National security law: former Beijing official accuses Hong Kong’s first post-handover chief justice of not grasping city’s Basic Law
- Xu Ze, former deputy director of Beijing body in charge of Hong Kong affairs, says Andrew Li has helped fuel myths about city’s political system
- In a warning before national security law took effect, Li said city leader’s powers to designate judges for those proceedings undermined judicial independence
“I hope Li and those who agree with him could make some headway in this direction.”
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Lau Siu-kai, vice-president of the Chinese Association of Hong Kong and Macau Studies, a semi-official think tank of which Xu is the president, said on Monday that Xu’s views represented Beijing’s line of thinking.
“Beijing has been unhappy with the distortion of the Basic Law by the judicial sector in Hong Kong,” Lau said.
Li, who served as chief justice between 1997 and 2010, declined on Monday to respond to Xu’s comments.
In a statement to the Post on June 22, Li had said that empowering the chief executive to select judges under the national security law would be “detrimental to the independence of the judiciary”.
His views were shared by the Bar Association, the city’s professional body for barristers, and the Law Society, which represents its solicitors.
The national security law, which took effect on June 30, aims to stop and punish acts of secession, subversion, terrorism and collusion with foreign forces to endanger national security, and carries a maximum penalty of life imprisonment.
Xu said the Basic Law established an executive-led political system with the chief executive at its core, rather than a structure based on the principle of separation of powers between the executive, legislative and judicial branches.
“The chief executive is not only the head of the executive, but also the head of the special administrative region. The powers vested in her include that of the appointment of judges,” he said.
“Why would Li think such an arrangement is tantamount to executive interference with the judiciary, and is detrimental to judicial independence?” Xu asked.
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Under the Basic Law, Hong Kong’s mini-constitution, judges are appointed by the chief executive on the recommendation of the Judicial Officers Recommendation Commission, which is chaired by the chief justice.
In his June 22 statement, Li said: “The judiciary is independent from the executive authorities. It is the independent judiciary which should decide on the judges who would hear these cases without any interference from the executive authorities.”
But Xu said: “The primary responsibility for implementing the Basic Law rests with the chief executive and the powers vested in her include that of the appointment of judges. Shouldn’t it be within the chief executive’s scope of power to select judges to deal with national security cases?”
Xu argued that the chief executive’s power to appoint judges was “substantive rather than procedural”.
“Li and others who agree with him have made these arguments that run counter to the Basic Law because they failed to accurately and comprehensively understand that the constitutional order in ‘one country, two systems’ is based on both the constitution and the Basic Law,” Xu said.
A senior counsel who knows Li well said he was surprised at the personal attack levelled against him.
“According to my understanding, Li remains of the view that Beijing’s decision to enact national security legislation is understandable and justifiable,” the senior counsel said.
“He felt he should express these concerns during the consultation process [before the law was passed]. These views have been widely shared by the Law Society, the Bar Association and Professor Albert Chen Hung-yee [a member of the Basic Law Committee],” the lawyer said.
“If even these concerns expressed in good faith cannot be tolerated, it would be a sad day,” the senior counsel said.
Bar Association vice-chairwoman Anita Yip said they agreed with Li. “The designation of judges from the pool of existing judges for national security cases is not the norm and it’s unprecedented,” she said.
Chen said last month it would be better if the national security law clearly stated the chief executive would appoint judges to preside over national security trials based on the recommendation of the chief justice and the Judicial Officers Recommendation Commission.
Speaking on condition of anonymity, a senior legal figure said the crucial question was whether safeguards should be embedded into the arrangements for the recommendation of the chief justice, to help protect the principle of judicial independence.
Hong Kong national security law official English-language version:
“The [national security] law provides for none. The criteria is not specified and the chief executive can take into account whether the judge has a strong record of pro-government rulings.
“The chief executive can decide whether to consult the chief justice, and can ignore his views.
“And what input can the Committee for Safeguarding National Security give on such selections?”
The legal figure said Xu’s reviews reflected long-standing differences in the understanding of judicial independence between many lawyers in Hong Kong and Beijing.
Ling Bing, a law professor at Sydney University, said Xu’s criticism of Li was based on his narrow understanding of judicial independence in Hong Kong.
But Ip Kwok-him, a Hong Kong deputy to the National People’s Congress, said Xu was right in pointing out that the chief executive enjoyed substantive power in appointing judges.
