It is high time Hong Kong reformed its judicial system to fit in with the city’s post-handover constitutional order, local legal pundits said on Wednesday.
The legal experts added their voices to calls for an overhaul of the judiciary a day after Zhang Xiaoming, deputy director of the State Council’s Hong Kong and Macao Affairs Office, called for judicial reform in a video speech at the Basic Law 30th Anniversary Legal Summit.
Zhang quoted a commentary published in September by retired Court of Final Appeal judge Henry Litton, who called for urgent judicial reform as he believed the special administrative region’s courts misinterpreted the Basic Law by applying overseas values, which showed “total insensitivity to the policy of ‘one country, two systems’”.
Litton, in his article in a Hong Kong newspaper, cited the case concerning face-covering decided by two High Court judges in November last year.
Calling the case “breathtaking”, Litton said the judges roundly declared that “the Emergency Regulations Ordinance was incompatible with the new ‘constitutional order’ established after June 1997 for Hong Kong”.
“The judges, in effect, elevated themselves to be on a par with the National People’s Congress, deciding what the constitutional order for Hong Kong should be, thus empowering themselves to strike down an essential piece of primary legislation,” Litton said.
Maggie Chan Man-ki, Hong Kong deputy to the National People’s Congress and a solicitor, agreed that the city’s judiciary is in dire need of reform.
The decision of the Standing Committee of the NPC, as the nation’s top legislature, has unchallengeable legal authority and is the source of the Basic Law and other local laws, she said, adding that this is the most fundamental knowledge and a necessary requirement of any legal practitioner, yet some of the judicial members failed to grasp that.
“It has been 23 years since Hong Kong’s return to the motherland, yet the existing judicial system of the city failed to fully reflect the new constitutional order after the return,” Chan said.
Through judicial reform, the city’s legal authorities could start to provide systematic, professional on-the-job training related to the nation’s Constitution, the constitutional order, as well as the Basic Law for judicial members, to ensure that the city’s judiciary has not “gone off the rails”, Chan said.
Law professor Willy Fu Kin-chi, vice-chairman of the Hong Kong Legal Exchange Foundation, also welcomes judicial reform, suggesting that a sentencing committee be set up.
Fu recalled that over the past two years, he had seen local courts pass down judgments that stirred up a lot of controversy in the society, in particular those related to the violent protests in 2019. “Some of the judges were clouded by their political biases and made incorrect applications of legal principles, which prompted the secretary of justice to apply for reviews or appeals of the verdicts,” he said.
A sentencing committee to look at the penalty for various offenses could be helpful to address the issue, Fu said.
Executive Councilor and barrister Ronny Tong Ka-wah said every organization, including legal entities, always has room for improvement; hence, judicial reform would be a matter of course. He also expressed his hope that such reform would be initiated by the legal sector themselves.
Tong said that judicial reform might serve as a valuable chance for the court to break down the language barrier and to better convey legal knowledge to the public.
Tong said currently, most judgments in prominent cases, which could lead to a significant impact on society, were written in English, while only a few of them had Chinese excerpts, so many residents cannot understand them. This has a significant impact on society, he said. “I have also been receiving many calls from reporters on how to interpret the judgments over the years,” he said.
Tong said he would like to see more resources be devoted to this aspect if there is judicial reform.
