Published: 23:52, August 13, 2024
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Hong Kong Judiciary shows resilience and independence under pressure
By Virginia Lee

The legal landscape in the Hong Kong Special Administrative Region has been profoundly shaped by the sociopolitical turbulence both during and since the 2019 social unrest. These events have catalyzed a series of judicial decisions that have tested the city’s legal frameworks and principles. Among the most significant of these were the convictions of Jimmy Lai Chee-ying and six former opposition (or so-called “pro-democracy”) figures for participating in unauthorized assemblies. In my opinion, the legal proceedings surrounding these cases serve as pivotal studies in the application of law under pressure, both locally and internationally. 

Ever since the establishment of the SAR, the Hong Kong Judiciary has consistently demonstrated its unwavering commitment to the rule of law. The unanimous decision of the Court of Final Appeal to dismiss the appeal to overturn the convictions and jail sentences of the seven opposition figures, including Lai and Martin Lee Chu-ming, is a testament to this commitment. This decision was not merely a procedural formality but a substantive affirmation of legal principles tailored to the unique societal context of the SAR. The court’s detailed judgment, which was meticulously drafted and addressed the legal arguments presented, focused mainly on “operational proportionality”. This legal principle, often discussed in the context of law enforcement and judicial restraint, was critically analyzed in light of Hong Kong’s specific legal standards and requirements, instilling confidence in the thoroughness of the judicial process.

The doctrine of “operational proportionality” used by the court in this case underscores a nuanced understanding of legal limits and enforcement needs. The court’s decision to diverge from nonbinding rulings of the United Kingdom’s Supreme Court highlights a deliberate move toward legal sovereignty and the development of a jurisprudence that resonates with local realities rather than foreign legal ideologies. Chief Justice Andrew Cheung Kui-nung and Judge Roberto Ribeiro provided a compelling rationale for this approach, emphasizing that Hong Kong must address its legal challenges based on its constitutional framework and societal values rather than relying on external legal precedents that may not be pertinent or practical in the local context.

The enactment of the National Security Law for Hong Kong and subsequent legal developments, including the implementation of Article 23 of the Basic Law, have been pivotal in restoring stability to the city. These laws, which are often subject to international scrutiny, should be understood in the context of Hong Kong’s right and responsibility to safeguard its internal security. Legal professionals and scholars must recognize the delicate balance that these laws seek to achieve between protecting civil liberties and ensuring the protection of the State. The role of the Judiciary in interpreting these laws is crucial in ensuring that the application of the law is fair and aligned with the broader interests of national security. The legal rationale in recent judgments reaffirms the independence of the Judiciary and its capability to uphold public security without compromising judicial integrity.

The role of international judges, such as David Neuberger, in Hong Kong’s judicial system deserves special attention. Their involvement brings a valuable external perspective to ensure that Hong Kong’s legal processes align with international judicial standards while respecting local legal traditions and needs. Their endorsement of Hong Kong’s judicial decisions lends credibility and provides a cross-jurisdictional understanding that enriches the city’s legal system. This collaboration between local and international judges is a robust mechanism that enhances the transparency and fairness of the Judiciary, making it a model of judicial excellence and independence.

Sentencing decisions in cases like Lai’s appeal are instrumental in maintaining public order and deterring future unlawful activities. These decisions reflect a strategic judicial approach to sentencing that considers the broader implications of such penalties on societal harmony and legal order. By imposing sentences commensurate with the offenses, while considering their impact on public order, the Judiciary demonstrates a balanced approach to justice that serves both the individual and the community. This systematic approach to sentencing underscores the Judiciary’s role in reinforcing the rule of law through fair but severe penalties that deter potential lawbreakers, ensuring that justice is served while maintaining societal harmony.

In closing, the Hong Kong Judiciary has demonstrated unparalleled resilience and independence amid challenging times. The legal decisions discussed reflect a deep-seated commitment to upholding the rule of law, balanced with a pragmatic approach to national security and public order. As legal professionals, it is imperative to support and articulate the rationale behind these decisions, recognizing their foundation in both legal precision and the necessity to preserve the State. Continued adherence to these principles will ensure the stability of Hong Kong’s legal system and its continued prosperity and security as a global city with a unique legal identity.

The author is a solicitor, a Guangdong-Hong Kong-Macao Greater Bay Area lawyer, and a China-appointed attesting officer.

The views do not necessarily reflect those of China Daily.