Hong Kong must leave judges out of the protest politics and safeguard the independence of its judiciary

South China Morning Post 發布於 2019年09月17日04:09 • Cliff Buddle
  • As more arrests are made amid the continuing unrest and criticism of judges’ decisions begin to roll in, Hong Kong must be reminded of the need to respect the judicial process
  • A repeat of the pressure that judges have had to bear working through the Occupy cases would undermine confidence in the courts
Illustration: Craig Stephens

Hong Kong's embattled judiciary could be forgiven for heaving a sigh of relief when the trial of the Occupy protest leaders reached its conclusion earlier this year. That was the last in a long line of cases arising from the civil disobedience movement which saw streets in Hong Kong occupied for 79 days in 2014.

The Occupy protests led to more than 1,000 arrests. For five years the courts sought to do justice in politically sensitive cases at a time of deep divisions and high emotions in the city. Judges and magistrates came in for fierce criticism from one side or the other for being either too lenient or too harsh. Some received threats as critics unhappy with this or that judgment called into question the judiciary's independence.

This extraordinary period for the courts seemed near an end when the Occupy leaders were sentenced in April, with four of them jailed. But only a few weeks later, the anti-extradition bill demonstrations began. Now, the judiciary is facing an even bigger challenge.

The Occupy protests pale in comparison with the ongoing anti-government demonstrations. For 15 weeks, Hong Kong has seen mass protests, many leading to violent clashes. Petrol bombs have been hurled, barricades set alight, MTR stations vandalised, and police stations besieged. Police officers have, at times, appeared to use excessive force in breach of the law. And violence flared between pro- and anti-government groups last weekend.

More than 1,300 arrests have been made and the first cases are appearing before the courts. At such a sensitive time, the judiciary's role in impartially applying the law must be understood and respected. Support from the government and public confidence in the process are imperative.

Already, however, the courts are coming under attack. Last week a pro-government group organised a protest outside the Court of Final Appeal attended by around 100 people. They criticised the judiciary for releasing anti-government protesters on bail and imposing what they consider to be lenient sentences.

There were calls for Chief Justice Geoffrey Ma Tao-li to step down. Similarly, anti-government protesters have used social media to target members of the judiciary who have denied bail to their fellow followers. Dispensing justice is not a team game. The courts are restrained by the requirement that they apply established legal principles.

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Whether a defendant is released on bail pending trial depends on whether the court believes it is likely that person will abscond, commit further offences or interfere with witnesses. If not, bail should be granted.

Hong Kong's institutions have taken a battering as a result of the ill-fated bid to pass a law which would have allowed people to be sent for trial in mainland China. The government, which has accepted responsibility for the crisis, has little credibility left despite its belated pledge to withdraw the bill.

The police, thrust onto the front line, are seen by anti-government protesters as the enemy, rather than guardians of the peace. The Legislative Council, which had been expected to pass the bill despite strong public concerns, also has much work to do if it is to restore its reputation, especially in the eyes of the young.

With these core institutions weakened, much depends on the judiciary.

The call by Yang Guang, spokesman for the Hong Kong and Macau Affairs Office, for all Hong Kong institutions with public authority, including the judiciary, to prioritise the curbing of turmoil and violence will only put more pressure on the courts. It risks creating a public perception that the judges are there to do the government's bidding and it could undermine confidence in the independence of the judiciary.

It is not the job of the judges to curb turmoil and violence. Their task is to apply the law freely and fairly. This inevitably means some suspects will be acquitted because the case against them is not strong enough. Others may receive non-custodial sentences in accordance with established sentencing guidelines. Some, no doubt, will be given heavy sentences. This was precisely what happened when the courts considered the Occupy cases in recent years.

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Deterrence is one element of sentencing. The courts have, in the wake of the Occupy movement, introduced new sentencing guidelines providing tougher penalties for violent protests. They only apply to offences committed after the new guidelines were imposed in August 2017. There will also be mitigating factors for the courts to consider, including the age and circumstances of defendants.

The judicial process has continued to take its course during the protests without any sign of bias. Occupy leader Benny Tai Yiu-ting was released from his jail term on bail last month pending an appeal. A ban on pro-democracy activist Agnes Chow Ting standing for election to the Legislative Council was overturned by a court early this month. Meanwhile, in June, the Court of Final Appeal ruled against the government in a landmark case concerning LGBT rights.

Pro-democracy activists Agnes Chow and Joshua Wong were arrested on August 30, in a crackdown on anti-government protests. On September 2, the High Court overturned an election ban on Chow. Photo: Bloomberg

Five police officers jailed for beating a suspect during the Occupy demonstrations saw their convictions upheld, while two others were acquitted. The courts have also recently issued injunctions intended to prevent anti-government protesters disrupting operations at the airport and on the MTR.

The chief justice has, in recent years, used his annual speech at the opening of a legal year to call for the judicial process to be respected and for critics of court judgments to at least try to understand how and why the judge concerned arrived at the decision. Judgments are open to criticism. But the politically neutral role of the judiciary means it cannot fight back when under attack. Critics should refrain from launching ill-informed and politically-motivated attacks.

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One of the five demands made by protesters is for an amnesty for those involved in the demonstrations. This raises a number of legal issues which would not be easy to overcome. One practical benefit of such a move, though, would be to spare the courts the burden of so many politically sensitive cases.

Hong Kong's rule of law depends on the work of an independent judiciary enjoying a high level of public confidence. This will be under threat if attempts are made to drag the courts into political battles. The government, police and demonstrators on both sides must respect the judicial process. As Hong Kong faces more dissent, division and disorder, the judiciary is one institution that must emerge unscathed.

Cliff Buddle is the Post's editor of special projects

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