Barrister Jessica Leung says 2020 has left many Hongkongers downcast about the city’s future. Reflecting on developments in the judicial system, she understands why.
Courts came under increasing political pressure as cases relating to the 2019 protests were heard. State-run newspapers Ta Kung Pao and Wen Wei Po lambasted a judge who ruled that Hong Kong police officers must display their badge numbers while on duty.
Pressure on the courts also appeared to come from the executive, with Chief Executive Carrie Lam defending the official stance that there is no separation of powers under Hong Kong’s “executive-led” system. The government, however, has given repeated assurances that the courts still enjoy judicial independence.
The leading Civic Party member told HKFP in an interview that Lam’s comments went against the foundations of the common law system. “From what we learned from our common law education, separation of powers is literally separation,” she said, adding that there should be no conditions placed on the courts’ independence.
“Judicial independence should not be built on any premises. We should not set any assumptions on judicial independence.”
“What is meant by independence is to be independent, regardless of your beliefs or regardless of whether you are patriotic enough,” she said, referring to comments from mainland officials that “only patriotic people” should serve in Hong Kong’s legal system.
Leung stressed that the separation of powers as part of a system of “checks and balances” was all the more crucial, “especially when we see that the Legislative Council is not doing its function properly.” The legislature now has no effective opposition after the entire democratic camp resigned in solidarity with four of their ousted colleagues in mid-November.
An ‘aggressive’ DoJ
A key factor in the preservation or erosion of judicial independence is how the Department of Justice (DoJ) pursues cases, Leung said. “The judiciary cannot actively come out to comment on… current issues. The judiciary can only take action when cases come before the court. So if the DoJ does something aggressive — say appeals or lays charges — the courts have to hear it.”
Leung said the crux of the problem arose in circumstances where the department doggedly pursued cases with a political agenda. “The role of the DoJ is to present the case fairly. The role of the DoJ is not to convict,” she said “But what I observe is that quite a lot of representatives from the DoJ are trying to target certain defendants.”
