As Hong Kong’s rule of law is eroded, voters have one last chance to turn the tide

District Judge Kwok Wai-kin’s sentencing remarks in a stabbing case that took place in Tseung Kwan O last August have raised concerns about judicial independence in Hong Kong.

Likening the anti-government protests to the Cultural Revolution and black-clad protesters to a “terrorist army”, Kwok expressed sympathy with a tour guide he jailed for 45 months for stabbing three people at a Lennon Wall.

Kwok said the defendant was himself a “bloodstained victim” of the protests who had made an “involuntary sacrifice” amid the social unrest. The judge has since been barred from handling cases relating to the demonstrations. 

The sentencing was seen by some as disproportionate to the seriousness of the case, and might have only a limited deterrent effect on similar offences. By taking a political stance in his judgment, the judge has violated the spirit of the rule of law, and caused an uproar in society. However, this is just the tip of the iceberg.

In the past few years, there have been similar rulings in the lower courts. Political inclinations and social values appear to be creeping into the courts. The rule of law has been eroding since the handover, and now we might be looking at the end of it.

First and foremost, there is a fundamental deficiency in Hong Kong’s rule of law. Hong Kong’s Basic Law was enacted under the constitution of the People’s Republic of China, yet the two judicial systems are completely different and incompatible.

Furthermore, the Basic Law contains a caveat: the National People’s Congress has the power of final interpretation over Hong Kong’s courts.

Hong Kong, 20 years after the landmark right of abode ruling

In the early years after the handover, the central government kept its promise not to interfere in Hong Kong’s affairs.

However, the Ng Ka-ling case of 1999 was a turning point, when Tung Chee-hwa’s administration sought an interpretation from the National People's Congress Standing Committee to overrule the Court of Final Appeal’s decision to give right of abode to children of Hong Kong permanent residents, whether they were born in Hong Kong or on the mainland.

Since then, the NPCSC has interpreted the Basic Law on numerous occasions and shaken Hong Kong’s judicial independence. In 2016, it intervened in the Legislative Council oath-taking case by making its fifth interpretation of the Basic Law. Hong Kong officials have also been criticised for failing to act in accordance with the Basic Law.

Such acts disrespect the judicial procedures of Hong Kong. It now seems that “one country, two systems” and judicial independence endure largely in name only.

Although the Court of Final Appeal has maintained its independence, it is not enough. However powerful, one single court cannot defend the entire legal system.

With the retirement of Chief Justice Geoffrey Ma Tao-li and other judges of his generation, the High Court is expected to become more conservative, further eroding judicial independence.

Originally, the three pillars of Hong Kong’s rule of law were the legislature, the executive branch and the judiciary. However, the Legislative Council is now controlled by the pro-establishment camp, and laws restricting the rights and freedoms of Hongkongers have been passed.

Rules of procedure have been amended repeatedly to the advantage of the government. The administration has on occasion bypassed Legco scrutiny to try to pass bills. What about the system of checks and balances?

In addition, the suppression of the opposition during the anti-extradition protests is surely proof that the Hong Kong police have become a political tool. The Department of Justice appears to be more interested in defending the government’s interests than in justice per se.

A large number of protesters have been arrested – more than 7,000, of whom 40 per cent are secondary school and university students – and around 10 per cent have been prosecuted.

In contrast, only a handful of men have been charged in the Yuen Long mob attack on July 21. In today’s Hong Kong, are some people more equal than others before the law?

To turn the situation around, Hongkongers must get out, vote in September’s Legco election and help the pan-democrats take 35 seats or more. This could be the last fight for Hong Kong.

Albert Cheng King-hon is a political commentator