Guest Comments by Emily Lau

The writer represents Hong Kong's Democratic Party. She made the following remarks (edited here) in the Legislative Council about the appointment of a new chief justice on the Court of Final Appeal.

HONG KONG -- I support the resolution that Geoffrey Ma should be appointed as chief justice of the Court of Final Appeal to succeed Andrew Li, who steps down at the end of August.

Hong Kong has no democracy, but the people enjoy certain political freedoms. This is partly due to their vigilance in safeguarding basic rights. Another key reason is their respect for rule of law and an independent judiciary.

Because the chief executive and Legislative Council aren't democratically elected, they lack legitimacy and mandate. So the judiciary often is seen as the last fortress of a free society, upholding universal core values like personal liberty, freedom of expression and freedom of assembly.

As head of the judiciary, the chief justice plays a pivotal role to defend valuable attributes of a free society. He must have high integrity, independence and courage. Many people believe that Ma possesses these qualities and have high expectations.

Thirteen years after the change of sovereignty, Hong Kong still is regarded as a relatively free society. One big reason is the independent judiciary acting as a powerful check on excesses by the executive authorities. Any erosion of judicial independence is a matter of grave concern.
 
Many people worry because senior Beijing officials repeatedly question the notion of separation of powers. Last November, an official of the Hong Kong and Macau Affairs Office praised Macau for being constructive in co-ordinating its executive, legislative and judicial branches of government. This alarmed many people in Hong Kong and overseas.

The separation of powers refers to a tripartite system whereby the executive authorities, legislature and judiciary act to check and balance each other to prevent abuses of power and excesses. This has been the foundation of many democracies.

But the authorities in Beijing are upset that Hong Kong courts regularly overrule the executive and legislative branches by finding their actions unlawful. Some mainland officials can't accept that judges aren't controlled by the executive authorities. They even describe this as “judges ruling Hong Kong”.

There has been a marked increase in the number of judicial review cases with litigants asking the courts to examine if actions by the executive authorities or laws are lawful. Often the courts rule that the executive branch and LegCo overstepped their authority. Such rulings form an important manifestation of the doctrine of separation of powers and of the judiciary's role.

The increase in such cases directly results from Hong Kong's severe democratic deficit. Faced with such a situation, people decide to use judicial review as a mechanism to co-opt the courts to make what are effectively policy choices. If the executive and legislative branches were democratically elected, far fewer people would question their decisions this way and the courts might show less patience with such cases. In a democratic society if the people are unhappy, they can chuck the government out of office in the next election. In Hong Kong, we have no such luxury.

This explains why the courts have become a proxy mechanism to check government policies and public expenditure. The trend is unhealthy because the judiciary is asked to make what amount to political decisions. But given the constitutional conundrum, the courts may need to continue this exceptional role.