Overhauling Hong Kong’s Judiciary: The Time Is Right

As Hong Kong heads down the path of decolonization, a sector needing the most urgent attention is its judicial system. The horsehair wigs so proudly worn by judges, Justice Department officials and lawyers are the perfect symbol of the territory’s judiciary — anachronistic, neocolonial and entirely inappropriate in Asian climes.

Moreover, there is a problem of political allegiance. At a time when the US-led West is unprecedentedly hostile towards China, the Wigs’ ranks are riddled with pro-West Sinoskeptics and outright China-haters. In their judgments since the outbreak of Hong Kong’s Black Terror last year, they have blatantly favored “pro-democracy” offenders. Such bias is all too visible to open-minded onlookers.

Amazingly, all 32 of the Chinese Special Administrative Region’s most senior judges are foreign nationals, all from the 5 Eyes Anglophone nations. At the height of the Black Terror, the local High Court even declared “unconstitutional” an anti-mask law passed by the SAR government under colonial-era Emergency Regulations. The ER had been approved by the Chinese National People’s Congress, the country’s highest legal authority and symbol of sovereignty.

Even so, Hong Kong’s legal cabal continues to operate in their black box, impervious to growing public disbelief and dismay. Complaints are brushed aside with the perennial reminder about Hong Kong’s proud tradition of “judicial independence.”

Recently, the Wigs even doubled down on their self-indulgence. Obliged by public pressure, they investigated two judges accused of political bias — and predictably found them innocent. The outgoing chief justice is reportedly considering recommending his wife for a coveted place in the SAR’s supreme Court of Final Appeal (CFA).

Under Hong Kong’s neocolonial system, successive government Chief Executives have treated the Wigs like the high priesthood of some rarefied cult, whose ministrations are beyond the understanding of mere mortals. Under the new National Security Law (NSL), Beijing gave incumbent CE Carrie Lam additional powers over the judiciary — on top of her existing authority as the head of an “executive-led government.” But Lam continues to be the Wigs’ chief defender and protector, recently urging the public not to criticize their Horsehair Highnesses.

The judicial racket may be nearing a tipping point, however. As public anger builds, retired CFA judge Henry Litton recently became the top insider to question scathingly the judiciary’s self-defeating Sinophobia and lack of forward-looking vision. Litton’s criticism was commended by the People’s Daily. Beijing’s authoritative newspaper warned the Wigs not to be like “lost sheep that twist the Basic Law, and distort and even trample on HK laws.” They must “stop being defenders of street violence.” For their “own political ends,” the PD added, the Wigs were “seeking to control the narrative on Hong Kong’s political system.”

In Hong Kong itself, legislator and lawyer Junius Ho is spearheading a drive to push judiciary reform. His recommendations include:

+ Lessening dependence on judges from the 5 Eyes by appointing replacements from other common-law jurisdictions, such as Singapore and Malaysia. Their experiences in those countries should enable them to understand HK and its mores better than Western judges.

+ Train and groom more and younger Hong Kong judges to fill top posts.

+ Establish a committee to set benchmarks for punishments for specific crimes — as per Britain, Australia and other common-law jurisdictions.

+ Simplify the arcane language used in courts, so ordinary citizens could better understand what goes on in the courts. It would also boost their knowledge of civic affairs and the rule of law.

Following enactment of the National Security Law, UK Supreme Court President (and HK CFA judge) Robert Reed said that British and other foreign judges might no longer serve in the Chinese SAR, depending on how the NSL was implemented. That seems the perfect opening for Hong Kong to implement its own overdue rectification of the judiciary.

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