South China Morning Post
Comment›Insight & Opinion
Andrew Li says judicial independence goes beyond notions of patriotism, as judges are duty-bound to be fair. Hong Kong must remain vigilant to ensure the rule of law continues to thrive
The community is expecting anxiously the determination of the Standing Committee of the National People’s Congress on the method of electing the chief executive in 2017. When it is made, the process of political reform will advance to a further stage.
Like many of my fellow citizens, I am worried about the increasing polarisation in society today. In the coming months, I hope that there will be rational discussions within the parameters of the Basic Law and that all activities will be conducted within the law. Above all, I hope that all involved will wisely and pragmatically engage in the art of compromise, which is the essence of politics and is in the best interests of the community.
As a former chief justice, it would be inappropriate for me to enter the political arena to engage in this challenging discussion. What I wish to do is to reflect on the rule of law and judicial independence in Hong Kong today.
The rule of law with an independent judiciary is universally recognised as a cornerstone of our society under “one country, two systems”. It is a core value which lies at the heart of our separate systems.
It involves three fundamental principles. First, under the rule of law, everyone – both those who govern and those who are governed – is subject to the same laws. This is in contrast to the idea of “rule of man”.
Secondly, disputes between citizens and between citizens and government are resolved fairly and impartially by an independent judiciary. Judicial independence is integral to the rule of law, and such independence has two aspects: one, the judiciary is institutionally independent from the executive and the legislature; two, each judge is independent, whether sitting alone or in a collegiate court consisting of more than one judge.
Thirdly, the rule of law involves the effective protection of human rights. As stated in the preamble to the United Nations Universal Declaration of Human Rights, it is essential that human rights should be protected by the rule of law. This distinguishes the rule of law from the concept of “rule by law”.
The white paper issued by the State Council in June has raised widespread concern over judicial independence in Hong Kong. The concern is justified.
The English version of the white paper included judges among “those who administrate Hong Kong” (i.e. administer). In Hong Kong, with the separation of powers, the executive, the legislature and the judiciary may be regarded as the three branches of government in the broad sense. The latter two are not part of the executive. Considering that the Chinese version of the white paper used the term zhi gang (which can be translated as the governance of Hong Kong), it would appear that this is what was intended.
Unfortunately, the English version used the word “administrate”. This is unfortunate and is unsuitable. This word is usually understood in Hong Kong to refer to the executive authorities (for example, the Tung Chee-hwa, the Donald Tsang or the CY Leung administration). Clearly, the judiciary is not part of the executive. It would be best for this to be clarified. Any concern arising from the use of the word “administrate” in English should be dispelled.
But what is of great concern is the requirement in the white paper that judges should be patriotic. There is no universal definition of patriotism. People may have different views of what constitutes patriotism. A person may be regarded as patriotic by some but not by others.
As widely perceived in Hong Kong, in the context of an official document of the central government, being patriotic would include the connotation of being pro the central and the Hong Kong SAR governments; being supportive of and co-operating with them and protecting their interests.
But under the principle of judicial independence, judges should not be pro or anti anyone or anything. They should be fair and impartial. Judges have no master, political or otherwise. Their fidelity is to and only to the law. They serve the community by adjudicating disputes fairly and impartially according to law. The Basic Law provides that judges shall be chosen on the basis of their judicial and professional qualities and that they exercise their judicial power independently of any interference.
As far as judges are concerned, the legal requirement that they must take the judicial oath is a sufficient and satisfactory arrangement. By this oath, the judge swears to uphold the Basic Law (which in its very first article provides that the Hong Kong SAR “is an inalienable part” of the People’s Republic of China), bear allegiance to the SAR, and serve the SAR “conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit”.
In discharging their duties, all judges are fully committed to complying with this oath.
Whilst mainland officials may have views on judicial independence different from those held in Hong Kong, I believe that they understand and appreciate the Hong Kong perspective.
I sense that some people are rather gloomy about the future of the rule of law. I do not share their pessimism. The vigilance which has been exercised following the publication of the white paper by the community, including the legal profession, particularly the Bar, is encouraging and heartening. As has been well said, eternal vigilance is the price of liberty. In these controversial times, it is all the more important for the rule of law to remain the unshakeable bedrock of our society.
We must remember that, notwithstanding dire predictions before 1997, the rule of law with judicial independence has continued to thrive after 1997. This has been widely recognised. Whilst we should continue to exercise vigilance, we should not lose heart.
The future of the Hong Kong SAR after 2047 will have to be settled in the early 2030s after lengthy and thorough discussions. The next 10 years in the run-up to those discussions will be of great importance.
The imaginative concept of “one country, two systems” has inherent tensions, and grey areas are bound to exist. We should not now doubt our ability to deal satisfactorily with these tensions and grey areas, as we have done in the years since 1997. I remain confident that, with constant vigilance, the rule of law with an independent judiciary will continue to thrive in the coming years.
Andrew Li Kwok-nang is a former chief justice of the Court of Final Appeal