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Hong Kong's new Chief Justice has vowed to uphold the city's judicial independence. Can he?

January 13, 2021. Summarized by summa-bot.

Compression ratio: 21.8%. 2 min read.

Hong Kong's courts are the one branch of government which retain some degree of autonomy, but one which may be sorely tested by the blunt instrument of Beijing's new security law.

Close attention will be paid to how the courts apply the sweeping and so far largely untested law, which was directly imposed by Beijing, bypassing Hong Kong's semi-democratic legislature, and contains clauses which may conflict with existing constitutional and treaty protections for speech and assembly.

Throughout its century-and-a-half as a British colony, the rule of law -- equality before the courts, due process, and the presumption of innocence -- came to be seen as the city's "defining ideology," one that helped Hong Kong become a global financial capital, a safe harbor for businesses to choose as their Asian headquarters confident that their rights would be protected, in contrast to the often arbitrary exercise of justice elsewhere in the region.

When Hong Kong was handed over to the People's Republic of China in 1997, the city's new rulers, keen not to disrupt their economic dynamo, were careful to pay lip service to the importance of the rule of law and independent judiciary to Hong Kong's continued success under the principle known as "one country, two systems. "

Yet while the protests were successful in defeating the proposed legislation, they also prompted the eventual imposition of the national security law last year, creating a number of political crimes and undermining protections contained within Basic Law, Hong Kong's de facto constitution, while also creating the possibility for defendants to be transferred to China for trial in some circumstances.

Writing in the state-run China Daily late last year, one commentator said that "in theory, judges must not take political sides in a court of law, but in Hong Kong many members of the public now see some judges as 'yellow judges' who practice political favoritism for offenders from the opposition camp. "

But what exactly the law means may be a moving target as Beijing takes a more hands-on approach to Hong Kong's legal system.

Under the Basic Law, while Hong Kong has a "Court of Final Appeal," the true arbiter of the city's constitution is China's National People's Congress, the country's rubber-stamp parliament, which can issue "interpretations" of various articles of the Basic Law -- essentially rewriting it on the fly.

Observers have expressed concern that, should Hong Kong courts apply the national security law more leniently than Beijing would want, the national government may step in to force them to do otherwise.

"The efforts to protect Hong Kong's judicial independence is now a rearguard operation, and the determination of the Chief Justice to stand fast or not will only determine the pace of this process," Tsang said.

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