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
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.
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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.
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.
What is the Basic Law of Hong Kong?
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.
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 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.
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.
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.
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