• Tue
  • Sep 23, 2014
  • Updated: 9:21am
Beijing White Paper 2014
CommentInsight & Opinion

Under rule of law, an independent judiciary answers to no political masters

Andrew Li says judicial independence goes beyond notions of patriotism, as judges are duty-bound to be fair. Hong Kong must remain vigilant to ensure the rule of law continues to thrive

PUBLISHED : Friday, 15 August, 2014, 6:05am
UPDATED : Friday, 15 August, 2014, 6:05am

The community is expecting anxiously the determination of the Standing Committee of the National People's Congress on the method of electing the chief executive in 2017. When it is made, the process of political reform will advance to a further stage.

Like many of my fellow citizens, I am worried about the increasing polarisation in society today. In the coming months, I hope that there will be rational discussions within the parameters of the Basic Law and that all activities will be conducted within the law. Above all, I hope that all involved will wisely and pragmatically engage in the art of compromise, which is the essence of politics and is in the best interests of the community.

As a former chief justice, it would be inappropriate for me to enter the political arena to engage in this challenging discussion. What I wish to do is to reflect on the rule of law and judicial independence in Hong Kong today.

The rule of law with an independent judiciary is universally recognised as a cornerstone of our society under "one country, two systems". It is a core value which lies at the heart of our separate systems.

It involves three fundamental principles. First, under the rule of law, everyone - both those who govern and those who are governed - is subject to the same laws. This is in contrast to the idea of "rule of man".

Secondly, disputes between citizens and between citizens and government are resolved fairly and impartially by an independent judiciary. Judicial independence is integral to the rule of law, and such independence has two aspects: one, the judiciary is institutionally independent from the executive and the legislature; two, each judge is independent, whether sitting alone or in a collegiate court consisting of more than one judge.

Thirdly, the rule of law involves the effective protection of human rights. As stated in the preamble to the United Nations Universal Declaration of Human Rights, it is essential that human rights should be protected by the rule of law. This distinguishes the rule of law from the concept of "rule by law".

The white paper issued by the State Council in June has raised widespread concern over judicial independence in Hong Kong. The concern is justified.

The English version of the white paper included judges among "those who administrate Hong Kong" (i.e. administer). In Hong Kong, with the separation of powers, the executive, the legislature and the judiciary may be regarded as the three branches of government in the broad sense. The latter two are not part of the executive. Considering that the Chinese version of the white paper used the term zhi gang (which can be translated as the governance of Hong Kong), it would appear that this is what was intended.

Unfortunately, the English version used the word "administrate". This is unfortunate and is unsuitable. This word is usually understood in Hong Kong to refer to the executive authorities (for example, the Tung Chee-hwa, the Donald Tsang or the CY Leung administration). Clearly, the judiciary is not part of the executive. It would be best for this to be clarified. Any concern arising from the use of the word "administrate" in English should be dispelled.

But what is of great concern is the requirement in the white paper that judges should be patriotic. There is no universal definition of patriotism. People may have different views of what constitutes patriotism. A person may be regarded as patriotic by some but not by others.

As widely perceived in Hong Kong, in the context of an official document of the central government, being patriotic would include the connotation of being pro the central and the Hong Kong SAR governments; being supportive of and co-operating with them and protecting their interests.

But under the principle of judicial independence, judges should not be pro or anti anyone or anything. They should be fair and impartial. Judges have no master, political or otherwise. Their fidelity is to and only to the law. They serve the community by adjudicating disputes fairly and impartially according to law. The Basic Law provides that judges shall be chosen on the basis of their judicial and professional qualities and that they exercise their judicial power independently of any interference.

As far as judges are concerned, the legal requirement that they must take the judicial oath is a sufficient and satisfactory arrangement. By this oath, the judge swears to uphold the Basic Law (which in its very first article provides that the Hong Kong SAR "is an inalienable part" of the People's Republic of China), bear allegiance to the SAR, and serve the SAR "conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit".

In discharging their duties, all judges are fully committed to complying with this oath.

Whilst mainland officials may have views on judicial independence different from those held in Hong Kong, I believe that they understand and appreciate the Hong Kong perspective.

I sense that some people are rather gloomy about the future of the rule of law. I do not share their pessimism. The vigilance which has been exercised following the publication of the white paper by the community, including the legal profession, particularly the Bar, is encouraging and heartening. As has been well said, eternal vigilance is the price of liberty. In these controversial times, it is all the more important for the rule of law to remain the unshakeable bedrock of our society.

We must remember that, notwithstanding dire predictions before 1997, the rule of law with judicial independence has continued to thrive after 1997. This has been widely recognised. Whilst we should continue to exercise vigilance, we should not lose heart.

The future of the Hong Kong SAR after 2047 will have to be settled in the early 2030s after lengthy and thorough discussions. The next 10 years in the run-up to those discussions will be of great importance.

The imaginative concept of "one country, two systems" has inherent tensions, and grey areas are bound to exist. We should not now doubt our ability to deal satisfactorily with these tensions and grey areas, as we have done in the years since 1997. I remain confident that, with constant vigilance, the rule of law with an independent judiciary will continue to thrive in the coming years.

Andrew Li Kwok-nang is a former chief justice of the Court of Final Appeal


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This article is now closed to comments

@ sundayatscmp 17AUG 10:06am
a revised previous comment repeted thus:
Can Mexican legislators legislate in the US
US judges adjudicate in Canadian courts
and Canadian lawyers practice in Mexico?
HK’s copycat jurists may learn intellectual honesty
from Cambridge economists about their life works
J Robinson called economics “a national study”
HJ Chang, “the study of political management of the economy”
Is law more scientific than economics?
ALi once declared that law is categorically an art
not knowing the subjective implications of his remark
Economists pursuing their study without loving their countries
like jurists practising national law without loving their countries
are poor souls distancing from their own beings
Fools ignorant of love and themselves
For a good development, personal or national
one must cultivate the art of give and take
and balance reputational and material gains
in various situations
It’s foolish to mistake patriotism as a blind win-all attitude
confining one’s vision to material gains
in all disputes involving one’s country
It’s foolish to mistake common law as the only means to justice
and not to recognized its implantation
as a foreign system of control in HK
Integrity check is a whole person appraisal
to review one’s empathy, priety and propriety
Cultural orphans learnt one-sided formalities
For the milieu of children growing up in a family
read the oath of the english privy council
Shouldn't the Chinese version of the paper supersedes the English version, whenever there is a doubt? That is a standard practice for any multilingual document; the interpretation from one language will supersede the rest, when in doubt.
hard times !
under the rule of law,
there is no master at all,
in the eyes of our judges,
who hand down their verdicts
according to the common law and
Basic Law whether a suspect
is guilty or not guilty !
To say a magistrate should be patriotic
is both absurd and funny in the context
of Hong Kong since we have got
quite a lot of foreign judges !
how can you expect them to be patriotic
to the PRC as they are not Chinese nationality
at all !
Besides,here we practises 'rule of law'
instead of 'ruled by law' as on Mainland
China where the judges have to listen to
the Party which determines the verdicts
of culprits !
here we have got an independent judiciary which
is separated from the administration
it is not unusual to hear that our government
lost a case in court !---a scene unheard of in our great
country across the border at Lowu !
So the white paper is a laughing stock indeed,
I dare say !
except it claims that now the PRC rulers have
fully control Hong Kong and the people's heart ?
which probably not the truth at all !
Right ?
ALi misleads as he is misled
by his pedantry, superficiality and prejudice
He is against using the verb “administrate”
to refer to what judges do because he believes
Hkers associate the verb with executive work
If such fetish with words’ usual meanings in pedestrian usage rules
we’d have to rewrite most of Hk’s statutes and judgments
Instead of his favor for the lofty term “administration of justice”
ALi may henceforth use the bureaucratic sounding “adjudication”
Would “judges among those who [govern] Hong Kong" pleases ALi
who recognizes the judiciary as one of government branches?
Then, would judges seem like Government House operators?
ALi mouths UNUDHR in scholarism fashion
He can’t appreciate the need to reconcile
differences between personal rights and national realities
Art 1 Everyone is born free and equal in dignity and rights
Art 13 (2) Everyone has the right to leave any country
The fact is US beggars can freely enter HK
but HK judges have to apply for permission to enter the US.
His references to RoL and JI are characteristically biased and shallow
With integrity, he should try to apply the same pedantry
to pick on the English legal system
which Ali thought had turned his eyes blue and his scalp yellow
Study the oath of Privy Councilors,
the intricacies of Royal Ascent
Cap 200 s7, s9, …
Mr. Li can hardly be characterized as "shallow". Your distaste for his comment is really a reflection of your political stance. You said, "He (Li) can’t appreciate the need to reconcile differences between personal rights and national realities". Here lies your problem. If judges are to perform their duties, "national realities" should not be part of their consideration in judgement, hence judges should be politically independent. Imagine if a judge say, the defendant has violated the law but considering our "national realities", he is not guilty!! Or, the defendant has really broken no law, but considering our "national realities", he should be jailed!!
Judges rule on evidence according to law, nothing else. So hats off to Mr. Li for a well written article.
Ant Lee
This is like the SCMP before 1997. It has been a long long time since i see a quality article in SCMP. (without the hidden pro-beijing agenda is refreshing)
What a refreshing article.
Unbiased, positive, down to the facts and comprehensive. That is what Hong Kong stands for and reflects on the Hong Kong spirit. Kudos to Mr. Andrew Li !
Hopefully all political camps as well as Beijing take this article to heart (unbiased) and engage into meaningful, sensibel and fruitful discussions to reach and agree on solutions which are truly in the best interest of the Hong Kong people.
I agree with Mr. Li that the focus should be on Hong Kong after 2047. My concern is how to preserve Hong Kongers' way of life post 2047.
So very good to read such a factual, balanced and unemotional article.
Open minded on the future and yet unpessimistic.
Andrew Li truly shows the high quality we are lucky to have enjoyed so far at the top of HK's judicial tree.


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