• Fri
  • Dec 19, 2014
  • Updated: 5:00am
Beijing White Paper 2014
NewsHong Kong
JUDICIARY

Judges don’t need to be patriots, says former top judge Andrew Li

PUBLISHED : Friday, 15 August, 2014, 4:09am
UPDATED : Friday, 15 August, 2014, 5:04pm
 

Former top judge Andrew Li Kwok-nang has expressed reservations about the view expressed in Beijing's recent white paper on the "one country, two systems" formula that Hong Kong judges have a "basic political requirement" to love the country.

In a commentary published in the South China Morning Post today, Li said public concerns raised over Hong Kong's judicial independence, following the issue of the State Council document on June 10, were justified.

"What is of great concern is the requirement in the white paper that judges should be patriotic," he wrote.

In Hong Kong, Li said, patriotism had been widely perceived as being "supportive of and cooperating with" the Beijing and Hong Kong governments, and protecting their interests.

"But under the principle of judicial independence, judges should not be pro or anti anyone or anything," he wrote. Judges were expected to be fair, impartial and faithful only to the law.

It is the first time the retired chief justice has aired his opinions in public on the white paper, which asserted Beijing's "comprehensive jurisdiction" over the city.

Controversially, the document declared that judges were "administrators" and as such had a basic political requirement to love the country.

Fears that the city's judicial independence and rule of law might be jeopardised prompted a record 1,800 lawyers to take part in a silent march on June 27 - despite an assurance by Secretary for Justice Rimsky Yuen Kwok-keung that the paper "carries no intention to impose requirements other than those in the Basic Law on judges".

Critics say the paper has wrongly categorised judges as among those who "administrate" Hong Kong.

"This is unfortunate and is unsuitable," Li said. "Any concern arising from the use of the word 'administrate' in English should be dispelled."

Li also gave his take on the paper's suggestion that judges had a responsibility for "correctly understanding and implementing the Basic Law".

Judges were required to swear an oath to uphold the city's mini-constitution, and that was a sufficient and satisfactory arrangement, he said.

In the same article, Li called for rational discussion and pragmatism in thrashing out electoral reform to deliver universal suffrage in the 2017 chief executive election, though he said he would not engage in the political debate.

"I am worried about the increasing polarisation in society today," he wrote. "I hope that all involved will wisely and pragmatically engage in the art of compromise, which is the essence of politics and is in the best interests of the community."

 

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33

This article is now closed to comments

scmpcoolguy
Bravo, finally some long overdue words of wisdom from our ex Chief Justice. Agree 100%
klyiu1@yahoo.ca
By tradition, and for good reasons, judicial staff rarely, if ever, step into the public arena and participate in any discussion, whether in defence of the court decision or on any issues of public interest. The expectation and the perception that they must remain neutral, impartial and unbiased cannot be over-emphasized. Hats off to Mr. Li for coming out of the shadow to voice his views on this sensitive issue, in such a balanced and reasoned approach. There is no doubt in my mind that any attempt to encroach upon the independence of judiciary must be curbed loud and clear.
felix_wong
i fully support Li's comments!
zvichadashote
I don't understand this controversy. A person can love his or her country and still try to change or improve things. if one doesn't love their country, why would they stay here?
rsallen
The trouble is that Beijing requires people to love their country. And by "love their country" they mean "don't complain about the government".
lancykwan
Li's comments show a lot of class. Eloquent, pragmatic and level headed.
I fully support the need for the judicial system in Hong Kong to remain independent of political influences and "special interests".
Ant Lee
The mainland chinese government (and increasingly the HKSAR governemt) cannot understand the difference between loving the party and loving the country. Rule of law is good for the country but means the party cannot do all the nasty things it wants so that it stays in power, and this is something the communist party could never comprehend.
hm03
The question is on how to define it by law. Suppose one of the unwritten rules of loving the country may be that you need to convict a controversial mainland figure in HK. The mainland government can 'persuade' the judge to rule not convict him/her under the 'love the country' requirement. If that ever becomes the case, is that helping the country change or improve things?
The point of law is that it needs to be as objective as possible. That is especially so when the government above is not that transparent.
The best way to 'love the country' is not to have a stupid requirement for judges on it. That means everyone is fair before the law. The law should uphold the country, as China always loves reciting over and over and over again.
pslhk
Patriotism in English verbosity:
-
You do swear by Almighty God to be a true and faithful Servant unto the Queen's Majesty, as one of Her Majesty's Privy Council. You will not know or understand of any manner of thing to be attempted, done, or spoken against Her Majesty's Person, Honour, Crown, or Dignity Royal, but you will lett and withstand the same to the uttermost of your Power, and either cause it to be revealed to Her Majesty Herself, or to such of Her Privy Council as shall advertise Her Majesty of the same. You will, in all things to be moved, treated, and debated in Council, faithfully and truly declare your Mind and Opinion, according to your Heart and Conscience; and will keep secret all Matters committed and revealed unto you, or that shall be treated of secretly in Council. And if any of the said Treaties or Counsels shall touch any of the Counsellors, you will not reveal it unto him, but will keep the same until such time as, by the Consent of Her Majesty, or of the Council, Publication shall be made thereof. You will to your uttermost bear Faith and Allegiance unto the Queen's Majesty; and will assist and defend all Jurisdictions, Pre-eminences, and Authorities, granted to Her Majesty, and annexed to the Crown by Acts of Parliament, or otherwise, against all Foreign Princes, Persons, Prelates, States, or Potentates. And generally in all things you will do as a faithful and true Servant ought to do to Her Majesty. So help you God
Shadow
if a foreign or Chinese judge is patriot to China, but he still doing his job as an impartial judge. and keeping his personal view up to him. what is the harm?

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