Hong Kong SAR’s second Chief Justice, Geoffrey Ma Tao-li, retired this month after 19 years of service in the region’s top court. He should be remembered for his:
(1) Wisdom and reasonableness
In the face of a number of recent cases that sparked a public outrage, such as those where the court, amid repeated warnings from the prosecutor, granted bail to suspects who soon jumped bail; or being sympathetic toward a young rioter who threw petrol bomb onto the police, calling him a "remarkable
kid"; or released a suspect who had the same outfit, worn similar goggles and mask, found in the same vicinity at the same time of the night as other rioters, naively believing the excuse that he was there to "witness a moment of history', Geoffrey Ma initially took a very strong, adamant and firm stance against public calls for judicial reform. He issued a formal written statement on September 23, 2020 explaining in many words why judicial reform was not needed, very much like a judge explaining a ruling in court. He concluded that the system worked and pointed out the avenues available to disgruntled public. Not long afterward, upon his retirement on Jan 5, 2021, he was wise enough to realize that these avenues (appeal and complaint) could not effectively allay public anger toward what they saw as highly questionable court rulings and the reasoning behind them in the riot-related criminal cases
highlighted above. So he said, “If there is any reform that is required, give us the details, and we will consider it.” Reasonable and open-minded, he did not now reject or dismiss reform outright. His positive attitude paved way for further discussion and debates, for subsequent analysis or diagnosis to take place and no doubt a role model to be ‘judicially’ followed.
(2) Frankness and courage
Many foreign and local critics of the central government are adamant that judges in Hong Kong, in various degree, have been under pressure not to rule against government interest. Some are suspicious that judges were “spoken to” over politically-sensitive cases. Many, lawyers even chanted in street
protests such slogans as the “rule of law is dead." Geoffrey Ma has been a judge since 2001, beginning as a High Court trial judge, then the Chief Judge of the High Court before being promoted to Chief Justice of the Court of Final Appeal. Knowing that it is difficult for those biased people to believe, he, in his press conference on Jan 5, emphatically and categorically denied any pressure from the Central People's Government or the Hong Kong SAR government.
(3) Pragmatism
The Western doctrine of “separation of powers” has been at times at the heart of debate in Hong Kong. Some judges in their decisions tended to assume that Hong Kong had “separation of powers”, but the central
government apparently does not agree. There has been ongoing dispute over whether the doctrine exists in Hong Kong law. In reality, although many common law jurisdictions have embraced the concept of “separation of powers”, practically it does not exist. When a political party receives enough votes to form government, both the legislature and the executive are filled by people of the same winning party and therefore there is no separation of powers between the legislature and the executive. The only thing that remains unchanged in a rotating government is an independent judiciary. Instead of indulging in endless theoretical argument about separation of powers, Geoffrey Ma’s enlightening emphasis to the press was that Hong Kong nonetheless maintains an independent judiciary.
Moreover, Ma is not flawless. The National Security Law for implementation in Hong Kong is drafted in the Chinese language and has an English version. Ma appears having difficulty grappling the legislative intent and philosophy of this Law. When the NPCSC passed the decision to enact the National Security Law in the HKSAR, it stated emphatically that the law aims to “prevent, suppress and punish” infringements on national security. These three intentions are stated in Article 5 of the law. True to the legislative intent to prevent, Article 42 of the law reversed the general right to bail by express words -- denying bail being the general rule and granting bail an exception. Geoffrey Ma, by saying in his statement that “Article 42 was only one qualification to the presumption of the granting of bail”, overlooked the background, the perspective
and the legislative intent of the National Security Law. The correct understanding of Article 42 is that it is not only a qualification to the existing general principle of bail, but an overhaul that reverses this existing general principle.
When Andrew Li was the Chief Justice, much emphasis was placed on individual rights. No doubt Hong Kong is a capitalist city but nonetheless a city within a socialist country and the right to interpret the Basic Law rests with the country’s NPCSC; and an overemphasis on individual rights is at odd with public interest. During his term as Chief Justice, Ma spoked of departing from the individual right emphasis to a more balanced collective community right approach (see his 2017 Opening of the Legal Year speech). But
we have yet to see this approach being judicially established and having become actual applicable legal principles.
All in all, I believe that history will remember the valuable contributions Ma made to the rule of law in Hong Kong.
Lawrence Ma
Barrister and Chairman, Hong Kong Legal Exchange Foundation
21 January 2021
原圖：https://www.hkcfa.hk/en/visiting/cfa_building/CFAB_PhotoGallery/index_id_15.html
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