By Jerome A. Cohen
The annual opening ceremony for the year’s litigation in Hong Kong was held Monday, January 13. It revealed important tensions involving some basic issues relating to criminal justice for protesters. Chief Justice Geoffrey Ma felt obliged to defend the courts against charges of being too slow in handling the unusually large number of cases being brought against protesters, and he lectured the public to understand that it cannot judge the quality of justice on the basis of the results reached by the courts for or against people they favor. He emphasized the importance of defending judicial independence and conducting fair trials, even if they did not always appear to be speedy. I wish he had been more critical of the slowness of decisions to grant bail.
Most interesting are issues identified by Hong Kong barristers (trial lawyers). In one case, on behalf of a 22-year-old photographer, it is being argued that magistrates courts have been granting the authorities search warrants that are broader in scope than the local constitution permits.
Even more challenging is the issue raised by Philip Dykes, chairman of the Hong Kong Bar Association, who argued in his speech at today’s ceremony that the Secretary for Justice, in deciding whether to bring a prosecution, must take into account not only whether the government evidence of commission of a crime is technically sufficient to justify conviction but also whether prosecution and conviction would meet “the public interest”.
This raises the question, necessarily confronted by every legal system, of the scope of the prosecutor’s discretion and the factors that the system permits to be taken into account in the exercise of prosecutorial discretion. Without taking into account these factors, Dykes maintains there can be no “rule of law”. Others, obviously favoring more prosecutions of violent protesters rather than fewer, are resisting by claiming that the “rule of law” requires a more mechanical application of the standards for prosecution.
The speeches made yesterday and the government, lawyers, media and other responses they are evoking deserve careful analysis. Some legal observers believe that, while Hong Kong’s judges continue to be independent, some judges themselves, for whatever reasons, may take too mechanical a view in their decisions, failing to take account of “the public interest”. Even more observers believe that the Secretary for Justice, a faithful instrument of the Hong Kong Government, certainly applies the legal standards for prosecution too mechanically, at least excluding from her consideration those factors that could lead to a decision not to prosecute accused protesters.
The great question is what are the political, economic, social, cultural and other factors, if any, that should be taken into account in the prosecutor’s decision whether or not to take a case to court if there is sufficient evidence for conviction. “The rule of law” is not self-defining.