Judicial independence exists as a fact: top judge

Chief Justice Andrew Cheung said on Monday that Hong Kong’s judicial independence “exists as a fact” and any unsubstantiated criticism of court decisions is meaningless and hollow.

Speaking at the opening ceremony of the legal year, Cheung said the subject of Hong Kong’s judicial independence has attracted a fair amount of attention and comments, both locally and overseas.

He said while constructive comments on the judiciary are always welcome, unsubstantiated remarks are of no value to the rule of law and judicial independence.

“When such attention and comments are not based on objective facts and rational arguments, but rather on surmises, political stances or geopolitical considerations, they are of no value to the advancement of the rule of law in Hong Kong or the upholding of judicial independence,” he said.

“Criticisms of court decisions which are made without first ascertaining the facts in a case or reading and understanding the reasons for the court’s decision are as meaningless as they are hollow. So is any unsubstantiated doubt over the courts’ independence. Judicial independence in Hong Kong exists as a fact. And we are here today to bear witness to this fact.”

He stressed that the city’s judicial independence is an “essential lynchpin of the rule of law in Hong Kong” and is constitutionally guaranteed by the Basic Law.

“For those who are interested in finding out how the constitutional guarantee on judicial independence in Hong Kong is practised on the ground, our court hearings are open to the public, our judicial decisions are publicly announced, and the courts’ reasons are published for everyone to study,” he said.

Cheung made it clear foreign judges have confidence in Hong Kong’s judiciary.

Speaking to reporters after the ceremony, he pointed out that only one overseas non-permanent judge (NPJ) has resigned from the bench since 2020.

“I do not agree that the foreign judges, foreign NPJs are losing confidence in judicial independence in Hong Kong. If you look at these objective facts, I would say rather the reverse i.e. in fact they continue to show support and confidence in judicial independence in Hong Kong.”

Cheung also said in his speech that the arrangement under Article 44 of the national security law for the chief executive to designate judges to handle national security cases has no bearing on the impartiality of the courts.

He noted that the chief executive may consult the chief justice on the matter, and that all designated judges are bound under the judicial oath to administer justice without fear or favour, self interest or deceit.

Meanwhile, Cheung said there had been an increase in recent months in attempts to intimidate judges handling national security cases and those relating to the social unrest of 2019.

“These attempts are a direct affront to the rule of law and judicial independence. They certainly deserve condemnation and indeed many have spoken out against them in strong terms,” he said.

“What should also be stressed is that these attempts to threaten and pressurise our judges are completely futile and pointless. The work of our courts remains wholly unaffected by them and our judges continue to dispense justice as it ought to be.”

In her speech, Justice Secretary Teresa Cheng said with “one country” consolidated fundamentally and national security protected, she is confident that the common law system will continue to apply in Hong Kong beyond 2047.

“President Xi Jinping and various leaders of the Central People’s Government have repeatedly expressed unequivocal support and stern determination to implement ‘one country, two systems’. It is therefore a matter for us to uphold the root of ‘one country’ so that the ‘two systems’ continue to flourish, and with it the continued application of the common law,” she said.

Cheng also said that the first and foremost task for the SAR as a whole is to fulfil its constitutional duty to enact national security laws under Article 23 of the Basic Law.
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Last updated: 2022-01-24 HKT 20:32