Hong Kong's Judicial Independence: An Honest Power Review
What is judicial independence?
The term 'judicial independence' has always come across as a prestige for any government to hold, serving as the utmost praise to a jurisdiction's judicial legitimacy. The bar for a jurisdiction to be recognised as independent is, unsurprisingly and necessarily, high. Contrary to most misbeliefs, judicial independence is not about arming the courts with authority. In a democracy, that would be reserved for the legislature (i.e. the parliament) and not any judicial body. This is a matter of how judges are not elected by the electorate, hence depriving them of political authority. What judicial independence suggests is the need for a judicial body to be free from executive and legislative influence. Not only do they have to remain impartial, but also in a way to uphold the rule of law without succumbing to political pressures. However, what happens when an executive or legislative authority challenges the judiciary with an overarching power? Sounds abstract. Let me give you an example
Hong Kong: A Case Study
Hong Kong is a Special Administrative Region (SAR) under China's rule, meaning it is autonomous with a legal framework independent from China. While China runs its legal system based on civil and customary law, Hong Kong is in a special place to succeed the common law system that it was introduced to during the British colonization. Hence, Hong Kong's judiciary is designed to be independent. This is guaranteed under Hong Kong's constitutive Basic Law, a constitution with ultimate legal authority over how its legal system should operate.
A dilemma arose when the National Security Law (NSL) was imposed in 2020. It was a response to the 2019 dissents in Hong Kong, resulting in treacherous political polarization. The NSL was implemented directly under Beijing's authority, overriding legislative consent and hence undermining Hong Kong's parliamentary sovereignty. Whether it is undemocratic is besides my point. What I'm saying here is that the law itself has posed threats towards Hong Kong's judicial independence, seen in a notorious criminal case about Jimmy Lai.
Jimmy Lai was not the first to be prosecuted under the NSL, but he was one of those prosecuted, facing the most serious punishments. Upon a thorough review of Lai's legal files and verdict, I was able to conclude that he was criminally convicted under alleged attempts to 'collude with foreign forces' and 'conspire' a threat to Hong Kong's national security. Surely this man has done some despicable work? Well, what he actually did was publish newspapers featuring articles that scrutinized the government. He was trialed for his journalistic work, and it proceeded despite great public opposition. While the Department of Justice (DOJ) does have the right to prosecute anyone that breaches the law, there were grey areas in Lai's case. Here is when the line on judicial independence begins to blur.
First, the criminal trial is deprived of a jury, despite the trial being a serious criminal offense. This meant that decisions made in any of Lai's trials are made without a jury's consent, which undermines the fundamentals of a criminal trial.
However, this is not an isolated incident. Several jurisdictions (including the UK) have deprivileged juries in a criminal trial under the notion of upholding national security. Like A v. Secretary of State for the Home Department, the involvement of presenting privileged intelligence as evidence in the terrorism-natured case meant that the public was not granted access to the hearing. This bears the question of whether Hong Kong's judicial independence is truly under threat. Well, I'm not done yet.
The absence of a jury wasn't the only concern in Lai's trial. Under Beijing's authority, the chief executive of Hong Kong (equivalent to the prime minister) John Lee made the controversial decision to prohibit foreign lawyers from representing Lai in the trial. It overruled the court's decision to permit foreign lawyers in his case. This meant that Lai had to resort to local lawyers instead of his preferred lawyer, Tim Owen (KC). From the perspective of legal principles, Lee's executive involvement in revoking the court's decision is already a detrimental subversion of judicial independence.
On top of that, the decision undermines Hong Kong's Basic Law, in which Article 35 grants Hong Kong residents the "...choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts..." The irony of Article 35 being compromised on the 35th year since the Basic Law's promulgation serves as a symbol of the region's democratic deterioration, and concerns have not been silent. While this isn't the main point of my argument, I would still like to reveal the complete scope of Hong Kong's legal landscape, which I deem complementary to judicial independence.
It is arguable that there are worse threats to judicial independence around the world. However, the trial of Lai remains distinctive not only because the threat occurred in a region that was once known for its legal impartiality but also because of how it was showcased in a deliberately conspicuous manner. It potentially suggests that the rule of law will begin to weaken in the region, but I would not dare to settle with any presumptions. Hong Kong's judicial independence still exists in most cases, but whether Lai's case would perpetuate a domino chain for its downfall is still something only time will tell.
Lord Sumption and the Challenges of Democracy
It wouldn't be appropriate for me to conclude this article without thanking Lord Sumption for his thought-provoking book on democracy and law. Once a former judge of both the UK and Hong Kong's Supreme Court, Sumption published a book based on his seasoned experience as a respected judicial officer. His book is an ode to democratic threats in western democracies, in which he mentions Hong Kong as a case study. It elaborates on the reason why he gave up his position as Hong Kong's Supreme Court judge and offers invaluable insight to his take on Hong Kong's decline of judicial independence.
The Challenges of Democracy (and the Rule of Law)
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