By AUSTIN RAMZYFEB, New York Times, February 5, 2018
Hong Kong¡¦s judiciary has long been one of its most prized institutions, a legacy of colonial rule in which the judges inherited not just the wigs and gowns of British courts, but also the common law traditions of fairness and independence.
Confidence in the rule of law has helped set Hong Kong apart as one of Asia¡¦s best-run cities and a global financial center on par with New York and London. The court system is seen as the ultimate guarantor of the autonomy from the authoritarian mainland that Beijing promised when Hong Kong rejoined China in 1997 under the formula ¡§one country, two systems.¡¨
But in recent months, a series of politically charged cases has put Hong Kong¡¦s judiciary under some of the greatest scrutiny it has faced in two decades of Chinese rule. Many see a test of whether the courts can protect freedoms even as Beijing exerts more influence over Hong Kong¡¦s compliant local government and increasingly cowed press.
¡§Because the government lacks the kind of legitimacy that the governments of the West enjoy, people in Hong Kong tend to place more weight on courts,¡¨ said Paul Shieh, a barrister and former chairman of the Bar Association.
The biggest concerns have centered on the legal battles of three young activists who were imprisoned for their roles in leading the 2014 Umbrella Movement protests, when thousands of people flooded the streets to demand freer elections. Supporters call the three ¡X Joshua Wong, Nathan Law and Alex Chow ¡X prisoners of conscience.
Hong Kong¡¦s highest court, the Court of Final Appeal, is expected Tuesday to rule on an appeal from Mr. Wong and the two others of prison sentences of six to eight months that were handed down in August. Those stiffer punishments had been sought by Hong Kong¡¦s Beijing-backed government, which was unhappy with more lenient sentences by a lower court two years ago of community service for Mr. Wong and Mr. Law and a suspended jail term for Mr. Chow.
In Washington last week 12 members of Congress nominated Mr. Wong, Mr. Law, Mr. Chow and other participants in the Umbrella Movement for the Nobel Peace Prize. The group ¡X led by Senator Marco Rubio of Florida and Representative Christopher Smith of New Jersey ¡X called the case against the three activists ¡§trumped-up charges.¡¨ Hong Kong and Beijing officials accused the Americans of meddling in China¡¦s domestic affairs.
Last month, a court sentenced Mr. Wong to three months in prison in a separate case for refusing to obey a court order to leave the protest site. He was later released on bail pending an appeal.
Human rights groups and pro-democracy politicians saw the push for harsher sentences as evidence the government was trying to satisfy Beijing¡¦s interests. Thousands turned out for new protests to oppose the activists¡¦ incarceration.
However, others say those criticisms are unfair. The government has rejected any suggestion the jailed activists were political prisoners, and it has vehemently denied any decline in Hong Kong¡¦s rule of law. Hong Kong¡¦s two main lawyers¡¦ groups have also said they believed the rulings were made in accordance with the law, seeing no indications of political motives.
Regardless, the judgments have shaken faith in the courts, both in Hong Kong and abroad. Last year, Hong Kong¡¦s ranking for judicial independence in the World Economic Forum¡¦s Global Competitiveness Index slipped to 13th from eighth the year before.
This was still enough to give Hong Kong the highest ranking of any country or territory in Asia. The next was Japan, which ranked 15th. (Hong Kong also outperformed the United States, whose courts placed 25th.)
The still-sterling reputation of its courts has been the bedrock of Hong Kong¡¦s image as a bastion for the rule of law, and a big draw for the global banks and other companies that base their Asian headquarters here. Confidence remains that commercial cases are handled without political interference, despite a growing presence of mainland businesses in the territory.
Hong Kong¡¦s judges demonstrate a pride in traditions that date from the era of British colonial rule. This is apparent not just in the white wigs, but also in the continued use of English ¡X though the local Cantonese is increasing ¡X and the education of many judges abroad, particularly in Britain.
The biggest legacy is Hong Kong¡¦s embrace of the British principle of common law, in which judges build upon the precedent of earlier court cases when making rulings. To maintain ties to other common law countries, mostly fellow former British colonies like Canada and Australia, Hong Kong¡¦s highest court, the Court of Final Appeal, invites foreign judges to serve in temporary roles.
¡§The legal system in Hong Kong is the common law system,¡¨ Geoffrey Ma, the chief justice of the Court of Final Appeal, said in a Jan. 8 speech delivered in impeccable British English. ¡§This system has been in place for nearly 180 years and has served the community by contributing to Hong Kong¡¦s success over the years.¡¨
Hong Kong¡¦s judges are appointed by the chief executive, the head of Hong Kong¡¦s government, based on recommendations from a panel made up of the secretary for justice, current judges, lawyers and members of the public, a system that began in the colonial era. There is no known case of the chief executive rejecting a recommendation.
Beijing has no official role in choosing judges, though Hong Kong newspapers reported that China¡¦s central government was consulted on the decision to appoint Mr. Ma chief justice in 2010.
Legal experts say even if the courts remain independent, Beijing has other means of influence. The Standing Committee of the National People¡¦s Congress, China¡¦s legislature, has the power to interpret the Basic Law, Hong Kong¡¦s version of a constitution, which Hong Kong¡¦s judges must take into consideration. The Congress has used this power to make several controversial rulings in recent years.
A 2014 interpretation giving Beijing control of who could run for chief executive in any future direct elections set off the Umbrella Movement. Last year the legislature weighed in against lawmakers who protested while taking the oath of office. That led to the removal of six pro-democracy lawmakers, ending their camp¡¦s ability to block legislation.
¡§When they are talking about judicial independence, they are saying, ¡¥Well, the judges are not subject to the diktat of Beijing,¡¦ but through the mechanism of interpretation, they are,¡¨ said Gladys Li, a barrister and former chairwoman of the Hong Kong Bar Association.
¡§There¡¦s no use in saying we have the same old judiciary as before. The rules of the game have changed completely,¡¨ she added.
Last year, 12 lawyers from Britain, the United States, Mexico, Canada, South Africa and Malaysia created a stir in Hong Kong by issuing a letter that called the jailing of the protest leaders ¡§a serious threat to the rule of law¡¨ and warned that the judiciary ¡§risks becoming a charade, at the beck and call of the Chinese Communist Party.¡¨
Many legal experts in Hong Kong say those concerns are overinflated. While the pro-democratic politicians have condemned the prison sentences for Mr. Wong and other democracy activists, many have also said there is no evidence that the judges were subjected to outside influence.
¡§I didn¡¦t see any of that,¡¨ said Simon N.M. Young, a law professor at the University of Hong Kong. ¡§Even in other common law jurisdictions, you¡¦re going to find judicial opinion on a spectrum from liberal views to conservative views.¡¨
Hong Kong society is deeply divided on relations with Beijing, with significant numbers of young people distrustful of China¡¦s central government and supportive of greater autonomy or even independence from the mainland. Others, particularly older Hong Kong residents, condemn such attitudes and embrace Chinese rule, particularly as the country has grown stronger. There is, however, no data on the attitudes of Hong Kong¡¦s nearly 200 judges and magistrates.
Still, some warn that Beijing is finding new ways to undermine the judicial system. One is a plan to allow Chinese border agents to control a section of a new rail terminal that will connect Hong Kong to the rest of China. Some legal experts worry this will create a beachhead for Beijing that excludes Hong Kong¡¦s courts, something the government has denied.
¡§In the past, the only limitation of Beijing¡¦s power is our judiciary, because Beijing cannot dictate how judges rule,¡¨ said Eric Cheung, a law lecturer at the University of Hong Kong. ¡§What they now want to do is take away the review power of Hong Kong courts.¡¨
¡§It¡¦s quite scary,¡¨ he added.