Pearls and Irritations

Criticism of the city’s independent and highly professional judiciary is malicious, groundless and often politically motivated.

Every year, at the ceremonial opening of the legal year, Hong Kong’s chief justice, secretary for justice and leaders of the legal profession deliver speeches that are sometimes of real consequence, and this year was no exception. On January 24, Chief Justice Andrew Cheung Kui-nung vigorously defended the judiciary from its critics, of whom there are many, particularly in foreign parts.

He highlighted the independence of the judiciary, itself a bulwark of the rule of law, and stressed its achievements, and he was right to do so. After all, most of the criticisms are politically motivated and groundless, and emanate from those who do not have the city’s best interests at heart.

Hong Kong possesses of one of the finest judiciaries in the Asia-Pacific region, and one that is globally admired. It comprises highly professional judicial officers who stoutly uphold the traditions of the common law world. They are appointed by the chief executive on the recommendation of an independent commission, chaired by the chief justice, and are chosen on the basis of their legal ability, professional standing and personal integrity.

This, undoubtedly, helps to explain why Hong Kong’s legal arrangements are well regarded internationally. The World Justice Project’s rule of law index, for example, is the world’s leading source for original, independent data on the rule of law, and it has consistently rated Hong Kong highly. The index covers 139 countries and jurisdictions, and measures the rule of law based on the experiences and perceptions of the general public and in-country legal practitioners and experts worldwide.

In the 2021 index, Hong Kong ranked 19th with what was called “a strong adherence to the rule of law”. It was well ahead of many Western countries, such as France, which was 23rd, the United States, at 27th, and Greece, at 48th. This, by any yardstick, was an impressive ranking, and the city’s judiciary is entitled to much of the credit.

Anybody wishing, therefore, to harm Hong Kong, whether in the protest movement or in the Five Eyes alliance, has first to undermine its judiciary, given that it underpins the rule of law. In 2019-20, the protest movement’s armed wing attacked courts at all levels with petrol bombs and sought to intimidate particular judges, using doxxing and graffiti.

Once the insurrectionists received their just deserts, the judges who held them to account were sometimes threatened with reprisals, although they all stood firm. Within the Five Eyes alliance, notably in the UK but also in Australia and Canada, its judges who hold appointments as non-permanent judges in the Hong Kong Court of Final Appeal were, on the basis of fake news over the impact of the national security law for Hong Kong, pressured to resign, but this also failed.

Against this background, Chief Justice Cheung articulated some basic home truths in his address. He said he was confident that Hong Kong’s fundamental rights, protected by the Basic Law, remained intact, and he emphasised that “the rule of law ensures and promotes fairness, equality and justice, which are the core values in the administration of justice under our system of law”.

He pointed out that the city’s case law was replete with judgments that generously interpreted basic rights and narrowly confined restrictions by reference to their “aim, relevance, necessity and proportionality”, and this, however unpalatable to the city’s critics, was incontrovertible.

There have, moreover, been many comments over the past two years about judicial independence in Hong Kong, often from overseas, with much being malicious. When, said Cheung, such comments were “not based on objective facts and rational arguments, but rather on surmises, political stances or geographical considerations, they are of no value to the rule of law in Hong Kong or the upholding of judicial independence”. In this, he was absolutely correct, as the comments he referenced have been designed to weaken the city’s legal system, such being an objective of many in the West.

Indeed, nothing gives the critics greater pleasure than denouncing the national security law’s provision that enables the chief executive to designate judges to try national security cases, and they delight in claiming that only judges who will convict as directed are chosen. This, of course, is fallacious, and, as Cheung pointed out, “judicial independence in Hong Kong exists as a fact”.

Although the general power to designate judges is vested in the chief executive, so also is the general power to appoint the entire judiciary. In practice, the actual assignment of designated judges to hear particular cases is the responsibility of the court leaders, which is exactly the same practice applicable in all other cases, and has nothing to do with the chief executive.

Since the chief executive is, for the most part, unfamiliar with individual judges, let alone their strengths and weaknesses, it follows that the chief justice will be consulted as part of the designation process. Those who are designated are drawn from the ranks of the existing judiciary, and will have demonstrated their judicial worth.

Although some people have argued that the criteria for designation should be more clearly indicated, it does not take a genius to work out that those designated will need to have a proven track record of competence, integrity and professionalism. As an elementary precaution, moreover, a judicial officer will not be eligible for appointment if, as the national security law indicates, “he or she has made any statement or behaved in any manner endangering national security” (article 44).

The essential point, however, and one that some people deliberately choose to disregard, is that once designated to try national security cases, judicial officers remain true to their oaths of office. This requires them to “administer justice without fear or favour, self-interest or deceit”, and it applies equally to every type of criminal proceeding, regardless of its specific nature. As Cheung explained, this means that “no political or other personal considerations of the judge can be entertained in the judicial decision-making process”.

Although some commentators have made a song and dance over the non-disclosure of the number of designated judges and their identity, this is simply mischief-making. Anything that can be done to protect designated judges from possible dangers is to be welcomed, particularly as an alarming number of judges handling national security and protest-related cases have already been abused, doxxed and threatened. Once, of course, a case reaches court, it is blindingly obvious who has been designated to try it, and talk of material non-disclosure, however titillating for the commentariat, is best avoided.

Indeed, Cheung, having noted that attempts to interfere with judges are on the rise, condemned them as a “direct affront to the rule of law and judicial independence”. He nonetheless assured everybody that these attempts were “completely futile and pointless” and would have no effect on the judiciary’s work. At the same time, court security has been considerably enhanced, which everybody should welcome. After all, even if inconvenience results, this is a price worth paying to safeguard an institution that is integral to Hong Kong’s much-vaunted rule of law.

Although Hong Kong’s future success, under the “one country, two systems” policy, is now assured, constant vigilance is essential. The ill-intentioned are forever on the lookout for ways to harm it, and they have the legal system firmly in their sights. Everybody who cherishes the rule of law will, therefore, be inspired by Cheung’s resolve to protect the judiciary at all costs, and he deserves the full support of the entire community.

This article was first published by China Daily and is reproduced with permission.

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