Did Elsie Leung really hurt HK's judicial independence?

Updated: 2012-12-21 07:09

By Tam Yiu-chung(HK Edition)

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Did Elsie Leung really hurt HK's judicial independence?

Judicial independence is a crucial cornerstone of Hong Kong society's prosperity and one of its core values. Maintaining judicial independence has always been a key issue of public concern. Some political parties and groups, however, use "protecting judicial independence" as an excuse to hurt their rivals, or anyone who does not agree with them.

A perfect example of such bigotry is found in the verbal attacks on Elsie Leung, deputy director of the Hong Kong SAR Basic Law Committee, after she criticized certain decisions by Hong Kong courts, which she said were based on erroneous interpretation of the Basic Law.

As soon as Leung made the critical remarks during a lecture earlier this year, many parties, groups and organizations launched waves of verbal attacks against her, in the name of protecting judicial independence, accusing her of pressurizing courts and judges, damaging judicial independence and destroying the "no change for 50 years" promise that came with the "One Country, Two Systems" principle.

Before we find out whether those self-proclaimed defenders of judicial independence have the necessary ground for accusing Elsie Leung of those terrible things, we must first be absolutely clear what the definitions and principles of judicial independence are.

Today the definitions and principles of judicial independence accepted by the international community are derived from four main principles. They are contained in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region. These are based on Article 10 of the Universal Declaration of Human Rights and Article 14(1) of the International Convention on Civil and Political Rights.

The four main principles are: 1) Appointment of Judges - The mode of appointment of judges must be such as to ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account, so that only persons of competence, integrity and independence are appointed. In the selection of judges, there must be no discrimination against a person on the basis of race, color, gender, religion, political or other opinion, national or social origin, marital status, sexual orientation, property, birth or status. A requirement that a candidate for judicial office must be a national of the country concerned shall not be considered discriminatory; 2) Tenure - Judges must have security of tenure; 3) Jurisdiction - The judiciary must have jurisdiction over all issues of a justifiable nature and exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law; and 4) Judicial Administration - The principal responsibility for court administration, including appointment, supervision and disciplinary control of administrative personnel and support staff must vest in the judiciary, or in a body in which the judiciary is represented and has an effective role.

There is no doubt that, if the present condition of Hong Kong's judiciary is measured against the four principal criteria, and I believe members of local society would agree, the operation of Hong Kong's judiciary is absolutely independent. Elsie Leung's comments, on the other hand, do not concern appointment of judges or their tenure. Nor do they mention the jurisdiction or administration of the judiciary. How can she be accused of weakening or destroying judicial independence?

Her comments drew fire mainly because of her criticism of some past court rulings, but a careful study of her comments would show that those rulings, such as on the right of abode for children born in Hong Kong of non-local parents from the mainland, are all cases handled and closed by local courts in the past and have no effect on any of the cases currently in process in local courts.

Moreover, Leung is not the only one who has reservations about the result of certain court cases and is critical of the rulings. British Prime Minister David Cameron and US President Barack Obama were critical of certain court decisions in the past, not to mention the fact that some of the Democratic Party and Legion of Social Democrats lawmakers who have accused Leung's comments of "jeopardizing judicial independence" slammed certain court rulings before. Should we assume that those politicians' criticism of court rulings does not "jeopardize judicial independence" and only Leung's does?

Leung's detractors also claimed that she, as deputy director of the Basic Law Committee of National People's Congress Standing Committee (NPCSC), may with her comments put pressure on Hong Kong judges when they handle certain court cases in the future. However, the Basic Law Committee is only a consultative body serving the NPCSC when the latter sees fit. Therefore Leung, like other members of the basic Law Committee, does not represent any government office when she speaks in public. What's so "special" about her status anyway?

The author is a HK member of the CPPCC and a member of the LegCo.

(HK Edition 12/21/2012 page3)