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[01 Weekly Editorial] Judicature must have reform spirit to get rid of political mud


The image of the court is solemn and sacred. The judges are regarded as superior, or people think that the judicial institution operates in a vacuum, forgetting that it actually exists in a troubled society. The British Parliament appeals to the courts due to Brexit


Written by: Hong Kong 01

2020-09-28 06:00

Last update date: 2020-09-28 06:00

The image of the court is solemn and sacred. The judges are regarded as superior, or people think that the judicial institution operates in a vacuum, forgetting that it actually exists in a troubled society.

The British parliament has resorted to courts to resolve disputes because of Brexit; the death of the United States justice and how to fill it turned out to be an electoral issue, all of which prove that the courts are not inhumane.

In Hong Kong in the "post-amendment" era, the judiciary was also accidentally dragged into the quagmire.

Chief Justice Ma Daoli of the Court of Final Appeal issued a statement last Wednesday (September 23) to defend the court, but it failed to alleviate the society's worries about judicial impartiality in recent years.

He should uphold the spirit of reform to ensure that the judicial system can get rid of political entanglements and adhere to judicial procedures based on legal rulings.

Although Ma Daoli’s statement was not explicitly stated, the judge, who has often hidden himself in public discussion, decided to break his silence, apparently because the anti-regulation movement related cases have repeatedly caused controversy.

What's more, the current society does not only disagree on one or two cases, but under the blue and yellow tears, both camps have strongly criticized the anti-amendment-related cases, fundamentally question the neutrality of the court, and believe that judges There are also blue and yellow differences.

If you don’t face this credibility crisis, and only repeatedly emphasize that the judge is selfless, you will only become ostrichism.

The goddess of justice wears blindfolds, but those who do not blindfold themselves are all goddesses of justice.

In April of this year, a judge described the defendant who beheaded during the anti-regulation campaign as "noble," and therefore regarded as "Judge Lansi."

Two months later, a magistrate advised the members of the constituency who disturbed the Legislative Council to "keep a useful body", "the future must be a pillar of society," and was labeled "Judge Huang Si."

The two were later arranged not to hear cases involving similar political backgrounds.

It is a very unprofessional practice for judicial officers to excessively mix their political positions in judicial work, and it is also an insult to Hong Kong's judicial impartiality.

Judges should not express their political sentiments in their rulings. The rulings must be based on the law, not personal political convictions.

Perhaps some judicial officials think that the anti-amendment riots are highly controversial political incidents, and there may be improprieties in the police's enforcement actions, but even so, the judges can only act on the merits of the case and the law and cannot be mixed with other considerations.

Arranging the relevant judges not to hear cases related to the anti-amendment turmoil is obviously not enough to restore the already damaged judicial credibility.

Members of the DAB Legislative Council Zhou Haoding and Ge Peifan suggested the establishment of a sentencing committee, composed of legal and non-legal circles, to avoid repeated penalties in criminal cases.

Excessive sentencing is not enough. Excessive lenient will certainly undermine the prestige of the judicial system, but too strict will actually not help the manifestation of justice.

However, there are many doubts about the establishment of a sentencing committee.

Legislative Council Member Kwok Wing Keng pointed out that sentencing is an important task of the judiciary and cannot be outsourced, nor can it be directed by other people.

Ma Daoli also indirectly reiterated in his statement, "Sentencing is a judicial function, which is exercised independently by the court and is also a court exclusive function."

Take the United Kingdom, which is cited by more people, for example. Its Sentencing Committee has formulated guidelines to give the court the scope of sentencing for criminal offences. It also allows judges to make decisions outside the scope of the special circumstances of the case. It cannot be said that it deprives the court of its sentencing function in nature. .

It is of course possible to agree or disagree with the proposal of the establishment. It is also unknown whether the sentencing committee is sufficient to consolidate society’s confidence in justice.

However, if you fail to discuss the matter, you will completely deny it. Will it reflect the lack of thinking about change and the lack of a desire to keep improving?

In fact, the reform will not detract from the dignity of the courts, let alone hurt the authority of the courts. On the contrary, it reflects the emphasis on judicial quality.

The sanctification of courts is not in line with reality and will hinder judicial progress.

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The ban on masks and the National Security Law Central does not believe in Hong Kong courts?

One of the strongest voices advocating judicial reform is Lie Xianlun.

The former permanent judge of the Court of Final Appeal has frequently commented on Hong Kong judicial issues in recent years, including in January this year that the High Court’s ruling on the “Prohibition of Face Masking” was described as “catastrophic,” and that the police were unable to perform their duties under completely abnormal social conditions. ; In June, he also publicly supported the "Hong Kong National Security Act", pointing out that there is more and more evidence that Hong Kong has terrorist activities aimed at overthrowing the SAR government and posing a threat to national security.

Lie Xianlun wrote an article in a newspaper on the subject of "It's Time for Urgent Reform" in early September, and it is not surprising that he said again.

He took the "Prohibition of Face Masking Act" case as an example and pointed out that the court misunderstood "one country, two systems" and Hong Kong's constitutional order in judicial review, and "elevated itself to the position of the National People's Congress."

Lie Xianlun also pointed out that Article 44 of the "Hong Kong National Security Law" stipulates that judges handling national security cases should be selected by the Chief Executive instead of being dispatched by the Chief Justice. This shows that Hong Kong courts have lost the trust of Beijing.

Regarding the power of the Chief Executive to invoke the Emergency Law under the Hong Kong constitutional order, the interpretation of the Court of Appeal of the High Court is different from that of the Court of First Instance. The final appeal hearing will be heard by the Court of Final Appeal in November.

However, it is an indisputable fact that there are more and more judicial reviews in Hong Kong.

Judicial review is an important tool for checks and balances of power and good governance. But at the same time, as Lie Xianlun pointed out, "the power of final interpretation of the Basic Law is not in the hands of Hong Kong courts, but in the hands of Beijing." Therefore, when a case involves a violation of the Basic Law For important understandings, such as the relationship between the central government and Hong Kong, political system, etc., the courts of the SAR should act cautiously, or even walk on thin ice.

Although the judiciary is responsible for supervising the executive and legislative organs, if they act in accordance with the law, the courts should respect them instead of interfering in their own will.

"The greater the ability, the greater the responsibility." The impact of court rulings can be large or small, and deviant rulings can generally only be corrected by appeals. Judges inherently need to be extremely careful.

If the court gives people a sense of prejudice in anti-amendment cases, or makes an overly subjective interpretation of Hong Kong's constitutional order in judicial review, the price is the credibility of the judicial system, the cornerstone of Hong Kong's success.

After Hong Kong has experienced social turmoil, the judicial system especially needs to play the role of Dinghai Shenzhen, but this role must be based on social trust.

If due to the bias of some judicial personnel, society's trust in the judicial system is damaged, Hong Kong cannot afford this price.

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Real independence can only be achieved by emphasizing both ability and responsibility

The judiciary is definitely not a royalist, but it is also not an opposition party.

Once justice is brought into political disputes, the example of the United States shows that the consequences are a deep abyss.

The death of U.S. Supreme Court Justice Ruth Bader Ginsburg caused a dispute between the Democratic and Republican parties over the right to appoint. The reason is that the judiciary has been severely politicized.

Many people describe Ginsberg as a progressive among the progressives and firmly support personal rights and gay rights in judicial reviews. But in fact, she was nominated by then President Clinton in 1993 and worked at New York University Law School a year before. In a speech, he criticized the "Roe v. Wade" (Roe v. Wade), which was regarded as a gem by the liberals, and argued that the Supreme Court should only rule that the Texas abortion criminal law is unconstitutional, rather than make further comprehensive and principled abortion issues. Decided.

Those are not the job of the courts, and they have continued to tear American society because of the abortion problem.

The US constitutional amendment requires the support of two-thirds of the two houses of Congress and the consent of three-quarters of the state legislatures, which is actually difficult to achieve. Therefore, the Supreme Court’s rulings are often final unless they are overturned in future cases.

In addition, the justices of the Supreme Court are appointed for life, so seats have become a battleground for military strategists. The two parties tried to indirectly influence the future direction of the Supreme Court and even the country by appointing judges with a track record closer to their ideology.

The Democratic and Republican parties, which are keen on political struggles, obviously do not intend to solve the problem fundamentally, and allow the Supreme Court to act like a Senate.

Judges who have been in office for two to thirty years have overridden society with abstract principles and enjoy the supreme status and power. It is forgotten that justice is to serve the development and operation of society, and to promote legal practice in response to the pursuit of social values. Judicial independence should not be Refers to independence from society.

Although Lie Hsien-lun, who called on the courts to "emergency reforms," ​​did not put forward specific reform proposals, he clearly pointed out that the judiciary "needs to completely change the established thinking and think more boldly." It can be seen that the heavy responsibility of consolidating the credibility of the judicial system always lies The SAR court itself.

The Chief Justice of the Court of Final Appeal, Ma Daoli, and Zhang Juneng, who will succeed him early next year, must use a reform attitude to actively improve the current situation of judicial and political entanglement, so that judicial independence can be truly demonstrated, rather than even the judiciary is brought into dirty by political correctness. ditch.

Please pay attention to the 233th "Hong Kong 01" Weekly News published on September 28, which is available at major newsstands, OK convenience stores and Vango convenience stores.

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Judicial Review Judiciary One Country, Two Systems Court of Final Appeal 01 Weekly Editorial

Source: hk1

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