How the national security law strikes at the heart of Hong Kong’s judicial independence

Official assurances of judicial independence ring hollow when the chief executive and justice secretary have overlapping and conflicting roles in the designation of a pool of judges and prosecution of national security cases

Michael Blanchflower

Published: 6:30am, 5 Jul 2020

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Judicial independence has been a cornerstone of the Hong Kong Special Administrative Region’s legal system and is guaranteed by Article 85 of the Basic Law, which states: “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.” The new national security law reneges on that guarantee.

It provides that, along with the executive and the legislature, the “judiciary of the Region shall effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this law and other relevant laws” (Article 3).

This command is reconfirmed where, to safeguard national security effectively, Hong Kong’s judicial authorities “shall fully enforce” the national security law and the city’s laws for acts endangering national security (Article 8). The national security law’s orders to the judiciary could not be clearer.

The law requires Hong Kong to establish a Committee for Safeguarding National Security chaired by the chief executive. This committee will have an adviser appointed by the central government and be under the supervision of, and accountable to, the central government.

For national security law cases, the chief executive will designate judges at all court levels – from magistrates to justices of the Court of Final Appeal. Before making such designations, the chief executive may consult the committee and the chief justice of the Court of Final Appeal. But the chief executive does not have to consult anybody, or he or she may just consult the committee.

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Unlike the chief executive’s appointment of judges to courts based on their judicial and professional qualities, and in accordance with a transparent, legal procedure, the chief executive’s criteria for designating judges is opaque.

Zhang Yong, vice-chairman of the Legislative Affairs Commission of the National People’s Congress Standing Committee, spoke about judicial independence: “Judicial independence means that judges are free from any interference in the trial of cases and exercise judicial power.”

His definition is thin and incomplete. Judicial independence is broader than non-interference with the judge during the trial; it includes the institutional independence of the judiciary’s relationships to the executive and legislative branches of government.

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The judiciary must also be perceived as being independent and impartial. Like justice, judicial independence requires the judiciary to not only be independent, it must be seen to be independent. Judicial independence under the national security law fails on both fronts.

Chief Executive Carrie Lam Cheng Yuet-ngor has said she would not select a particular judge to hear a national security law case. This ignores the reality of what will happen: the chief executive will designate a pool of judges who, in the chief executive’s opinion, are the right judges to hear such cases. Any judge from the pool will suffice.

The term of office of a designated judge is one year so there is no security of tenure of designation. With the mainland conviction rate close to 100 per cent, a designated judge’s performance will be under scrutiny by the chief executive and the committee; judges will be under pressure to “effectively prevent, suppress and impose punishment for any act endangering national security”.

If their performance is not satisfactory in the eyes of the chief executive and the committee, then the chief executive will remove them from the designation list. Removal may be based on whether the judge “makes any statement or behaves in any manner endangering national security during the term of office” (Article 44).

This might conceivably include the acquittal of a defendant, in the case where the chief executive and the committee sees an acquitted defendant as a continuing danger to national security.

The chief executive’s involvement in national security cases goes beyond the power to select the pool of judges to try national security offences, to include the prosecution of those offences. The prosecutor of national security offences is the Hong Kong government, of which the chief executive is head.

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The secretary for justice is a member of the Committee for Safeguarding National Security which the chief executive may consult about which judges to designate for national security cases. The justice chief is head of the department responsible for prosecuting offences.

The overlapping and conflicting roles of the chief executive and secretary for justice could not be plainer, and ignores the cardinal principle of which the High Court of Australia reminds us: “Judges do not choose their cases; and litigants do not choose their judges.”

Assurances made by officials that the national security law does not affect judicial independence ring hollow. Judicial independence must exist in all parts of the legal system, not just in some.

Michael Blanchflower SC is a former assistant solicitor general of Hong Kong (1991-1993) who specialises in criminal law and human rights law

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