• Fri
  • Sep 19, 2014
  • Updated: 9:48am
Beijing White Paper 2014
NewsHong Kong
Rule of law

No need to fear Beijing’s white paper, says top British judge Lord Neuberger

Call for judges to be patriotic dismissed as consistent with present oath of allegiance

PUBLISHED : Tuesday, 26 August, 2014, 8:43pm
UPDATED : Wednesday, 27 August, 2014, 11:56am

The UK Supreme Court's president, who also sits on Hong Kong's top court, has dismissed worries over demands in Beijing's white paper for local judges to be patriotic, saying the requirement is "not inconsistent" with judicial independence.

"I wonder if there is anything to worry about in the white paper," Lord Neuberger said in a speech at the Foreign Correspondents' Club.

Neuberger, a non-permanent judge on the city's Court of Final Appeal since 2009, said judges were expected to be patriotic to the extent that they took an oath of allegiance. "I took an oath to bear allegiance to the Hong Kong Special Administrative Region of the PRC," he added.

"Judicial independence is not inconsistent with judicial patriotism. The way in which judges demonstrate their patriotism is by an irrevocable and undiluted commitment to the rule of law."

Neuberger's position stood in contrast to the cautious attitude displayed by Andrew Li Kwok-nang, chief justice for 13 years before he stepped down in 2011.

The way in which judges demonstrate their patriotism is by an irrevocable and undiluted commitment to the rule of law

Li said in an article this month that the patriotism referred to in the white paper had been widely perceived as meaning "supportive of and cooperating with" the central and local governments, and protecting their interests. He said judges should not be pro or anti anyone "under the principle of judicial independence".

The present chief justice, Geoffrey Ma Tao-li, has said he shared Li's views. Until yesterday, other serving judges had remained silent on the issue.

Neuberger, 66, said he saw "no present problem" with the city's rule of law. He later added that he "might resign" from the Court of Final Appeal if he felt the rule of law was undermined.

The white paper, released in June, drew some 1,800 lawyers onto the streets in protest amid fears that the rule of law was being jeopardised.

The paper also called judges "administrators" of Hong Kong, prompting worries about the separation of executive and judicial powers. On this, Neuberger said words "are slippery things".

"The word 'government' can be properly used to mean the executive arm of the government alone or all three branches of the government including the judiciary [and legislature]. The word 'administration' is similar."

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This article is now closed to comments

pslhk
ALi, 糟糠Chan, 笨Tai, 癫Lee
gang of four in silly perversion of common law
will be remembered as the founding fathers of copy law
international laughingstocks
champions in navel gazing and cultural prejudice
stumbling blocks impeding HK’s legal development
masochistic fools mentally damaged from self-indulgence
and overuse as chisels for foreign purposes
walkup
The underlying problem is that the judicial independence of the HK legal system is superior to that of the Mainland judicial system, wigs or no wigs. The fear from HK is that the current injection of 'patriotism' is code for subordination of the legal system to potential interference by Party officials using their positions. The bullying tones of some Mainland officials and supporters doesn't help. A little more sensitivity might be in order.
mpscottnzoz@yahoo.com
Under their oath of office, Hong Kong judges bind themselves to “uphold the Basic Law” and serve “conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit”. The word "administer" in the Judicial Oath suggests that - contrary to the fears of the 1800 anti-White Paper lawyers and fellow travellers - it is perfectly grammatical, logical and legitimate to call them "administrators" in the sense that they administer justice.
Michael Scott
mpscottnzoz@yahoo.com
"The way in which judges demonstrate their patriotism is by an irrevocable and undiluted commitment to the rule of law." That is the core issue, but instead the true meaning of judicial patriotism is lost in the diversion of the debate to political patriotism. Honesty, independence, impartiality and competence are the core qualities judges must bring to their job. As judges are human beings not super-beings they sometimes fail those qualities, including in top courts. Eminent American legal educator John Henry Wigmore said:“Few of us can know the hearts of any of the judges – whether attackers or defenders. We must rely for our working estimates upon their attitudes as exhibited in their judgments of law upon the facts of the cases submitted. … Doubtless there are particular judgments, now and then, for which the hidden motive of one or two judges was either a corrupt subservience to political creditors or a partisan political bias. … Wherever such charges are merited, they can and should be attended to on the merits of each charge.” Unfortunately, the rule of absolute judicial immunity, which judges invented for themselves (although they claim it was for the people), prevents merited charges against judges from even beginning to be considered, let alone attended to. That does nothing for judicial independence - except to corrupt it.
Michael Scott
pslhk
Mr Scott
I've always enjoyed reading your comments
You could’ve put post re-union judiciary on the right track
and made it respectable
If only you had the job of pretentious brouhaha
if that not of neotenic ALi
-
HKU would be honored
if you accept an appointment
to help clean up its law department
martinturner
The legalistic Lord Neuberger misses the key point, put well by Andrew Li, an actual Hongkonger: 'patriotism [is] widely perceived as meaning "supportive of and cooperating with" the central and local governments, and protecting their interests'.
Beijing sent a clear message, which was well understood here, and attempts to downplay its significance fail before they start.
chuchu59
Its not really about fear but rather we are upset by the way Beijing is ramming this down our throats. The White Paper seems to indicate that Beijing is tightening its control over us when we had always believed the BL would preserve our freedoms and ways of life.
michaelhctam@gmail.com
there's no need to fear it because you'll be smashed to pieces if you oppose it! :)
DinGao
The Judicial Oath
I swear that, in the Office of a Judge of the Judiciary of the Hong Kong Special
Administrative Region of the People’s Republic of China, I will uphold the
Basic Law of the Hong Kong Special Administrative Region of the People’s
Republic of China, bear allegiance to the Hong Kong Special Administrative
Region of the People’s Republic of China, serve the Hong Kong Special
Administrative Region conscientiously, dutifully, in full accordance
with the law, honestly and with integrity, safeguard the law and administer
justice without fear or favour, self-interest or deceit.
A patriot is someone who loves his country.
In this case, the country is China, not Hong Kong.
The oath requires the swearer to be a HONG KONG patriot, nothing more.
Dai Muff
In this case, a country is NOT a Party.

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