against abuse of power. Under the system of checks and balances between the three branches, an independent judiciary has a vital role in ensuring that the executive and the legislature comply with the Basic Law, and that our fundamental rights and freedoms are safeguarded. The ability of businesses to have disputes settled fairly by independent judges in is also vital to Hong Kong's competitiveness.

The vice-president, by contrast, comes from a hierarchical political culture that does not expect the different branches to work as checks and balances on one another, but rather, within a single harmonious framework. The mainland judiciary lacks independence from government and, indeed, from the party itself. It does not function as a check on the abuse of power or people's rights.

One legal development in recent years is the growing use of the judicial review process to challenge administrative and legal decisions, often resulting in them being struck down in the courts. Li dismissed speculation that the process was being abused and urged reflection on why so many were resorting to judicial review.

So long as Hong Kong does not have an elected government or a fully democratic legislature, judicial reviews are likely to remain a popular avenue of redress. Their growing popularity, however, is part of an international trend. Meanwhile, it is crucial that people continue to believe they can go to court and receive a fair hearing, even in sensitive cases involving the government. The independence of the judiciary is therefore of paramount importance, as is the choice of Li's successor.