Strength of Hong Kong's judiciary should be an example to the mainland

Frank Ching says the chief justice's affirmation of an independent judiciary was a clear reminder of the gulf between the HK and mainland systems

PUBLISHED : Wednesday, 16 January, 2013, 12:00am
UPDATED : Wednesday, 16 January, 2013, 2:41am

Judges, in Hong Kong and elsewhere, are supposed to remain above the rough and tumble of politics and, when controversy whirls around them, they remain calm and, yes, judicious. Certainly, they do not ordinarily hold press conferences to defend their actions or explain their point of view.

Recently, judges have been more in the news than usual. Former justice secretary Elsie Leung Oi-sie publicly said some judges do not have a proper understanding of the relationship between Hong Kong and the central government, and the non-permanent Court of Final Appeal judge Kemal Bokhary warned that "storm clouds of unprecedented ferocity" were gathering over the courts.

Through all these controversies, the judiciary has remained silent. But, once a year, the official opening of the legal year provides an opportunity for the chief justice to deliver a speech that is listened to not only by the legal fraternity but by politicians as well.

This was the case on Monday, when Chief Justice Geoffrey Ma Tao-li acknowledged in his speech that "the law and the judiciary have very much been the focus of discussion by many people from all walks of life". Ma did not mention the government's suggestion that the court seek a clarification on right of abode matters from the National People's Congress Standing Committee, though he did refer obliquely to "immigration matters".

The chief justice did reject a suggestion that only Chinese nationals should serve as judges, citing the Basic Law, which says that "judges from other common law jurisdictions" may be invited to sit on the top court. He said foreign judges had made a significant contribution to Hong Kong's jurisprudence. With overseas guests and local law students in the audience, the chief justice explained the constitutional role of judges and upheld the need for the integrity of the law. "No one, no institution is above the law," he declared.

He also explained that, save for limited exceptions, all proceedings in court are open to the public and added that the court's reasoning is provided in a judgment available to all so that anyone can see exactly how the court has applied the law.

To this listener, at least, these words underlined the gulf that exists between the Hong Kong legal system and that on the mainland. There, assertions are also made routinely that no individual or organisation is above the law and the constitution. But, unfortunately, those assertions are hollow. The mainland also says that its trials are open, except that it routinely excludes reporters, foreign diplomats and sometimes relatives of the accused and even lawyers hired by them.

But, more to the point, mainland judges are not trained to provide legal opinions as they are understood in Hong Kong. In fact, even interpretations by the NPC Standing Committee are not backed by substantive legal reasons.

The maintenance of an independent judiciary is absolutely vital to Hong Kong. Hopefully, in time, the mainland will also come to understand its value.

Frank Ching is a Hong Kong-based writer and commentator. Follow him on Twitter: @FrankChing1