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Friday, January 15, 2021, 10:47
Rule of law: CJ and SJ provide a positive vision for legal progress
By Grenville Cross
Friday, January 15, 2021, 10:47 By Grenville Cross

On January 11, the legal community convened for the Ceremonial Opening of the Legal Year, albeit, due to the pandemic, in reduced numbers. Following the address of the incoming Chief Justice, Andrew Cheung Kui-nung, there were speeches from the Secretary for Justice, Teresa Cheng Yeuk-wah, as well as from the heads of the legal profession. After an eventful year, issues of real substance were addressed, with everyone agreed that judicial independence is integral to the rule of law.

With the retirement, after a 10-year tenure, of his predecessor, Geoffrey Ma Tao-li, to whose work he paid tribute, Cheung highlighted three “fundamentals”, all of which are compelling. The first was a Judiciary which is both independent and impartial, but also brave. Any attempts to pressurize judges by threats of violence or doxing were, he said, doomed, and they were “as futile as they are reprehensible”. 

This affirmation is, of course, most reassuring, and also timely. During the social disorder, the protest movement firebombed the Court of Final Appeal, the High Court and the Shatin Magistrates Court, presumably hoping to frighten the judges. They also targeted individual judges, one of whom, because they did not like the sentences she imposed on rioters, they branded a “red” judge, and sought to intimidate by online vilification. Just last month, moreover, after a newspaper magnate charged with fraud was denied bail, because he was a flight risk and might re-offend, the Chief Magistrate, who made the decision, received a bomb threat.

Turning to his second fundamental, Cheung pointed to the importance of the Judiciary comprising people of a high quality. It was, after all, “only as good as the judges that man its courts”. Apart from being upright and defenders of rights, a judge, he said, has to take the decisions he believes to be right, regardless of whether it makes them “popular or unpopular”. Indeed, under their Judicial Oath, all judicial officers commit themselves to “safeguard the law and administer justice without fear or favor”, and the legal system will undoubtedly be as secure in the future as it has been in the past.

A modern legal system will be invaluable as the city enhances its role in national development, particularly as a legal hub in the Greater Bay Area. Hong Kong’s success, however, is not assured, and also depends on its people realizing their advantages and seizing their opportunities

In 2013, Ma created the Judicial Institute, and Cheung, as his third fundamental, envisages a heightened role for it in promoting judicial excellence. This, he said, was because a modern judiciary “must also be an efficient judiciary”. He therefore plans, as part of the Judicial Institute’s commitment to continuing judicial education, to arrange seminars and workshops on such topics as court craft, judicial ethics, and, crucially, sentencing. Given the inadequacy of some of the sentences imposed recently by particular magistrates, this renewed focus on sentencing is obviously welcome. Indeed, out of the 12 reviews of sentence initiated by the Secretary for Justice in the Court of Appeal in 2020, no less than 11 succeeded, which is indicative of problems in the magistrates courts which require attention.

Like the Chief Justice, the Secretary for Justice emphasized that the Judiciary must be respected, a point she also made at the opening of the legal year in 2019, when she condemned “baseless, arbitrary and even malicious attacks on some of our judges”. This time, she also made clear that unfair or unfounded remarks intended to exert “pressure or undue influence on our judges in dispensing justice will be to no avail”. Indeed, in 2020, in her capacity as guardian of the public interest, Cheng applied successfully to the High Court for an injunction to restrain the doxing of judges, judicial officers and their families, for which they, and everybody else who values the rule of law, will be grateful.   

Since, moreover, the enactment of the National Security Law dominated the legal landscape in 2020, and has attracted irresponsible criticism, Cheng also took the opportunity to explain that the National People’s Congress is China’s highest body of state power, and its Standing Committee was entrusted to formulate the law. She pointed out that, although the Basic Law (Art. 23) imposed a constitutional responsibility on Hong Kong to enact legislation for particular offenses relating to national security, this does not derogate from the right of the Central Authorities to legislate on national security matters when necessary. 

Since Hong Kong was unable, for 23 years, to discharge its national security obligations under the Basic Law, a legal vacuum existed which was ruthlessly exploited by anti-China forces, and the NPCSC needed to act to protect the country as a whole. Its intervention was, as Cheng explained, consistent with the “one country, two systems” paradigm, and the enactment of the law has actually ensured its survival. If they were listening, foreign mischief makers will hopefully have taken note, although, unfortunately, there are none so blind as those who will not see. 

Although there have been criticisms of the way in which judges are designated to handle national security cases, Cheng pointed out that these are “unfair and ill-informed”. This, of course, was correct, as much of the commentary has been not only ignorant, but also inflammatory. As Cheng explained, the Chief Executive only designates a list of judges in different levels of court to hear national security cases, and does not actually decide which judge will handle what case, as this is for the Judiciary itself to determine. Those who wish to be comforted, and not all do, will be reassured by this, just as they will have been buoyed by the Chief Executive’s earlier assurance that, before judges are designated, the Chief Justice will be consulted.   

Just as the Chief Justice recognizes that the Judiciary should move with the times, so Cheng appreciates that the Department of Justice must take the lead in modernizing the legal system, and connecting it with the community. In November, she launched the “Vision 2030 for Rule of Law” initiative, and, she explained, measures are in hand to promote understanding of the rule of law, the Constitution and the Basic Law. Full use will be made of such things as animated videos, drama, interactive workshops, and, where appropriate, international conferences. If, moreover, as part of the modernization process, something can be done to expedite the work of the Law Reform Commission, whose sub-committees invariably move at a snail’s pace, so much the better.

Through her department’s “3-E’s” projects, representing “Engagement, Empowerment and Enrichment”, Cheng also plans to raise awareness of a law-abiding society, equip youth with a true understanding of the rule of law, and provide the legal community with opportunities to broaden its horizons. She also disclosed that the department will continue to promote LawTech, which will include facilitating the Hong Kong Legal Cloud’s capacity to provide safe, secure and affordable data services for local legal and dispute resolution services.   

If Hong Kong’s legal arrangements develop along the lines adumbrated by Cheung and Cheng, it will go from strength to strength. A modern legal system will be invaluable as the city enhances its role in national development, particularly as a legal hub in the Greater Bay Area. Hong Kong’s success, however, is not assured, and also depends on its people realizing their advantages and seizing their opportunities. If they do that, a bright future beckons for everybody for whom Hong Kong is home.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of Public Prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily. 

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