Court ruling on Hong Kong police complaints system highlights judicial independence

Hong Kong’s judiciary should not be afraid of reform to modernise the courts, but any attempt to erode judicial independence or reduce judicial power would be devastating

Cliff Buddle

Published: 8:30am, 26 Nov, 2020

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A dramatic court ruling last week declaring Hong Kong’s system for complaints against the police to be ineffective and unlawful could not have come at a better time.

The damning judgment on a system in which the government placed so much faith during months of civil unrest last year was delivered only two days after Beijing made a high-profile call for judicial reform. It served as a reminder that the courts in Hong Kong decide cases independently, even if they concern matters of great political sensitivity.

Beijing’s support for judicial reform raises concern that steps will be taken to make the judiciary more compliant and likely to favour the government.

Zhang Xiaoming, deputy director of the State Council’s Hong Kong and Macau Affairs Office, described reform of the judicial system as a hot topic in the community at a legal forum to mark the 30th anniversary of the Basic Law’s promulgation. He did not explain why reform was necessary or provide details of the changes Beijing has in mind. Zhang did, however, provide a clue by citing the views of former Court of Final Appeal judge Henry Litton.

Litton, who served with the judiciary for more than 20 years, has campaigned against what he perceives to be its failings since retiring in 2015. He has accused the judges of becoming detached from the community, turning courts into debating chambers to attack government policies and losing the trust of Beijing.

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As a distinguished member of the legal community, his views deserve attention and few would disagree with Litton’s call for focused judgments and judicial rigour. But he has, in the process, become a poster boy for members of the pro-establishment camp eager to clip the judiciary’s wings.

In a column for the Post in September, Litton argued Beijing had become distrustful of the judiciary because the courts at the highest level, when interpreting the Basic Law, have “put a slant on its plain words, by applying obscure norms and values from overseas which are totally unsuited to Hong Kong’s circumstances”. One of his criticisms is that the courts in Hong Kong often draw on European court decisions when the Basic Law only permits them to refer to “other common law jurisdictions”.

Mr Justice Anderson Chow Ka-ming, in his 60-page ruling in the police complaints case, made numerous references to cases decided by the European Court of Human Rights in Strasbourg as well as the United Nations Human Rights Committee. He considered cases from Belgium, Germany, Russia, Turkey, Bulgaria and Uruguay, among others.

The reason for this is that his decision was based on Hong Kong’s Bill of Rights. The wording of this law is almost identical to the International Covenant on Civil and Political Rights, applied in Hong Kong through the Basic Law. The European Convention on Human Rights uses similar wording. It therefore makes sense for the courts to consider the wealth of judicial reasoning available in relevant cases dealt with by the European court or the United Nations.

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Mr Robert Ribeiro, a permanent judge of the Court of Final Appeal, wrote in 2015: “The influence of the Strasbourg Court’s jurisprudence has been extensive and highly beneficial in the development of the Hong Kong courts’ own jurisprudence in the area of human rights.”

The Court of Final Appeal has described these overseas decisions as being of highly persuasive authority and has been referring to them since soon after the handover in 1997.

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Their value has also been highlighted by former Court of Final Appeal judge Sir Anthony Mason, who wrote in 2007 that it was important for Hong Kong courts to reflect adherence to the rule of law “in accordance with internationally adopted judicial standards”.

Mr Justice Chow, in last week’s ruling, found the Bill of Rights requires the government to provide an independent and effective mechanism for investigating complaints of ill-treatment against the police. The existing complaints system and the failure of the police to ensure officers can be easily identified fails to meet such standards, he ruled.

The government will appeal against the judgment. Whether or not the judge is ultimately found to have been right about the legal position, no one can question his independence.

The ruling comes at a time when the judiciary is in the spotlight amid deep political divisions in the city. Zhang, at the forum last week, said Beijing would only allow patriots to govern Hong Kong. In this context, it is not surprising that talk of reforming the judiciary has led to concerns its powers and independence will be undermined.

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The official noted that in Western countries there is constant judicial reform without independence being impaired.

There is nothing wrong with reform. It is needed to ensure the judiciary moves with the times. Britain, for example overhauled its judicial appointments system in 2005 to reduce the role of the government.

The Supreme Court was created in 2005, to replace the House of Lords, in a move aimed at strengthening judicial independence. An ambitious programme to enhance the use of new technology in the courts was launched in 2016 and the broadcasting of British court proceedings is helping make them more transparent.

People gaze at Britain’s Houses of Parliament, incorporating the House of Lords and the House of Commons, in central London in December 2019. In 2005, the Supreme Court was created to replace the Appellate Committee of the House of Lords as the country’s highest court. Photo: AFP

Hong Kong’s judiciary should not be afraid of reform to modernise the courts, make the best use of technology and ensure greater access to justice. However, any attempt to whittle away at judicial independence or reduce judicial power would be devastating for Hong Kong.

One concern is any move to stop the judges declaring laws to be unconstitutional if they breach the Basic Law. This power is vital to ensure human rights in the city are protected, but it has occasionally attracted criticism from Beijing.

The job of managing any reform process will fall to Andrew Cheung Kui-nung, who will become chief justice in January.

In a speech this month, Mr Justice Cheung said a society that treasures the rule of law also treasures its judges, who must be independent, impartial, fearless and competent. “In Hong Kong, we take pride in the fact that judicial independence is not only constitutionally guaranteed in the Basic Law, but is also practised on the ground,” he said. “Nonetheless, constant vigilance is required to protect judicial independence.”

Cliff Buddle is the Post’s editor of special projects

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