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  • Nov 19, 2014
  • Updated: 8:58pm
Beijing White Paper 2014
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white paper

Hong Kong barristers hit out at Beijing’s white paper, vow to protect judicial independence

Bar Association criticises the placing of judges in same category as top officials as 'erroneous' and pledges to defend judicial independence

PUBLISHED : Wednesday, 11 June, 2014, 3:02pm
UPDATED : Thursday, 12 June, 2014, 12:55pm
 

Barristers have come out in strong defence of Hong Kong's judicial independence, a day after the central government published an unprecedented white paper outlining Beijing's "comprehensive jurisdiction" over the city.

The Bar Association said it was "erroneous" for Beijing to place local judges in the same category as "Hong Kong's administrators", including the chief executive and top officials.

People need not be overly sensitive or read too much into certain wordings
RIMSKY YUEN KWOK-KEUNG

While courts elsewhere might "sing in unison" with the government, that was not the case in Hong Kong, it said.

"Any erroneous public categorisation of judges and judicial officers as 'administrators' or official exhortation for them to carry out any political mission or task" would send out the wrong message to Hongkongers and the international community, it said.

In the white paper, issued by the State Council on Tuesday, Beijing suggests judges "have on their shoulders the responsibility of correctly understanding and implementing the Basic Law".

It also says administrators - including, for Beijing, judges - have a "basic political requirement" to love the country.

The Bar Association took exception to the paper categorising judges as administrators and officially ordering them to fulfil political roles.

That sent out a message that Hong Kong courts were not independent, it said.

Secretary for Justice Rimsky Yuen Kwok-keung disagreed with the association.

He said last night: "People need not be overly sensitive or read too much into certain wordings. I hope people will read the entire white paper in a positive attitude and not from the view of a conspiracy theory."

The association also cited its own remarks, made in 2008 when it was chaired by Yuen, which read: "The judiciary in Hong Kong has always been, and under the Basic Law it shall remain, separate and independent from the executive and the legislature".

But Yuen said the comment was not relevant in this case as the judiciary was part of the political structure, not the governance team. Elsie Leung Oi-sie, deputy director of the Basic Law Committee, said the judiciary was part of the city's political structure under the Basic Law.

"There is no conflict between judges performing their duties independently, without fear and favour, and safeguarding national interests as Hong Kong residents," said Leung, a former justice secretary.

The Basic Law states Hong Kong courts shall exercise judicial power independently and free from any interference, she noted.

Former association chairman Ronny Tong Ka-wah, now a Civic Party lawmaker, felt the white paper had misunderstood the city's judicial system.

"There are many foreign judges in Hong Kong," he noted. "To ask them to be patriots means they should be close to government - but then how can Hong Kong keep its rule of law?"

The Law Society, which regulates the city's solicitors, declined to comment immediately.

Vice-president Thomas So Shiu-tsung said he saw no change in Beijing's attitude on the city's judicial independence.

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impala
The White Paper was written by mainland officials. The concept of having an independent judiciary is utterly alien to them. On the mainland, there is only The State, which is embodied by the CCP, and everything else is subsidiary to that, including the judiciary. The mainland constitution even specifically PROHIBITS the separation of powers that elsewhere insulates the the judiciary from interference by the executive or legislative powers.

And while I praise the Hong Kong Bar Association for upholding their principles, technically speaking, the White Paper is right: both in theory and in practice, Beijing can overrule the Hong Kong's courts interpretation of the Basic Law (and all other Hong Kong laws), like they did for example in 1999 with the immigration issue.

For the moment, Hong Kong's judiciary nevertheless preserves a very high degree of independence and is mostly free of politics. And while we should keep fending to keep it that way, I fear that CCP statism is the rising tide that will sooner or later drown our judiciary's autonomy too.
skywalker
Having to "love China and Hong Kong" is a non-objective non-measurable and non-verifiable attribute, at least from an administrative viewpoint. It is rather a rubber-requirement, which, when the rule of law becomes subverted, can be used to kick out anyone whom the government does not like. So, this is can become the back door to undermine the independence of the jurisdiction in HK.
sydmel
Some people from the mainland never stops at attacking Hong Kong's core values that make the city such an oddity in their eyes.
Paradox314
Absolutely!!! 3 cheers.
LSH TONG
"swearing the loyalty to the crown" is a pledge of allegiance to the country, as so far that their action does not undermine the sovereign territories and lives of the crown and country.
But that allegiance has no political authority, as the crown is not the same as pledging allegiance to the ruling political government or any one party that governs directly.
THe C.C.P considers itself as "China" , hence loyalty to the Country, equals loyalty to the party. If anyone questions or oppose the C.C.P official position in anything, this will be seen by the C.C.P as a question or opposition to the country.
Which is plainly ridiculous. One can oppose the politicians and opinions of the people in direct government, yet remain faithful and loyal to the country to protect it's territories and rights of its citizens.
mymak
Why didn't you ask them their name? Don't be so shy. Introduce yourself.
hm03
The reason why such people are bought to Hong Kong is because they are experienced, especially given the common law background which HK's laws are based on.
Their language barrier is also a plus because it puts them beyond local politics and get to business of actually doing something.
Is it acceptable that a foreigner designed probably most of the most recognizable skyscrapers in China?
Is it acceptable that China built their high speed trains based on German Siemens technology?
Is it acceptable that China should take in foreign knowledge?
Of course it is acceptable, if it helps improve themselves.
Paradox314
Time to wake up to the fact that we now live together as a common human family on one rapidly globalizing Earth. For your information, a Hong Kong born Chinese woman was one of the most respected Governor Generals in Canadian history. A Hong Kong born Chinese woman is set to become the next mayor of Toronto. Your xenophobic worldview needs examining friend, you need to awaken to the new realities of the world.
captam
The Bar Association is wrong and Secretary for Justice Rimsky Yuen Kwok-keung is right to disagree with their interpretation of this paper.
We have inherited our judicial system from the United Kingdom. All Senior judges in the United Kingdom are appointed by the Sovereign and have to take oaths of office swearing their loyalty to the Queen (or King) , i.e. the serving Sovereign. The two oaths contain promises to be faithful and bear true allegiance to the sovereign as well as serving her/him well. This is the equivalent of "loving the country".
The barristers who are criticizing this paper need to go back to law school.
321manu
Judicial independence? Nice to have known you. Sad to see you go. But HKers can definitely kiss it bye bye. It won't devolve overnight. But some day, within the next 33 years, HKers will find that the HK courts will have simply become the punitive arm of the CCP political system, which is precisely what it is in the mainland.
Basic Law can no longer be considered "law" in any practical sense of the word. From here onward, the law will simply mean whatever it is the CCP wants it to mean at any given point in time. Again, this has long been the case on the mainland. It is the new reality that HKers had best start getting used to, as sad and repugnant a concept as that may be.

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