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Criticism of judges is infectious and irritating

Hong Kong, 23 September 2020: As we continue to fight a major public health battle, there are individuals in Hong Kong who require isolating, though in a conceptual rather than a physical sense. Forget Covid-19 for a moment, I’m talking about people from across the political spectrum who think it is acceptable, indeed justifiable, to make unwarranted attacks on the independence of our Judiciary.

I raised this topic a couple of weeks ago amid an ongoing – though, in my view, largely irrelevant – debate about “separation of powers”, referring to the operations of the executive, legislative and judicial branches of government. I said then that rather than bandying around such an unhelpful slogan, we should focus on defending our judicial system since it is fundamental to the rule of law.

In recent months, as cases resulting from last year’s civil unrest have come before the courts, judges and magistrates have been in the firing line. Some have been accused by pro-government supporters of being too lenient on protesters. Opponents, on the other hand, have weighed in when they think sentences have been too harsh. It has become tiresome.

Therefore, I wholeheartedly welcome yesterday’s statement by the Law Society of Hong Kong which unequivocally condemns any attempts to undermine “respect for judicial integrity and independence” and stresses the role of the courts is to adjudicate impartially on legal and factual issues. “Any unfair and unfounded attacks solely according to political views cannot be tolerated,” says the Law Society. “Further, nothing should be said or done that will undermine, or will be perceived to undermine, judicial independence and the rule of law in the Hong Kong Special Administrative Region, both of which are fundamental to the HKSAR’s common law legal system.”

On a related note, there has been considerable debate regarding the resignation of Mr Justice James Spigelman from his position as Non-Permanent Judge of the Court of Final Appeal. The Australian had two years left to serve. No reason was given in his resignation letter, although he was reported to have told the Australian Broadcasting Corporation, which he previously chaired, that he had stood down for reasons “related to the content of the national security legislation”, but there was no elaboration.

It appears most likely that the resignation is a one-off, as none of the 13 remaining foreign judges has indicated a wish to step down. Indeed, Mr Spigelman’s compatriot Robert French, a Non-Permanent Judge since 2017, has reiterated his commitment to serving. It was also good to hear our Chief Executive Carrie Lam stress that “under the Basic Law, we welcome judges from other common law jurisdictions to sit on the Court of Final Appeal”.

These legal matters deflected attention, albeit temporarily, from our coronavirus concerns. Like many, I’m delighted to see public football pitches and basketball courts reopened and many teams have resumed training, meaning I can look forward to refereeing a football match again soon. The so-called third wave of infections continues to dwindle, with eight new infections – five of them imported – confirmed yesterday, taking our city’s total to 5,046 cases and 103 related deaths. We are told to expect just three new cases today. Existing social distancing regulations, which include a maximum of four people gathering in public or eating together in a restaurant, will continue until at least 1 October.

While we may grumble about being inconvenienced in Hong Kong, there are few better places in the world to be waiting out the pandemic. This was brought home to me in a video conference call yesterday with my Asia Pacific colleagues in Ally Law when I was one of the few logging in from work. Nearly everyone else was at home, either because their city is locked down or their office closed.

Someone definitely not at home, I’m delighted to say, is my six-year-old grandson Nathan, who has finally returned to class amid the general resumption of Hong Kong schools today. His excited smile as he departed on the school bus will have been replicated in hundreds of thousands of young faces across the territory. The feeling among parents and helpers, I imagine, is more one of relief.

Stay safe and well, everybody!

Colin Cohen
Senior Partner
Boase Cohen & Collins