Home https://server7.kproxy.com/servlet/redirect.srv/sruj/smyrwpoii/p2/ World https://server7.kproxy.com/servlet/redirect.srv/sruj/smyrwpoii/p2/ Hong Kong’s new Supreme Court has promised to uphold the city’s legal independence. Can he?

Hong Kong’s new Supreme Court has promised to uphold the city’s legal independence. Can he?



Sitting in the city’s final court of appeal, wearing a black cloak, ruffled white collar and white face mask, Supreme Court Justice Andrew Cheung acknowledged the bizarre circumstances when he addressed a small audience of judicial officials and others watching online.

“The Covid-19 pandemic has taken a huge toll everywhere,” Cheung said. “The judiciary and its operations have also been affected, and thanks must be extended to our judiciary staff who have worked so hard in such difficult circumstances to keep the courts functioning.”

This law criminalizes acts of secession, undermining, terrorism and inconsistency with foreign forces and carries a maximum sentence of life.

Such vague parameters have given the authorities extensive powers to crack down on government opponents as Beijing continues to tighten its control over the alleged semi-autonomous city. Hong Kong officials had previously promised that the law would be limited in force and target only a small number of fringe activists. But critics argue that since its introduction, the law has been used to oust the city̵

7;s formerly lively pro-democracy movement.

Last week, 53 opposition activists, many of them former lawmakers, were arrested under the law, accused of undermining a primary voter designed to run in last year’s legislative election – elections that were subsequently postponed due to the pandemic. .
All but one of those arrested have since been detained. But their cases, along with the other dozen people arrested under the law, will consume much of the courts’ focus in the coming year. Great emphasis will be placed on how the courts apply the far-reaching and hitherto untested law, which was introduced directly by Beijing, which bypassed Hong Kong’s semi-democratic legislature, and contains clauses that may conflict with the existing constitutional and treaty protection for speech and assembly.

With both the legislature and the administration locked in with Beijing, the courts are the one branch of government that retains some degree of autonomy – but one that can be severely tested by the blunt instrument of security law.

In his speech and at a press conference afterwards, Cheung avoided discussing the details of the law, arguing that it was inappropriate as it will soon be discussed in court. But he came back to a key point again and again.

“It is my mission to do my utmost to uphold the independence and impartiality of the Hong Kong judiciary,” Cheung told reporters. “That’s my mission, and I will do my best to accomplish that mission.”

Such independence could be severely tested in the coming year, and if lost, it could be costly for Hong Kong’s judicial system and fundamental freedoms. In a speech after Cheung’s, Philip Dykes, leader of the city’s bar association, noted that “without legal independence, a gem at an affordable price, we might as well pack our bags and steal away, for Hong Kong is nothing without it.”

Rule of law

Throughout the century as a British colony, the rule of law – equality before the courts, due process and the presumption of innocence – was considered the city’s ‘defining ideology’, one that helped Hong Kong become a global financial capital, a safe haven for companies to choose as their Asian headquarters with confidence that their rights will be protected as opposed to the often arbitrary exercise of justice elsewhere in the region.

When Hong Kong was handed over to the People’s Republic of China in 1997, the city’s new rulers, who were not interested in disturbing their economic dynamo, were careful to lipstick the importance of the rule of law and the independent judiciary to Hong Kong’s continued success under the principle known as “one country, two systems.”

Hong Kong’s judicial system did not always have the amazing reputation it now boasts. When the British established their colony on the newly seized territory in 1842, they thought a little about how the Crown’s new Chinese subjects would gain access to justice.

“In colonial Hong Kong, racist condemnation and prejudice added to the social injustice inherent in the strong class division of Victorian Britain, and they were reflected in the work of the courts,” writes Steve Tsang in “A Modern History of Hong Kong: 1841” – 1997. “The language of the court was English, and interpreters were rarely provided – meaning many Chinese defendants were unaware of what was going on when they were railed by an unknown judicial system and unsympathetic judges.

Tsang notes, however, that even in the early years of widespread discrimination, the “rule of law” determined the structure and procedures of the judiciary, barred some governors from pursuing certain policies that were detrimental to the local community, and helped secure the acquittal of many wrongdoers. . ”

After 1997, the law also helped limit the city’s new rulers. Thanks to its strong protection of speech and assembly, Hong Kong maintained a vibrant political and media scene unlike anything seen in China, with annual demonstrations – such as the Tiananmen Square Memorial on June 4 – iconic of these freedoms.

Hong Kong Court of Appeal final judgment, seen in January 2018.

But the conflict between the country and the two systems it contains has grown over time and has reached breaking point in recent years.

China’s legal system stands in stark contrast to Hong Kong’s, being highly politicized and almost completely controlled by the ruling Communist Party. In criminal cases, 99% of prosecutions end in a guilty verdict, and judgments can often be very inconsistent, depending on political circumstances, even when the facts of the case are the same. In civil cases, companies and defendants cannot be sure that the courts will protect their rights if they run counter to the broader political or economic goals of the Chinese states.

The prospect of being subjected to Chinese justice through an extradition proposal with the mainland triggered the anti-government unrest that rocked Hong Kong in 2019. Still, the protesters were successful in defeating the proposed legislation, but they finally encouraged the introduction of national security law last year, which created a series of political crimes and undermined the protection contained in the Constitution, Hong Kong’s de facto constitution, while also providing the opportunity for defendants to be transferred to China for trial in certain circumstances.

Such a broad and comprehensive law would pose a challenge for the courts to interpret in the best of times, but security legislation has been accompanied by a climate of enormous pressure on the judiciary to hand down harsh sentences to protesters and other dissidents, similar to how cases are handled in China.
Judges, who are considered too lenient or sympathetic to protesters, have been attacked in Chinese state media and pro-Beijing newspapers in Hong Kong. A commentator wrote in the state-run China Daily late last year that “in theory, judges should not take political sides in a court of law, but in Hong Kong many members of the public now see some judges as ‘yellow judges’ exercising political favoritism. for offenders from the opposition camp. “
In November, Zhang Xiaoming, one of Hong Kong’s top Chinese officials, said there was a need for “reforms” for the city’s judiciary and that the word “patriotism” should be added before the core values ​​of democracy, freedom and human rights are spoken by Hong Kong society. “

“We must defend the city’s rule of law, but we must also protect the national constitutional order,” Zhang said, adding that many “problems” had been revealed in the constitution that needed to be resolved.

Legal rear guard

In his comments this week, Cheung, the new Supreme Court, seemed to address these controversies, noting that judges in some cases have “come under intense control” and have been subjected to “biased criticism”.

“While freedom of speech for all in society must be fully respected, there must be no attempt to exert undue pressure on judges in the exercise of their judicial functions,” Cheung said. “Judges must be fearless and ready to make decisions in accordance with the law, whether the results are popular or unpopular, or whether the results will make themselves popular or unpopular.”

But what exactly the law means can be a moving target as Beijing takes a more practical approach to Hong Kong’s judicial system.

While Hong Kong has a “Court of Final Appeal”, the true mediator in the city’s constitution is China’s National People’s Congress, the country’s rubber-stamped parliament that can issue “interpretations” of various articles of the constitution – essentially rewriting it on the go.

In the past, this power was rarely used, but it has been exercised more and more in recent years. Observers have expressed concern that if Hong Kong courts apply the national security law more leniently than Beijing wants, the national government could step in to force them to do otherwise.

“Respect for autonomy and Hong Kong’s authority to perform its duties under the new law requires that (National People’s Congress) exercise restraint in its interpretive ability,” wrote Simon Young, a law professor at the University of Hong Kong when the law was enacted. first promulgated. “Excessive intervention will destroy the separate system model and cause great legal instability.”
But remarks by Zhang and other officials, such as declaring that there is no “separation of powers” in Hong Kong, suggest that a central government is not willing to sit and let the city courts decide as they please.

And in response to a question about such interventions by the central government, Cheung acknowledged that there were not a few Hong Kong judges who could do. “When there is an interpretation, the court must follow,” he said.

In an interview this week, Young noted that the “central and local governments have full confidence in the new Chief Justice,” which could rule out a tension of interventions in the near future.

“The first batch of (security) cases going to court will be considered by all to be test cases to see the true breadth and limits of the law,” he said. “My prediction is that there will be no direct interference from (Beijing) to influence or change the outcome of these cases.”

However, Tsang, Hong Kong’s historian and director of the SOAS China Institute in London, disagreed and predicted that Chief Justice “will come under enormous pressure” in the coming years.

“(This) will be extremely difficult for the Supreme Court to resist in the long run, which means that the erosion of legal independence is unfolding, and unless there is a change of government in Beijing that is unlikely to give up,” he said. .

In his last speech this month, Cheung’s predecessor, Geoffrey Ma, urged him “always to be guided by your principles, for it is these principles that will see you and society through all seasons.”

But Tsang said that by accepting this role, Cheung may have put himself in an impossible position.

“Efforts to protect Hong Kong’s legal independence are now an underlying operation, and the Supreme Court’s determination to stand firm or not will only determine the pace of this process,” Tsang said. “It’s unlikely he’s able to hold the line beyond the short term, no matter how determined he may be.”

CNN’s Eric Cheung contributed reporting.


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