• Sat
  • Sep 20, 2014
  • Updated: 9:12pm
CommentInsight & Opinion

'Two systems' means no compromise of judicial independence

PUBLISHED : Tuesday, 17 June, 2014, 3:57am
UPDATED : Tuesday, 17 June, 2014, 9:28am

If there is one thing that defines the concept of "one country, two systems" and sets Hong Kong apart it is the independence of the city's judges. The rule of law as we know it in Hong Kong depends absolutely on judicial independence. This difference from the mainland is so fundamental to "two systems" that it is to be expected that it will be vigorously defended if it becomes the subject of debate in Beijing's policies towards Hong Kong. That is the case with the publication by the central government of a white paper outlining Beijing's "comprehensive jurisdiction" over the city.

The Bar Association has taken particular exception to its categorisation of judges as administrators with political roles, and the basic requirement to love the country. The association's response that this is erroneous contrasts with the Law Society's reaction to the white paper, as we report today.

In their judicial oaths, judges swear allegiance to Hong Kong, under "one country, two systems", which is not inconsistent with loyalty to country or taking into account national security and interests. They honour that oath when they adjudicate freely, fairly and fearlessly, including ensuring that the government acts in accordance with the law.

Defending the white paper, Secretary for Justice Rimsky Yuen Kwok-keung said the term administrators meant judges were part of the political structure, not the governance team. He says there is no conflict with a remark by the Bar Association in 2008 (when he was its chairman) that "the judiciary … is not, and should not be regarded as, part of the governance team."

This was prompted by a statement by Xi Jinping, then vice-president, that he expected "mutual understanding and support" from the three branches of the city's government - the executive, the legislature and the judiciary. Xi's call reflects the mainland system, designed to be a harmonious framework rather than one of checks and balances.

Since the handover, Beijing has kept its promise that our capitalist way of life will continue, including the independence of our judiciary. The fact that the Bar Association has raised the issue is testament to the importance of the latter. Beijing perceives excessive emphasis on "two systems" at the expense of "one country". In that respect the white paper asserts its authority and the primacy of "one country". This may call for compromise over arrangements for the chief executive election in 2017. But if "two systems" is to mean anything there can be no compromise of judicial independence.

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321manu
"Nowhere is any judiciary ever desired for the sake of its independence
which is neither a necessary nor a sufficient condition for justice
The public’s only expectation for the judiciary
is that it should fairly adjust its relations with other government branches
to get the most possibly just decision for the people"
---this stanza uses a lot of words and invokes a lot of concepts, but has no precision whatsoever.
First of all, what is meant by "justice"? If JI is not necessary for "justice", then what is? If JI is not sufficient for "justice", then what would be? Without first identifying the determinants of "justice", the first sentence is completely without basis.
And who/what determines what the "most possibly just decision for the people" would be? If a judgement is unpopular, does that make it unjust? Is everyone a legal expert now? Can anyone be a judge?
The whole paragraph is filled with platitudes that say nothing, and mean nothing.
pslhk
A Kennedy, US Supreme Court Justice,
often likens the three government branches
to planets in the solar system
with balanced centrifugal and centripetal forces
to keep them from collision nor moving apart
-
JI is a practical and not a theoretical issue
that only simpletons would seek a dichotomous resolution
In HK, it is often over-emphasized for ulterior motives
-
Early this century when the city suffered from AFC and SARS
Legco / execo members and the civil service all accepted salary reductions
to show their solidarity with the people
Only the judiciary refused to budge
Such pigheaded insensitivity epitomizes the ex-colony’s JI
-
Nowhere is any judiciary ever desired for the sake of its independence
which is neither a necessary nor a sufficient condition for justice
The public’s only expectation for the judiciary
is that it should fairly adjust its relations with other government branches
to get the most possibly just decision for the people
sjfore
Oh, for heaven's sake. Judicial independence is a necessary precondition for the preservation of justice, full stop. How can you possibly suggest otherwise? What examples can you name of non-independent judiciaries that co-exist harmoniously with the idea and material reality of justice?
pslhk
sjfore
-
“JI is a precondition of justice”
-
Unless you clarify what you mean by JI and justice
yours may be simply a vacuous slogan a la scholarism
DinGao
CJ, 17 March 2014: "The prescribed constitutional model for Hong Kong involves the separation of powers. Article 2 of the Basic Law states that Hong Kong will enjoy "executive, legislative and independent judicial power, including that of final adjudication, in accordance with the relevant provisions of [the Basic Law]". The concept of independent judicial power is reiterated in two further articles: Articles 19 (Note 18) and 85 (Note 19). Thus contained in the three provisions of the Basic Law, the independence of the judiciary in Hong Kong could not be put more clearly or emphatically."
The power then comes from the Basic Law. And the Basic Law comes from the Joint Declaration.
321manu
This seems like a fair assessment. And I wouldn't assume 2S to mean anything for HK moving forward. The CCP is moving in, and with that comes a politicized judiciary, since that is all they know.
 
 
 
 
 

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