Few would have argued against Chief Justice of the Court of Final Appeal Geoffrey Ma Tao-li’s assertion that there must not be a politicization of the judiciary and its functions. It is simply common sense.
Yet the chief justice’s recent statement issued in response to controversies surrounding some court rulings has failed to quell public criticism of the judiciary. Rather, it stoked the fire.
This has given rise to the question of who have politicized or are politicizing the judiciary and its functions?
Recently, the public challenged what they called the judges’ undue leniency toward offenders in at least a dozen anti-extradition-related cases. In the wake of public discontent, the Department of Justice filed two review applications to the High Court. These included one for a review on the sentence handed down to a 16-year-old girl, who was given a 12-month probation order for possessing bomb materials in a lower court ruling, and one for a 15-year-old boy who had pleaded guilty to arson. The latter has resulted in the replacement of an 18-month probation order with time in a correctional facility.
Arguments that so many controversial court decisions happened in a short period of time all by chance are lame. Indeed, many members of the public genuinely believe some judges have allowed their political persuasions, or even bias, to work into their decision-making process.
Demonstrating undue leniency toward protest-related offenders aside, some judges have also weirdly praised the offenders as “brilliant youth” or “future pillars of society”. It is safe to assert that the demonstration of such thinly veiled political preference by judicial officers in the court has never been heard of in any other place.
It is, therefore, unconvincing to argue that the recent public criticisms of the judiciary were not informed, solidly based or properly made. Moreover, many of the critics are lawyers by training; they know the law as much as the judicial officers in question.
If the judiciary genuinely cares about public confidence in the administration of justice and is sincere in upholding the rule of law in Hong Kong, they should embrace the idea of introducing necessary judicial reforms — including the setting up of a sentencing council to formulate sentencing guidelines — to prevent judicial officers from abusing their discretionary power and letting their personal bias interfere with their adjudications.
Any suggestion that the setup of a sentencing council will compromise judicial independence and encroach the judiciary’s exclusive powers won’t stand, and is no different from the assertion that the United Kingdom has lost its judicial independence because the country set up a sentencing council decades ago.
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