Hong Kong’s new chief justice promised to defend the city’s judicial independence. Can he?

These vague parameters have given authorities broad powers to crack down on government opponents, while Beijing continues to tighten its grip on the supposedly semi-autonomous city. Hong Kong officials had previously promised that the law would be limited in force and would target only a small number of marginal activists. However, critics claim that, since its introduction, the law has been used to vigorously repress the once vibrant pro-democracy movement in the city.

With the legislature and administration in sync with Beijing, the courts are the only branch of government that maintains some degree of autonomy – but one that can be severely tested by the blunt instrument of the security law.

In his speech, and at a news conference later, Cheung avoided discussing the details of the law, arguing that this would be inappropriate, as it will soon be discussed in court. But he went back to a key point over and over.

“It is my mission to do my utmost to defend the independence and impartiality of the Hong Kong judiciary,” Cheung told reporters. “This is my mission and I will do my best to fulfill it.”

That independence can be harshly put to the test in the coming year and, if lost, could be costly to Hong Kong’s legal system and fundamental freedoms. In a speech after Cheung, Philip Dykes, head of the city’s Bar Association, noted that “without judicial independence, a pearl of great value, we could very well pack and escape, as Hong Kong is nothing without it.”

rule of law

When Hong Kong was handed over to the People’s Republic of China in 1997, the city’s new rulers, concerned with not disturbing its economic dynamo, were careful to speak of the importance of the rule of law and the independent judiciary for Hong Kong’s continued success under the principle known as “one country, two systems.”

Hong Kong’s legal system has not always had the stellar reputation it is now proud of. When the British established their colony in the newly conquered territory in 1842, they paid little attention to how the new Chinese subjects in the crown would have access to justice.

“In colonial Hong Kong, racial prejudice and intolerance increased the social injustice inherent in the strong class division in Victorian Britain and were reflected in the functioning of the courts,” writes Steve Tsang in “A Modern History of Hong Kong: 1841 – 1997. “The language of the courts was English and interpreters were rarely provided – meaning that many Chinese defendants did not know what was going on while being run over by an unknown legal system and unsympathetic judges.

However, Tsang notes that even in the early years, when discrimination was widespread, the “rule of law determined the structure and procedures of the legal system, prevented some governors from pursuing certain policies detrimental to the local community and helped to ensure the acquittal of many unjustly accused. ”

After 1997, the rule of law also helped to limit the city’s new rulers. Thanks to its strong protections for speech and assembly, Hong Kong has maintained a vibrant political and media scene unlike anything seen in China, with annual demonstrations – such as the June 4 memorial for the Tiananmen Square massacre – iconic of these freedoms .

But the conflict between the country and the two systems it contains has grown over time, reaching a breaking point in recent years.

The prospect of being subject to Chinese justice, through an extradition project with the continent, sparked the anti-government unrest that rocked Hong Kong in 2019. However, while the protests were successful in defeating the proposed legislation, they also led to eventual imposition of the national security law last year, creating a series of political crimes and undermining the protections contained in the Basic Law, Hong Kong’s de facto constitution, while also creating the possibility that defendants could be transferred to China to judgment in some circumstances.

“We must defend the city’s rule of law, but we must also safeguard the national constitutional order,” said Zhang, adding that many “problems” were exposed in the Basic Law that needed to be resolved.

Judicial rearguard

In his comments this week, Cheung, the new president of the court, seemed to address these controversies, noting that, in certain cases, the judges “have been subjected to intense scrutiny” and subject to “party criticism”.

“While the freedom of expression for everyone in society must be fully respected, there should be no attempt to exert undue pressure on judges in the performance of their judicial functions,” said Cheung. “Judges must be fearless and prepared to make decisions according to the law, regardless of whether the results are popular or unpopular, or whether the results would become popular or unpopular.”

But what exactly the law means can be a moving target as Beijing takes a more practical approach to Hong Kong’s legal system.

Under the Basic Law, while Hong Kong has a “Final Court of Appeal”, the real arbiter of the city’s constitution is the National People’s Congress of China, the country’s parliament, which can issue “interpretations” of various articles of the Basic Law – essentially rewriting on the fly.

In the past, this power was rarely used, but it has been used more and more in recent years. Observers expressed concern that if Hong Kong’s courts apply national security law more leniently than Beijing would like, the national government could intervene to force them to do the opposite.

And answering a question about such interventions by the central government, Cheung acknowledged that there was little that Hong Kong judges could do. “When there is an interpretation, the court must follow,” he said.

In an interview this week, Young noted that “central and local governments have complete confidence in the new president of the court”, which could prevent a barrage of interventions in the near future.

“The first batch of (security law) cases to reach the courts will be seen by everyone as test cases to see the true extent and limits of the law,” he said. “My prediction is that there will be no direct interference (from Beijing) to influence or alter the results of these cases.”

Tsang, a Hong Kong historian and director of the SOAS China Institute in London, disagreed, however, predicting that the court’s president “will be under enormous pressure” in the coming years.

“(That) will be extremely difficult for the Chief Justice to resist in the long term, which means that the erosion of judicial independence is unfolding and, unless there is a change of government in Beijing, it is unlikely to yield,” he said. .

But Tsang said that Cheung, in accepting this role, may have put himself in an impossible position.

“Efforts to protect Hong Kong’s judicial independence are now a rearguard operation, and the Chief Justice’s determination to stand firm or not will just set the pace for this process,” said Tsang. “It is unlikely that he will be able to maintain the line beyond the short term, however determined he may be.”