HK’s courts are still independent. Some want to rein them in

01-Dec-2020 Intellasia | JapanTimes | 6:02 AM Print This Post

They were arrested on one of the most violent days in Hong Kong last year, when protesters threw firebombs at the main government offices and set a barrier aflame outside police headquarters. But last month, a judge quickly dismantled the prosecutors’ case against them.

In his ruling, District Judge Sham Siu-man said that police officers had given unreliable testimony and that they appeared to have gone against their training by using batons to subdue one protester. He found all eight defendants not guilty, saying one had merely been asking officers to do their job when she used a loudspeaker to urge restraint.

The next day, a Chinese government-owned newspaper in Hong Kong splashed a photo of the judge, wearing his court wig and robes, on its front page beside images of protesters and burning barriers. “Strange opinion issued by the court,” the headline read. The judge, it continued, says the protesters “were actually the ones wronged.”

As the Chinese Communist Party extends its grip over Hong Kong, pro-Beijing forces are increasingly targeting the city’s independent judiciary, an institution that forms the backbone of this global centre for commerce and capital.

State newspapers have railed for months against “yellow judges” seen as lenient toward protesters. (The color yellow is a symbol of the protest movement.) Party officials have called for an overhaul of the courts to rein in judges’ autonomy. The city’s leadership has exerted more influence over the selection of judges.

“It would be naive for anyone to think they will leave the judiciary alone. Why would they?” said Dennis Kwok, who represented Hong Kong’s legal sector in the local legislature until he was removed from office this month. “They want to get their hands on everything.”

The far-reaching national security law that Beijing passed this summer gives the state even more authority over the Hong Kong judiciary. China’s legislature also bypassed the local courts to force the ouster of four lawmakers in November, exercising new powers that some lawyers and legal scholars worry could be turned against judges.

The Hong Kong judiciary, with its British-born, 170-year-old tradition of robes, wigs and independence, is at the heart of an existential fight over the region’s future.

Hong Kong’s courts firmly divide the city from mainland China, where the opaque legal system is controlled by the Communist Party. The city’s underlying rule of law has helped attract droves of multinational corporations, bringing a flood of money that has made Hong Kong one of the world’s leading cities.

The judicial system’s integrity is fiercely defended in Hong Kong. The demonstrations that engulfed the city last year began over a proposal that many saw as potentially undermining the local courts, by allowing extraditions to mainland China.

In addition to imposing the national security law, Communist Party officials and state newspapers in the city are pushing for still more control. In a continuing series, Ta Kung Pao, a newspaper owned by the Chinese government’s liaison office in Hong Kong, has demanded that judges be patriotic. It has called for establishing a council to set the length of sentences, an external panel to handle complaints about judges and greater scrutiny over the judicial selection process.

“Beijing understands that this is an area that people will be very sensitive to and the international community will be watching over,” said Eric Cheung, a legal scholar at the University of Hong Kong. “Beijing may not want to be seen as interfering with judicial independence, but I think it is very clear some Beijing officials are not happy with some decisions made by our judges.”

Even before the protests and the security law, Beijing had significant judicial oversight. When China reclaimed Hong Kong from Britain in 1997, the ultimate authority for interpretation of its laws moved to Beijing.

The Standing Committee of the National People’s Congress, China’s rubber-stamp legislature, has the power to interpret the Basic Law, Hong Kong’s local constitution. Several of its rulings have gone against the city’s pro-democracy camp. The committee’s interpretation of oath-taking in 2016 paved the way for the removal of six pro-democracy lawmakers who had protested during their swearing-in ceremonies.

The security law has further constricted the city’s courts. It allows for some cases, such as those involving foreign forces or imminent threats, to be tried on the mainland. Under the law, Carrie Lam, Hong Kong’s chief executive, will designate judges for trials on national security charges.

Hong Kong’s Department of Justice recently pressed beyond the scope of the law, asking that a judge authorised to hear national security matters handle the trial of Tam Tak-chi, an activist charged with sedition and unauthorised assembly. Those charges do not fall under the security law.

Britain is considering whether to bar its judges from serving in Hong Kong. Foreign judges serve temporary roles on the Court of Final Appeal so the city can maintain ties to common-law countries.

Both the pro-Beijing and pro-democracy camps have found fault with the courts over protest cases perhaps signaling that the judiciary remains an impartial institution, with a range of outlooks among judges.

A High Court judge was criticised by pro-Beijing figures for ruling this month that the riot police had not been carrying sufficient identification and that mechanisms for dealing with complaints of police mistreatment needed to be improved. The Hong Kong Journalists Association had filed the suit over the police’s handling of reporters during protests.

Some judges have been condemned by the opposition for giving tough sentences to demonstrators or for appearing to sympathise with people who attacked protesters. After a district judge compared the protest movement to terrorism in an April ruling, Geoffrey Ma, chief justice of the Court of Final Appeal, barred him from future cases related to the political upheaval.

The criticism of judges, from both sides, has grown so frequent this year that Ma issued a lengthy defense of the judiciary’s independence.

“It is wrong to make serious accusations of bias or breach of fundamental principles merely based on a result of a case not to one’s liking,” he wrote in September. “The judiciary is not above criticism by any means, but any criticism must be solidly based and properly made. In particular, there must not be a politicisation of the judiciary and its functions.”

So far, the protest cases that have been prosecuted do not indicate that the courts lean strongly to one side or another.

Of 10,148 people arrested in the protests, 2,325 have been prosecuted for crimes such as rioting, unlawful assembly or assault. As of the end of October, 372 had been convicted and 77 acquitted, according to Hong Kong police records.

Rioting, in particular, has been a tough charge to prove. Among the protest-related rioting cases that had been prosecuted as of the end of October, there were four guilty pleas, one conviction and 12 acquittals, according to an analysis in Stand News, a local online publication.

As the demonstrations heated up last year, police officers used increasingly aggressive tactics, charging into crowds and grabbing stragglers. But in court, authorities have struggled to explain why defendants were targeted and to provide evidence of their wrongdoing.

Sham, in his ruling last month, wrote that the officers might have been responding out of anger when they arrested Jackie Chen, a social worker charged with rioting. Chen had held a small loudspeaker during the protest and urged police to let people leave peacefully.

“Someone stood up and reminded them to act according to the law,” Sham wrote. “This might make some police officers feel unhappy, but if the person is charged with rioting, I can’t see how the person would become a rioter.”

The government is appealing the acquittals in that case.

Chen said she is frustrated by the process and contends that the government’s apparently unending pursuit of such cases undermines the legal system. But she added that her initial victory gave her some solace.

“Everyone still has one ray of hope: that you face a normal judge in court and hope that you would not be found guilty,” she said. “But even if you are not found guilty, you could expect that decision to be appealed. Then you hope that the appeal wouldn’t succeed.”

https://www.japantimes.co.jp/news/2020/11/30/asia-pacific/crime-legal-asia-pacific/hong-kong-courts-independence-china/

 

Category: Hong Kong

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