Hong Kong’s foreign judges target of criticism amid political tension

By Huang Jingjing Source:Global Times Published: 2017/2/28 19:33:39

Some mainland commentators have alleged the verdicts against seven Hong Kong policemen were harsh and politically motivated, suggesting Beijing revise the region's law to increase the central government's power

Some legal experts disagree and believe the sentence was not wrong and displays the region's judicial independence

There is widespread agreement that Hong Kong should work toward having an all-local judiciary

Supporters of the seven police officers, who were sentenced to two years imprisonment on February 17 for assaulting activist Ken Tsang during the 2014 Occupy Central protests, march along a Hong Kong road on February 18. Photo: AFP

Supporters of the seven police officers, holding banners reading "Thank police for maintaining order, Stop thugs making disturbances," march along a Hong Kong road on February 18. Photo: AFP

Verdicts that Hong Kong courts have recently handed down against seven local policemen and a former chief executive have triggered controversy in the region and on the mainland, with some claiming an anti-Beijing conspiracy is at work but others defending Hong Kong's tradition of judicial independence and objectivity.

Many observers, especially on the mainland, believe the sentences given to figures they identify as pro-central government were harsher than those given to pan-democracy activists that have gotten in trouble with the law due to judges' alleged political bias.

He Xin, a member of the 12th National Committee of the Chinese People's Political Consultative Conference, said on his Weibo that "China made a mistake in that it only took over Hong Kong's defense and diplomacy, but not its judicial power."

Some scholars have even suggested Beijing revise the Basic Law, which has served as Hong Kong's constitution since July 1, 1997 when China resumed its sovereignty over Hong Kong, to ensure the central government has the final say in criminal cases.

However, some legal experts have voiced opposing opinions, saying that the verdicts were in accordance with the law and practice of judicial independence. And they don't think it is appropriate for the central government to take the power of final adjudication away from Hong Kong, as this would likely intensify already-high tensions between Hong Kongers and mainlanders.

 

Case controversy

On February 22, Justice Andrew Chan of Hong Kong's High Court announced that the region's former Chief Executive Donald Tsang Yam-kuen would serve 20 months in prison for misconduct in office. While on February 17, British-born Judge David Dufton of the District Court sentenced seven Hong Kong police officers to two years in prison after they were found guilty of "assault occasioning actual bodily harm" for their beating of activist Ken Tsang on October 14, 2014 during the Occupy Central protests, which was captured on film.

The officers' prison terms were originally two years and six months, but were reduced by six months after the court took into account their "long and distinguished careers," The Hong Kong Free Press reported. They will also lose their jobs.

These sentences sparked discontent in some quarters, with some claiming that the officers - who could have faced up to three years behind bars - were given unfairly harsh verdicts when compared with punishments handed out to pan-democracy protesters who were found to have broken the law.

Ken Tsang, who poured liquid that smelled like urine on police officers who were clearing protestors before receiving the beating, was sentenced to five weeks in prison after being found guilty of attacking police - which can carry up to a two year prison term - in May last year. Tsang's case, and those of several other activists found guilty of crimes related to disorderly protesting, with sentences ranging from community service to suspended jail terms, aroused ire in those who accuse the region's legal system of political bias.

Besides written appeals for leniency to the court and chief executive, 38,000 people gathered in Hong Kong Wednesday to show their support for the policemen.

Tiffany Chen Ming-Yin, vice chair of the Hong Kong-based China Star Entertainment Ltd, said on her Weibo account that "The sentence result was bitterly disappointing. If similar protest happens again, will policemen continue to go all out to maintain order?...If such a thing happened in the US, [Tsang] would be shot dead." The post has drawn 8,500 reposts and 78,800 likes.

The nationality of Hong Kong's judges has become a hot issue. Among the 17 judges of the Court of Final Appeal (CFA) in the region, only two solely hold Hong Kong citizenship, while the others are nationals from other common law jurisdictions such as UK and Australia, according to guancha.cn, a Chinese online news and comments aggregator. However, the judges of the District and High courts are mostly local Hong Kongers.

"The verdicts were undoubtedly political. Foreign judges supporting pro-independence activists shows that the foreigners judging Chinese is the sequel of colonization," Sima Nan, a Maoist scholar, said on his Weibo.

Guo Songmin, an independent scholar, claimed the conviction is an act of revenge toward Beijing for an interpretation issued last year by China's top legislature, the Standing Committee of the National People's Congress, which led to the disqualification of two pro-independence legislators of the Hong Kong Legislative Council.

"They want to demonstrate who is really in charge of Hong Kong and encourage Beijing's opponents in the region to create chaos," Guo said in a video discussion organized by m4.cn, a Beijing-based political commentary website which is dedicated to "helping young Chinese build healthy, constructive and progressive minds."

Disagreements

However, some experts have defended Hong Kong's judicial system from these accusations.

Lin Feng, member of the Bar Council of the Hong Kong Bar Association and director of the Centre for Judicial Education and Research, City University of Hong Kong, told the Global Times via e-mail that he doesn't agree with accusations that the judges had "political intentions."

"According to my research and understanding of judges in Hong Kong, they are highly independent as individuals. It is extremely difficult and risky for any judge to persuade other judges to write a judgment because of political intention," Lin said.

"Each individual judge may have his or her own political position. But it's unconceivable that a judge will allow his political intention to influence a criminal judgment."

Mo Jihong, a constitutional professor at the Law Institute of the Chinese Academy of Social Sciences, argued that people are "exaggerating" when they say that China's sovereignty over Hong Kong has not been completely recovered.

"It's difficult to say the judge was wrong. Foreign nationals being judges in Hong Kong is permitted in the Basic Law, which is part of the Chinese legal system," Mo, who is also a member of the Beijing-based Chinese Association of Hong Kong & Macao Studies, told the Global Times. "The public's legal awareness is still poor and many see verdicts sentimentally," Mo added.

Zhang Dinghuai, deputy director of the Center for the Basic Laws of Hong Kong and Macao at Shenzhen University, South China's Guangdong Province, says there is no doubt that the policemen were guilty.

According to Reuters, the policemen were filmed assaulting Tsang when he was handcuffed on the ground.

"Hong Kongers have received Western education, and they especially value human rights and are disgusted with governmental infringement on this," Zhang explained to the Global Times.

The Occupy Central protestors demanded the government implement universal suffrage, blocking the roads of downtown Hong Kong. The protests, which lasted for 79 days, were slammed by both the central and regional governments as illegal, "impeding universal suffrage" as well as "damaging the prosperity and stability of Hong Kong."

Both Sima and Guo advised Beijing to grasp this opportunity to revise the Basic Law, prohibit foreign nationals from being judges in Hong Kong, and ensure the final say on criminal cases is made by Beijing's Supreme People's Court.

Lin believed these scholars are "too emotional." "It is not really necessary to revise the Basic Law and fire those foreign judges," he said, citing that Hong Kong has already stopped recruiting judges from outside China to any court other than the CFA.

"This may arouse more discontent and further split Hong Kong society, and the authority of the justice system will evaporate," Zhang noted.

In recent years, tensions between Hong Kongers and mainlanders have heightened, and a series of anti-parallel trading protests have been staged, with locals complaining about shortages caused by mainlanders eager to buy popular products, especially those related to health. The pro-independence movement has also grown.

Judges to be updated

Mo said the number of foreign judges in Hong Kong should be gradually reduced but they should not be abandoned immediately.

"The number of Chinese who are competent for the post are still too limited. We need to nurture more high-end legal talents who have a good command of several languages and the laws of different legal jurisdictions," Mo noted.

As part of the UK's handover of Hong Kong to China, Beijing agreed to retain its foreign judges to ensure a smooth transition and maintain the continuity of Hong Kong's legal system.

Lin Feng said the reservation of foreign judges has also given confidence to foreign investors and traders in Hong Kong, adding that the judges helped "change Hong Kong from a chaotic, lawless and corrupt place to an orderly and lawful one" by following the UK's common law legal system.

He said most judges were foreigners in the colonial era due to a shortage of local talents, explaining that the first law school in Hong Kong was established in 1969 and few locals could afford to study abroad before that.

In addition, the colonial government's discrimination against locals, and locals' lack of interest in becoming members of the judiciary rather than better-paid lawyers also kept numbers of local-born judges low, he cited.

"But as our judges have become professional enough, it's no longer essential to have foreign judges in Hong Kong," he noted. "Especially at a time when China is enhancing the rule of law."

But for some, this transition cannot come soon enough.

"The severe punishment of the seven policemen reveals that the foreign judge used ideas from his original country to reach his decision and overlooked the separatist background of the movement," Tian Feilong, a legal expert and associate professor at Beijing's Beihang University, told the Global Times earlier.

Foreign judges can endanger the order of the Basic Law by wrongly seeing Hong Kong as a separate entity instead of a part of China, and sympathizing with the Occupy Central protesters, Tian noted.


Newspaper headline: Judging the judiciary


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