A duty to defend our independent judiciary

PUBLISHED : Monday, 08 February, 2010, 12:00am
UPDATED : Monday, 08 February, 2010, 12:00am

Next month, the Judicial Officers Recommendation Commission will give Chief Executive Donald Tsang Yam-kuen its nomination for the next chief justice, who will succeed Andrew Li Kwok-nang in August.

This is a key moment in Hong Kong's history as a special administrative region. There is general agreement that, despite the controversy over universal suffrage, our saving grace is the continuing independence of the judiciary. And Li deserves credit for the contributions he has made during his tenure as the first post-handover chief justice.

Although he has not reached mandatory retirement age, Li is stepping down, no doubt to make room for a younger man who can be expected to remain in office for a considerable time.

Even though the Basic Law provides for 'independent judicial power, including that of final adjudication', it is necessary to remain vigilant to ensure that the principle of an independent judiciary is not eroded, because the mainland does not have such a tradition. Indeed, the mainland's judiciary accepts orders from the executive, which itself is under the authority of the Communist Party. So, when Vice-President Xi Jinping was in Hong Kong in 2008, he asked the executive, legislative and judicial branches of government to provide support and understanding to each other.

Hong Kong's chief justice, of course, is not supposed to make political speeches. However, last month, in delivering his last address to mark the opening of the legal year, Li did insist that 'each jurisdiction has its own constitutional arrangements distributing power between the executive, legislative and judicial branches' and 'the arrangement for one jurisdiction may not be appropriate for another'.

'Hong Kong's system involves checks and balances between the executive, the legislature and the judiciary,' he said. 'The independent judiciary has a vital constitutional role to ensure that the acts of the executive and the legislature comply fully with the Basic Law and ... that our fundamental rights and freedoms ... are fully safeguarded.'

These things needed to be said, and in a non-confrontational fashion. It is important that Beijing should understand that Hong Kong has a different tradition and that it is vital to preserve it. It is even more important that Hongkongers do not forget their traditions and values.

Li also explained that, when judges deal with cases, 'they simply administer justice without fear or favour'. If the government loses a case, he explained, 'the court is not seeking to confront them'. And when the government wins a case, 'this is not the result of the court seeking to favour them'.

These things also needed to be said - and need to be said again from time to time, so they are not forgotten. They need to be understood by people outside Hong Kong, too. So it is good that the Hong Kong judiciary has been inviting visitors from other jurisdictions, including mainland judges and politicians. This year, for example, visitors included luminaries from other common-law jurisdictions, as well as the vice-president of the Supreme People's Court, Wan Exiang, and Zhang Fusen, a former justice minister and now an official of the Chinese People's Political Consultative Conference.

Now, a quarter of Hong Kong's designated lifetime as a special administrative region has passed. Li said that, during this period, 'judicial independence has been universally recognised and accepted to be of pivotal importance to Hong Kong'.

It is important that the next chief justice should be a safe pair of hands and that, during his time in office, Hong Kong's judicial independence continues to be strongly defended.

Li has strongly affirmed that 'the process of judicial appointment should never be politicised'. Doing so would inevitably jeopardise the judiciary's independence.

Frank Ching is a Hong Kong-based writer and commentator.