Hong Kong’s judges must remain above the fray, as should Chinese leaders with their comments on our judiciary
Cliff Buddle says it’s important that Hong Kong’s judiciary is not just independent, but is also seen to be so, and state leaders should be careful not to give the impression of applying pressure on judges
Whenever central government officials comment on Hong Kong’s judiciary, they court controversy. State leader Zhang Dejiang’s (張德江) remarks about the rule of law during his brief visit to the city last week were no exception.
The speeches he made in Hong Kong were generally well received and moderate in tone. Zhang, chairman of the National People’s Congress, did not shy away from sensitive topics and stressed the importance of adhering to the “one country, two systems” concept. He made a point of distinguishing between localism and calls for Hong Kong independence, stating that the city’s “compatriots should be respected for cherishing their characteristic way of life and values”.
The importance Zhang attached to maintaining Hong Kong’s separate system is welcome, amid growing concerns about an erosion of the city’s autonomous powers and separate identity.
But his comments about the judiciary were not so well received. Zhang, the first state leader to visit Hong Kong since the Occupy protests of 2014, described the rule of law as being one of the city’s core values. No one would argue with that.
However, he went on to say: “Everyone is equal before the law, no one can act above the law, and no offenders can evade legal sanctions for any reason. We hope that the SAR government and the judiciary will effectively fulfil the sacred duty of maintaining the rule of law while strictly enforcing laws and ensuring fair administration of justice.”
Zhang added: “We must not make concessions to law-violating behaviour. Society as a whole should also severely condemn such behaviour, which clearly touches on the bottom line of the rule of law.” He did not elaborate further.
His remarks are open to different interpretations.
For some, his comments were a reference to the Occupy protests and the more recent Mong Kok riots. They imply the government or the judiciary (or both) has tolerated illegal behaviour and allowed offenders to escape punishment.
Certainly, during the Occupy protests, the illegal occupation of parts of the city was tolerated – but with good reason. The use of tear gas by the police, when the demonstrations began, inflamed public sentiment and caused an escalation of the protests. Allowing the protests to continue for 79 days might be seen as a shirking of responsibility by the government. But the aim was to avoid inflaming the situation and, in the end, the protests fizzled out.
It is more likely Zhang had in mind the perceived failure to punish a number of suspects involved in the Occupy and Mong Kok riots.
Since Occupy, the judiciary has come under fire from pro-establishment groups and politicians for what they see as judges letting offenders off the hook.
The Department of Justice felt the need, last year, to issue a statement reminding people of the importance of the independence of the judiciary. This followed the use of slogans such as “The police arrest, the courts release” by critics of the courts.
The judges and magistrates who have to try these politically sensitive criminal cases cannot please everyone – nor should they try to. Their job is to put all political considerations aside and to decide the cases strictly according to the law.
That is precisely what they appear to have done. Of the 51 suspects initially charged for alleged involvement in the Mong Kok riots, 11 have been discharged. In all of those cases, the charges were withdrawn by the prosecution because there was simply not enough evidence.
Zhang said no offenders can evade legal sanctions for any reason. In theory, of course, that is what every society wants. But one exception, under Hong Kong’s legal system, is where the evidence is not sufficient to support a conviction. Otherwise, we run the risk of innocent people being punished.
It is worth recalling the famous maxim: “It is better that 10 guilty persons escape than one innocent suffer.” That lies at the heart of the city’s criminal justice system and is supported by Article 87 of the Basic Law, which protects the presumption of innocence.
The police were dealing with chaotic scenes in Mong Kok in February. It is not surprising if some people were suspected of committing crimes but not convicted because, after further investigation, there was insufficient evidence to prove the allegation beyond reasonable doubt.
It has been a similar story with the Occupy protests. Some offenders have been released, others convicted, some still face charges. This suggests the evidence is being weighed carefully by the prosecution and the courts.
Central government officials have drawn controversy with comments about the judiciary in the past. Xi Jinping ( 習近平 ), as vice-president in 2008, stated there should be “mutual understanding and support among the executive authorities, the legislature and the judiciary”, prompting a defence of judicial independence from the Bar Association.
The State Council’s White Paper in 2014 raised concerns when it described judges as administrators with a basic political requirement to love the country.
Last September, Zhang Xiaoming (張曉明), director of the central government’s liaison office, stirred much debate with a speech in which he described the chief executive as transcending the judiciary.
Such comments create a public perception that pressure is being applied to the judiciary, whether or not that is the intention. Zhang Dejiang’s comments were mild and it was not clear precisely what was concerning him. But, over time, there is a danger that repeated controversies of this kind undermine public confidence in our legal system.
The independence of the judiciary is a core feature of Hong Kong’s rule of law. The judges are not there to punish everyone the police arrest, or to support the government. They must uphold the law and ensure the legal process is fair. As former chief justice Andrew Li Kwok-nang wrote in 2014, “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.”
This is of fundamental importance to Hong Kong’s legal system and forms part of the original intention behind the “one country, two systems” concept, which Zhang himself stressed we must not forget.
Cliff Buddle is the Post’s editor, special projects