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Occupy Central

Integrity of Hong Kong judiciary must not be taken lightly, whatever the stance on activists’ jailing

Bernard Chan says glib accusations of political interference in the courts will seriously damage the reputation of our independent judiciary, on which Hong Kong’s well-being depends

PUBLISHED : Thursday, 31 August, 2017, 12:01pm
UPDATED : Thursday, 31 August, 2017, 7:09pm

The recent Court of Appeal ruling on activists Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang has created great controversy locally and internationally.

Given the context of the Occupy movement and other protests, controversy is hardly surprising. With other cases involving young protesters under way, more is sure to come.

It is reasonable to debate the use of civil disobedience as a means of protest, and people are free to argue whether the charges and sentences in this case were right or wrong. It is also reasonable – and important – that we ask how the government can address unhappiness among the young.

But we need to be careful when discussing the courts and judiciary. It is essential that we do not accuse them – with no evidence – of acting wrongly. In particular, it is seriously out of order to accuse them of making rulings under political pressure.

Maybe the overseas press was influenced by critical voices – or even by the fact that an official English-language version of the ruling only became available this week. The fact is that there is no way critics could know what was going on in the three judges’ minds.

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The court’s ruling made specific points about the original sentencing in the magistrate’s court. Among other things, the trial magistrate considered the case as not involving serious violence and failed to consider whether the sentence should include an element of deterrence.

Whatever you might think about the appeal court’s revised sentences, these points do not sound politically driven or biased. Indeed, they seem factual and valid. As other commentators have pointed out, our system gives the defence plenty of scope to plead for leniency in court, while the prosecution gets far less say. When you consider this, the appeal court’s ruling also makes sense.

Politics played no part in Hong Kong court’s decision to jail young activists

However, this is not just about whether it is fair to accuse judges of political bias. It is about whether we should risk damaging the reputation of our courts by making such serious accusations. This is why so many representatives of the legal profession have come together in defence of the Court of Appeal – and of all the judiciary. The Bar Association and the Law Society issued a rare joint statement criticising “unfounded comments” that judicial decisions were politically influenced. Former chief justice Andrew Li Kwok-nang described the allegation as “irresponsible”.

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Some of these voices are more on the opposition than pro-government side. Some might not even have agreed with the ruling. But they all spoke out strongly to reject the idea the court was acting under political pressure. They did so because judicial independence is of supreme importance to Hong Kong. It is a core value that guarantees the rights and freedoms of our people, and is essential to our success as a business centre.

The worry is that accusing our courts and judges of being politically motivated will undermine their reputation for integrity. This would undermine confidence in our legal institutions, and once that goes, confidence in Hong Kong as a whole will go.

Such potentially damaging comments demand a stiff response ... The legal profession needed to step in

Such fears might seem overdone. But we must put this in the context of some quite extreme comments from not just local but overseas media and politicians. Some of the reports and commentary essentially gave the impression that Hong Kong courts have followed political orders to sentence prisoners of conscience.

Such potentially damaging comments demand a stiff response. The judges themselves can’t get into such a debate, and sceptics here and overseas are not going to accept our own officials’ denials. The legal profession needed to step in and counter such damaging allegations.

With a society so divided, the government would come under fire whether it appealed against the original sentences or not. The secretary for justice and other officials have answered criticism of their decision-making fully. But spreading fears that the judiciary’s independence has been undermined is a step too far. This case may end up in the Court of Final Appeal. If that happens, hopefully any doubts about the integrity of our legal system will be put to rest – whatever the ruling.

Bernard Chan is convenor of Hong Kong’s Executive Council