Time for an independent chief prosecutor
Recent events prove the need for independent, non-political, director of public prosecutions
Justice is the end of government, said Daniel Defoe. Although radical changes are occurring elsewhere to promote prosecutorial freedom, they have, lamentably, passed Hong Kong by.
In Australia, Canada and England and Wales, for example, attorneys general have withdrawn from the prosecution process, in whole or in part, in favour of a politically neutral chief prosecutor. Similar moves are currently afoot in many smaller jurisdictions, including the Bahamas, Malta and Samoa.
In Hong Kong, however, the Secretary for Justice, Rimsky Yuen Kwok-keung, a government minister, still calls the shots, and progress towards achieving a wholly independent director of public prosecutions was blocked by Yuen's predecessor, Wong Yan-lung, in 2011.
At a time when the current and former chief executives, along with sundry other politicians and the ICAC's former commissioner are under criminal investigation, and pro-democracy demonstrators are facing prosecution for public order offences, the case for the DPP, a neutral figure, assuming full prosecution control, is overwhelming.
Only if the prosecution system is de-politicised can citizens see for themselves that politics plays no part in prosecution decisions. Since the justice secretary is a minister appointed by Beijing on the say-so of the chief executive, his prosecutorial control lacks the all-important appearance of neutrality.
Although Yuen belongs to the team promoting the government's electoral package, he is also ultimately responsible for determining which of the street protesters opposing his proposals should be prosecuted. This is a stark conflict of interest. Just as an independent chief justice must administer judicial affairs, so also must prosecutorial affairs be controlled by an independent chief prosecutor, without ministerial responsibilities.
While Yuen has recused himself from sensitive investigations, this is no substitute for a wholly independent DPP. The prosecuting guidelines of both the United Nations and the International Association of Prosecutors highlight the need for the prosecutorial discretion to be exercised independently of government, and Hong Kong must now move with the times.