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Hong Kong Basic Law

Hong Kong justice system must remain free and fair

The justice secretary will normally follow the advice of his director of public prosecutions, and if he rejects it the public should be made aware of his decision and the reasons behind it

PUBLISHED : Saturday, 16 September, 2017, 1:53am
UPDATED : Saturday, 16 September, 2017, 1:53am

The jailing of three student leaders for unlawful assembly last month has reignited a debate about the role of Hong Kong’s top prosecutor, with renewed calls for the director of public prosecutions (DPP) to be given more independence. This follows a media report, not confirmed or denied by the government, that senior prosecutors were overruled by the secretary of justice when the decision was made to seek tougher sentences for the activists from the Court of Appeal.

Accusations of political motivation in activist jailings ‘totally unfounded’

The idea of giving the top prosecutor more independence over such decisions is not new. It was raised when the accountability system for principal officials was introduced in 2002 and has, since then, been discussed in the Legislative Council. The issue concerns the dual role played by the justice secretary and the potential for a conflict of interest. He is a political appointee, a member of the chief executive’s cabinet responsible for implementing government policy, but he is also the head of the Department of Justice and has oversight over criminal prosecutions, which must be handled independently.

Clearly, a perception of political influence is less likely to occur if such decisions are delegated to the DPP. But the Basic Law states criminal prosecutions are to be controlled by the department. The justice minister, as the head of that department, must therefore bear the ultimate responsibility. The Basic Law also requires prosecution decisions to be made “without interference”. The Prosecution Code reinforces this, stating the need for prosecutors to operate free from political influence. Outgoing DPP Keith Yeung Kar-hung, in his final annual report, noted that many recent cases have been controversial and gave a timely reminder that prosecutors are apolitical, making decisions purely on legal grounds.

Sympathy for jailed activists does not justify slurs on judiciary

The justice secretary would normally follow the advice of his DPP. If he rejects that advice, transparency is needed. The public should be made aware of the decision and the reasons behind it. In this way, confidence in the process can be maintained. No evidence has emerged to show that the DPP was overruled in the case of the student leaders. What matters is that the decision to seek higher sentences was justified on legal grounds. It is the court which has the final say and it agreed that prison terms were required.

Yeung, in his report, spoke of the last year being a challenging one for prosecutors, describing the level of public scrutiny as being at an all-time high. More cases with political overtones are on the way. No one should attempt to put political pressure on those administering our legal system. But even if they do, we trust our prosecutors and judges will not be swayed and will continue to make their decisions freely, fairly and in accordance with the law.