Beijing treasures HK’s judicial independence more than anyone else
Edward Liu says the central government has never interfered with having judges from other jurisdictions
The recent resignations of Lord Robert Reed and Lord Patrick Hodge, the president and deputy president respectively of the Supreme Court of the United Kingdom, as overseas nonpermanent judges of Hong Kong’s Court of Final Appeal (CFA) have aroused considerable local and international attention.
Both Liz Truss, the British secretary of state for foreign, Commonwealth and development affairs, and Dominic Raab, the British secretary of state for justice, have issued statements to express their support for the two’s resignations, claiming that Hong Kong residents’ rights are being eroded and the city’s judicial independence is being threatened after the implementation of the National Security Law for Hong Kong (NSL).
The truth is, such criticism of the NSL is absurd and totally ungrounded. Contrary to such unwarranted claims, the NSL fully respects and protects the various rights and freedoms enjoyed by Hong Kong residents under the Basic Law and applicable international conventions. The NSL outlaws only acts that endanger national security; it defends the rule of law principles, including nullum crimen sine lege (no crime without law), presumption of innocence, ne bis in idem (no one should be judged repeatedly for the same offense), protection of the right of access to the court and fair trial, etc.
Critics are particularly vocal about Article 42 of the NSL, alleging that it implies Hong Kong no longer observes the common law principle of presumption of innocence. Article 42 stipulates that no bail shall be granted to a defendant unless the judge has sufficient grounds for believing that he or she will not continue to commit acts endangering national security. These critics have deliberately overlooked Article 5 of the NSL, which explicitly provides that a person is presumed innocent unless and until convicted by the Judiciary. Article 5 is clearly a reaffirmation that the principle of presumption of innocence, prescribed under Article 87 of the Basic Law, must be observed when dealing with national security cases.
The “presumption of innocence” principle has been applied in the adjudication of national security cases. In HKSAR vs Lai Chee-ying (FACC 1/2021), which was adjudicated in February 2021, the CFA unanimously held that Article 5 of the NSL has raised the threshold in determining whether to grant bail in national security cases, but it does not negate the “presumption of innocence” principle. In their judgment, the law lords noted that there were also some offenses in other common law jurisdictions, such as Canada, South Africa and Australia, that expressly placed the burden of proof on the defendant to show that it was unreasonable to deny the bail and continue to hold him or her in custody.
The principle laid down by the CFA is that if having considered all the relevant information, the court is satisfied that there are substantial grounds for believing that the defendant will not continue to commit acts endangering national security, it should apply the presumption in favor of bail. Therefore, having regard to all other matters relevant to the granting or refusal of bail in accordance with the relevant provisions in the Criminal Procedure Ordinance,
Edward Liu
The author is a practicing lawyer qualified in the Chinese mainland, HKSAR, and England and Wales; he is also a member of the International Legal and Dispute Resolution Services Expert Group, the Advisory Body on Promotion of Arbitration, the Steering Committee on Mediation, and the Advisory Body on Third Party Funding of Arbitration and Mediation.
the court may decide on the issue of bail.
As for the allegation that the NSL undermines the judicial independence in Hong Kong, most critics have singled out Article 44 of the NSL, which stipulates that the chief executive shall designate a number of judges from various levels of court to handle national security cases. Critics consider this to be an example of executive interference with the operation of the Judiciary. However, these critics have obviously overlooked, either intentionally or unintentionally, the following four important facts, which render their criticisms totally untenable.
First, the chief executive does not designate judges at will. On the contrary, the chief executive may consult the Committee for Safeguarding National Security of the HKSAR and the chief justice of the CFA beforehand, which means that the chief justice, who is the head of the Judiciary, has a great deal of influence over the chief executive’s designation.
Second, the chief executive cannot designate whomever he or she wants. The chief executive has to choose from the current magistrates and judges from various levels of courts. In accordance with Article 88 of the Basic Law, these judges are appointed by the chief executive upon the recommendation of the Judicial Officers Recommendation Commission, which is chaired by the chief justice of the CFA and is composed of judges and esteemed figures from the legal profession and other professions.
Third, the chief executive has to follow certain rules when designating judges. Article 92 of the Basic Law stipulates that the judicial and professional competence of the judge shall be taken into account, and Article 44 of the NSL provides that judges whose words and deeds are prejudicial to national security shall not be designated.
In other words, so long as there are no acts that endanger national security, there are no other restrictions on judges that possess the judicial and professional competence to be designated for hearing national security cases.
Fourth, the chief executive is only responsible for the designation of judges, whereas the designated judges are fully responsible for the adjudication of the national security cases. These judges are protected by the Basic Law when adjudicating those cases, and they have to uphold the rule of law and justice fearlessly and impartially, and adjudicate cases independently, free from any interference.
Neither the resignation statement of the two British judges nor the British government’s “Six-monthly Report” on Hong Kong has cited any concrete evidence to support the claim of “erosion” of the rule of law and “violation” of judicial independence in Hong Kong. On the contrary, the two British judges have clearly acknowledged in their statement that Hong Kong courts’ commitment to uphold the rule of law continues to be respected internationally.
Five British judges, three Australian judges and one Canadian judge, who are currently serving as overseas nonpermanent judges of the CFA, have issued statements expressing their satisfaction with the independence and integrity of the CFA judges in upholding the rule of law and checking the executive branch. Hence, these judges have decided to stay on with the CFA.
It’s noteworthy that in March last year, Lord Reed said that he would resign as an overseas nonpermanent judge of the CFA only if there was a violation of judicial independence or the rule of law in Hong Kong. In August last year, when Lord Reed and Lord Hodge decided to continue to serve in the CFA, the former said that Hong Kong had maintained a high degree of judicial independence, and that the court’s rulings were consistent with the rule of law. Unfortunately, six months later, the two judges were forced to resign against their will, due to political pressure from the UK government.
When meeting then-chief executive Leung Chun-ying in November 2014, President Xi Jinping pointed out that “the rule of law is an important cornerstone of Hong Kong’s long-term prosperity and stability”.
Understandably, Beijing has consistently upheld Article 82 of the Basic Law. Neither has it ever interfered with the CFA’s decision to invite judges from other common law jurisdictions to participate in adjudication in Hong Kong, nor has it ever sought to change the arrangement of appointing overseas nonpermanent judges. This has demonstrated Beijing’s commitment to safeguarding the rule of law in Hong Kong.
Some Western politicians and media outlets have repeatedly accused Beijing of undermining Hong Kong’s rule of law and judicial independence with the NSL. The truth is, British politicians like Truss and Raab are the ones who have attempted to undermine Hong Kong’s judicial independence by pressuring the two British judges to resign from the CFA. The whole episode was a political drama intended to throw mud at Hong Kong and Beijing.
Some Western politicians and media outlets have repeatedly accused Beijing of undermining Hong Kong’s rule of law and judicial independence with the NSL. The truth is, British politicians like (Liz) Truss and (Dominic) Raab are the ones who have attempted to undermine Hong Kong’s judicial independence by pressuring the two British judges to resign from the CFA.