An independent judiciary is the cornerstone of Hong Kong freedom – a fact Beijing knows all too well – and last week’s alarming comments from Carrie Lam regarding separation of powers were just a continuation of efforts to undermine the courts and dismantle the city’s autonomy.
Of the many differences between Hong Kong and the mainland – like elections, privacy laws and internet freedoms – it is the independent judiciary, rule of common law and presumption of innocence in court that sets Hong Kong apart.
The theory of separation of powers suggests a nation’s freedom depends on the three branches of government — legislative, executive and judicial — being independent of each other and having their own separate institution.
So, in theory, the legislative (in Hong Kong’s case the LegCo) make the laws, the executive or administration put the laws into action and the judiciary is given the power to make judgements on the law.
When it was reported last week that school textbooks would no longer refer to separation of powers and that students would instead be taught that all three branches of authority ultimately answer to Beijing it was an early warning sign that the CCP is coming for the court system.
Of course the news of the textbook censorship was soon followed by rhetoric from officials, but it is best not to get caught in the confusing arguments presented by Kevin Yeung and Lam regarding Basic Law and Separation of Powers; the statements serve only to muddy the waters of debate.
Just like Chinese vice premier Han Zheng’s comments last year that ending protests was the “common responsibility” of government, legislature and judiciary, the textbook censorship and Lam’s comments are reminders that it is the city’s courts that are in the CCP crosshairs.
Then on Monday an even stronger statement from the Hong Kong and Macau Affairs Department asserted that judicial independence does not mean “judicial dominance” or “judicial supremacy” and that those claiming separation of powers are “trying to confuse the public.” This is a classic CCP response to criticism which amounts to a child-like tantrum for being called out: “We aren’t trying to confuse matters, you are!”
This isn’t about separation of three powers – as separation scarcely exists between the rigged game of LegCo and administration anyway, not to mention the CCP and its overarching influence – but it is about separation of powers, and the only remaining integrity is in the courts, which can still rule against the state.
What matters most in a civil society like Hong Kong is that all are equal before the law – even government officials – and that the judiciary is free of political interference.
Recently judges have shown some steel in standing up to police prosecutors. When district councillor Jocelyn Chau was acquitted of a police assault charge and the magistrate said officers “told lie after lie” and a magistrate that cleared a 42-year-old man of police assault told the accusing officer he was “talking through his hat” after viewing CCTV evidence that contradicted his testimony.
Still, some judges are deemed “blue” or pro-Beijing by critics and in April judge Kwok Wai-kin offered sympathy to 51-year-old mainland man Tony Hung Chu, who had attacked three people with a 31cm (12-inch) beef knife at a Lennon Wall in Tseung Kwan O last August.
On Monday it was reported that Magistrate Ho Chun-yiu, who was subject to harassment from pro-Beijing campaigners for ruling a police witness unreliable, will be transferred to become a High Court Master and will no longer preside over trials.
The courts are already straining under the weight of an overwhelming case load brought about by an out-of-control police force that has made more than 9,000 protest-related arrests.
The Department of Justice also seems intent on making a mockery of the system. Last week it sparked outrage when it decided against prosecuting two men who had surrendered to police on suspicion of throwing 30 pets from a high-rise building, killing 18. Last week it was criticised for playing politics when a pro-Beijing activist’s son was found guilty of seriously beating his step-father but escaped a criminal record after recommendations from the Department of Justice.
The highest profile case where courts have ruled against the government in the face of political pressure was last November when a Hong Kong court overturned a government emergency ban on protesters wearing masks to obscure their faces.
That was partially overturned on appeal in April but will now be heard by the Court of Final Appeal in what shapes as another crucial test of independence.
The CCP is much more comfortable operating with a system of arbitrary arrests, forced confessions and courts that boast conviction rates of 99.9 per cent on the mainland. The Hong Kong legal system, set up by the British before handover and still boasting a sprinkling of hand-picked foreign judges and high levels of autonomy with regards appointments, is more than a mere annoyance for Beijing, it is the only non-protest resistance that stands in the way of ultimate control.
The CCP have complete control of the government, and have turned the police into a political tool. It has even bypassed the Basic Law entirely to implement the National Security Law(NSL) – something more akin to the mainland system with its vague definitions and sweeping powers. The extraordinary powers of the NSL are yet to be fully flexed but Beijing has to be content to chip away when it comes to Hong Kong’s courts – which, for now, stand as a shining point of difference to the mainland – and may be the last line of defence for a free Hong Kong.
(Michael Cox is a journalist and Hong Kong permanent resident currently based in Australia. He has previously written for the South China Morning Post, The Age (Melbourne) and Australian Associated Press. )
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