How will Hong Kong’s judiciary handle the security law? The first case offers hope

It is encouraging that the judges emphasised the importance of protecting rights and the application of common law principles
This should help ensure the legal system maintains its core principles as it comes under pressure from both sides of the political divide

Cliff Buddle

Published: 9:15am, 25 Sep 2020

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The shock resignation of a distinguished Australian judge from Hong Kong’s top court comes at a critical time for the city’s beleaguered judiciary. James Spigelman, former chief justice of New South Wales, told his country’s national broadcaster he was quitting because of concerns about the national security law passed by Beijing in June.

It is not clear precisely what prompted this veteran judge, a strong advocate of social justice, to depart. But the new law comes at a time of mounting pressure on the judiciary.

The courts have, increasingly, come under attack from one side of the political divide or the other as they dispense justice in sensitive cases arising from last year’s civil unrest. Complaints against judges and magistrates, often politically motivated, have soared.

Chief Executive Carrie Lam Cheng Yuet-ngor, meanwhile, sparked controversy this month by declaring there is no separation of powers in Hong Kong, a stance not easily reconciled with judicial independence. And pro-establishment lawmakers are calling for a committee to be established to lay down sentencing guidelines for judges.

Chief Justice Geoffrey Ma Tao-Li responded to these worrying developments on Wednesday, warning in an 18-page statement that the judiciary must not be politicised. He stressed that sentencing is exclusively a function of the courts and that ill-informed criticism of judges damages public confidence in the justice system.

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If Hong Kong is to emerge from its current troubles and succeed under “one country, two systems”, the ability of the judges to decide cases freely and fairly in accordance with established legal principles must remain intact.

This fundamental principle will be put to the test as cases brought under the new security law are considered by the courts. No doubt, their rulings will be subjected to intense scrutiny.

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A sense of how the courts might approach the new law can be gleaned from a judgment delivered last month. The Court of First Instance considered a habeas corpus application brought by the first suspect detained and charged under the security law. Tong Ying-kit is accused of secession and terrorism. He is alleged to have ridden his motorcycle into police officers on July 1 while carrying a flag bearing the protest slogan: “Liberate Hong Kong; Revolution of our Times”.

Mr Justice Anderson Chow Ka-ming and Mr Justice Alex Lee Wan-tang rejected his bid to be released pending trial on procedural grounds. Habeas corpus should only be used in extraordinary circumstances when more conventional legal avenues are not available, the judges said. Tong later used those conventional channels to seek a review of a magistrate’s decision to refuse him bail, but failed to secure his release.

The case is more memorable, though, for the broader constitutional issues it raised concerning the national security law. Tong’s lawyers challenged part of the security law preventing courts from granting bail in security cases unless there are sufficient grounds for believing the defendant “will not continue to commit acts endangering national security”. This, they said, removed the presumption of innocence and the presumption in favour of granting bail.

The court dismissed these arguments, stating that judges and magistrates were free to grant bail in security law cases. In the “vast majority” of such cases, the decision would be likely to be the same as it would have been before the passing of the national security law, the judges said. Indeed, the security law was not applied when the bail decision was reviewed.

It is encouraging that the judges placed much importance in their ruling on the protection of rights and freedoms. They pointed out that the presumption of innocence is recognised by the security law, along with other rights protected by the Basic Law and the International Covenant on Civil and Political Rights.

They stressed that the courts have a duty to protect those rights and, as far as possible, to interpret the security law in a way that achieves that aim. Any doubts about the application of the bail provision should, therefore, be resolved in favour of the defendant, they added.

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The judges also took the opportunity to declare that the courts will use the common law approach to interpret the security legislation. This was in response to a worrying suggestion from the government’s lawyer that a different strategy may be needed, given that the security law is a national law passed by Beijing.

The court dismissed an argument that the chief executive’s controversial selection of a pool of judges for national security cases undermined the independence of the judiciary, stressing that the judiciary retains control over which judges hear a particular case. All judges are bound by an oath to decide cases without fear or favour.

The findings of the court may help limit the impact of the security law in future cases. The application of common law principles, the ability to resolve security case issues by more conventional means and the importance attached to the protection of rights would go some way to ensuring the city’s legal system maintains its core principles.

But the biggest issue was left for another day. The government’s lawyer argued that Hong Kong courts have no power to declare whether the national security law is unconstitutional or inconsistent with the Basic Law. If this is true, the courts will not be able to sufficiently protect rights enshrined in the mini-constitution when hearing security law cases.

The court said the question of how to resolve conflicts between the security law and the Basic Law is one of “fundamental importance” to be left for future consideration. How that issue is eventually resolved will determine the impact of the security law on rights and freedoms in Hong Kong.

There are many sensitive court decisions to come as the security law is applied. It is imperative that such rulings are respected by all, even if controversial. The government must consistently speak up for judicial independence, especially when it loses a case. Any interventions by Beijing, through its power to interpret the Basic Law and national security law, should be kept to a minimum.

It is to be hoped that there will be no more resignations by foreign judges on the Court of Final Appeal. Their expertise and experience has played a key part in building an international reputation for the court. Their presence offers reassurance that Hong Kong’s judiciary remains independent.

Whether the city can retain them will depend on the extent to which the judiciary is allowed to get on with its job of deciding cases freely and fearlessly without interference in these politically turbulent times.

Cliff Buddle is the Post’s editor of special projects

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