SCIO briefing on the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region
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E-mail China.org.cn, July 4, 2020
The Times:
What measures in the national security law can guarantee judicial independence in Hong Kong? The national security law stipulates that the chief executive designates judges. Does this violate the spirit of judicial independence? Thank you.
Shen Chunyao:
The Constitution of China clearly stipulates that the people's courts and the people's procuratorates exercise power independently, free from interference by any administrative organ, public organization or individual. This is the clear provision on the independent exercise of judicial power and procuratorial power in the country's rule of law. There are also very clear provisions in the Basic Law of the HKSAR. It is clearly stipulated under Article 85 of the Basic Law that the courts of the HKSAR shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions. The Basic Law also has clear provisions for prosecution. Article 63 clearly stipulates that the Department of Justice of the HKSAR shall control criminal prosecutions, free from any interference. Judicial independence is clearly stipulated and implemented in accordance with the Constitution, the Basic Law, and other relevant laws.
Just now, you have mentioned the judges who handle cases concerning offence endangering national security. There is a relevant provision in the national security law, which is also an institutional rule. Under Article 44 of the national security law, the chief executive shall designate a number of judges from the magistrates, the judges of the District Court, the judges of the Court of First Instance and the Court of Appeal of the High Court, and the judges of the Court of Final Appeal to handle cases concerning offence endangering national security. It will not affect the independent exercise of judicial power by court judges and is an issue in different dimensions.
Designating judges has the following implications: (1) Judges to be designated will be existing judges, not other people who are not judges. (2) The designated judges are responsible for cases concerning offences endangering national security. Other judges, not so designated, will still be able to handle other cases. The types of judicial cases are quite diverse. Cases concerning offence endangering national security are only one of them. (3) Designating a number of judges from the magistrates, the judges of the District Court, the judges of the Court of First Instance and the Court of Appeal of the High Court, and the judges of the Court of Final Appeal means making a list within a certain range. In specific trials, the judges will be chosen according to the arrangements of existing provisions. (4) The law clearly stipulates that before making such designation, the chief executive may consult the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region and the Chief Justice of the Court of Final Appeal. (5) Speaking specifically about the trial of the case, it is still an independent trial without any interference. Therefore, such an institutional arrangement reflects the HKSAR's constitutional responsibilities, especially the main responsibility of maintaining the national security of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region. At the same time, it takes the actual situation of Hong Kong's judicial and judge system into consideration. It would also be conducive to improving the efficiency of trials, as the designated judges on the list may have rich experience and be good at handling such cases, which could help unify judgment standards because this is a type of case and this type of case may have relevance and its characteristics.
Take the characteristic of cases of "committing secession" and "subverting the state power." We can't let these offences happen. If the country is divided and the state power is subverted, how can you prosecute the crimes? This is a characteristic of this type of crime. The state power of the People's Republic of China, be it the Central People's Government or the local government authorities at all levels, including the HKSAR government -- the whole country will never tolerate the offences of secession and subversion. We cannot allow criminals to achieve such an ultimate goal. This is the characteristic of cracking down on such crimes. We determine the legal standards which apply to the relevant crime based on the characteristics of such cases. Therefore, the system of designating judges is conducive to formulating a relatively unified standard of judgment and making clear the rules and norms of specific applications of the law.
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