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Occupy Central

Independent judicial process deserves the utmost respect

Vitriol against judge who sent police officers to jail for assault is an attack on what has made Hong Kong the success that it is

PUBLISHED : Wednesday, 22 February, 2017, 4:35am
UPDATED : Wednesday, 22 February, 2017, 4:35am

Controversial court cases often ignite strong public comment and emotive debate. This is to be expected. Judges are not immune from criticism and their decisions should be open to scrutiny. But some of the reaction to last week’s jailing of seven police officers for assaulting an Occupy activist has gone beyond reasoned opinion. The British judge who imposed the sentences, David Dufton, has been subjected to abuse and even threats. While it is understandable that some will not have agreed with the two-year sentences, comparing them to others imposed in Occupy cases, that does not justify such attacks on the judge, especially those based on his nationality.

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Now, critics are raising broader questions about the role of Hong Kong’s judiciary and the participation of foreign judges. It is important the judicial process and the function of the courts under the “one country, two systems” concept are properly understood.

Foreign judges have played a significant role in the development of Hong Kong’s legal system both before and after the city’s return to Chinese sovereignty in 1997. This is in keeping with the city’s international image and their participation has helped maintain high standards. It is why the Basic Law – Hong Kong’s mini-constitution – expressly provides for foreign judges to sit in the courts, including the Court of Final Appeal. Dufton has been a lawyer in Hong Kong since 1982 and a member of the judiciary since 1994. It cannot be said that he lacks knowledge of Hong Kong.

The role of the city’s judges is also spelled out in the Basic Law. They enjoy independent judicial power and are free to decide cases without interference. The common law system inherited from Britain is preserved. Judicial review, in which the courts decide whether the government has acted within the law, is also provided for. These are fundamental features of the constitutional arrangements put in place for Hong Kong’s return to China. Increasingly, judges are required to consider cases with political overtones. The police assault case is one example. Such cases give rise to strong opinions and emotions that are politically driven. But the judicial process is not a political one. It involves the careful consideration of evidence and application of legal rules. Judges in criminal cases do not pluck sentences out of thin air. They assess the facts in the light of established principles. The appeal process allows their decisions to be reviewed by higher courts.

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This apolitical, independent, rule-based process lies at the heart of the city’s separate legal system and underpins Hong Kong’s success as a financial centre. Judges must continue to decide cases strictly according to the law, especially sensitive ones such as those involving the Occupy protests. Their decisions will, very likely, upset one side or the other. But the process must be respected.