Judges being patriotic does not hurt judicial independence at all－ Fourth commentary on the "One Country, Two Systems" White Paper
"Fully and Accurately Understanding and Implementing the Policy of 'One Country, Two Systems'" - this is the title of Chapter V of the White Paper on The Practice of the "One Country, Two Systems" Policy in the Hong Kong Special Administrative Region released by the Information Office of the State Council. This part presents a core content that combine the whole White Paper the most closely with the current situation in the SAR, which therefore is particularly worthy of attention.
Section 3 of Chapter V fully expounds the viewpoint that "The Hong Kong People Who Govern Hong Kong Should Above All Be Patriotic." It specifically points out: "Under the policy of 'One Country, Two Systems,' all those who administrate Hong Kong, including the chief executive, principal officials, members of the Executive Council and Legislative Council, judges of the courts at different levels and other judicial personnel, have on their shoulders the responsibility of correctly understanding and implementing the Basic Law, of safeguarding the country's sovereignty, security and development interests, and of ensuring the long-term prosperity and stability of Hong Kong."
It is also pointed out in the same section that "loving the country is the basic political requirement for Hong Kong's administrators."
It then explains that it is well grounded in laws for Hong Kong to be governed by patriots, such as that "the Basic Law requires that the chief executive, principal officials, members of the Executive Council, president and over 80 percent of the members of the Legislative Council, chief justice of the Court of Final Appeal and chief judge of the High Court shall be Chinese citizens who are permanent residents of Hong Kong with no right of abode in any foreign country; that, when assuming office, the chief executive, principal officials, members of the Executive Council and Legislative Council, judges of the courts at all levels and other members of the judiciary in the HKSAR must, in accordance with the law, swear to uphold the Basic Law and swear allegiance to the HKSAR of the PRC (People's Republic of China)..."
On this, anyone who holds no prejudice will agree that such exposition sounds reasonable and is not hard to be agreed upon. However, Hong Kong's opposition politicians have tried to distort and attack this by any means. Hong Kong Bar Association has also raised objection to the view that "The Hong Kong People Who Govern Hong Kong Should Above All Be Patriotic". The Association maintains that the Judiciary is independent, not part of the government team, stressing that judges decides cases upon hearing adversarial arguments between the parties and considering the facts and evidence placed by the parties before the Court, ignoring political requirements such as the need for governance and patriotism.
It might be understandable if the Hong Kong Bar Association issued the statement in order to reiterate the important of judicial independence. Nevertheless, when "Fully and Accurately Understanding and Implementing the Policy of 'One Country, Two Systems'" - as the title of Chapter V of the White Paper suggests - is concerned, then the Bar Association's understanding about patriots running Hong Kong and judges of the courts at different levels and other judicial personnel being among those who administrate Hong Kong could be said as biased and in an attempt to confine themselves to a self-restricted area.
As a matter of fact, when this chapter in the White Paper says the execution, judiciary and legislature are all components of the SAR's administrative structure, and the chief executive, principal officials, members of the Executive Council and Legislative Council, judges of the courts at different levels and other judicial personnel are all who administrate Hong Kong, it absolutely raises no new requirement and makes no "new invention". In the SAR, the judiciary is surely independent and judges decide cases based on evidence, which is clearly stipulated in black and white in the Basic Law. The context in the White Paper has no intention to touch or even change judicial independence. On the contrary, other parts of the White Paper - including the Forward, Chapter I. Hong Kong's Smooth Return to China and Chapter II. Establishment of the Special Administrative Region System in Hong Kong - unambiguously reiterate judicial independence in various contexts... (To be continued)
17 June 2014
