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

Name: Hong Kong police arrest 10 under new national security law
Uploaded: 2020-07-04T22:30:16.000Z
Duration: 3 min 25 s
Description: Hong Kong police arrest 10 under new national security law

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

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A statue of Lady Justice sits on top of the Court of Final Appeal in Hong Kong on April 15. Photo: EPA-EFE

Michael Blanchflower

Published: 6:30am, 5 Jul 2020Updated: 6:46am, 5 Jul 2020

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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Hong Kong police arrest 10 under new national security law

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.

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