Hong Kong national security law: two points to consider for court cases

Much of the Honourable Andrew Li’s argument in “National security law must be in line with Hong Kong system” (June 2) is impeccable in upholding the common law principles of non-retroactivity of law, presumption of innocence, fair and open trial, and the independence of the judiciary – the very cornerstone of our legal system. However, Li’s opinion has to be qualified on two points at least.

First, the practice of open trial should be upheld whenever possible, but it must not be exclusive. Consider a national security case which, if held in an open trial, would divulge information undermining national security, the very object the legislation seeks to safeguard. It would therefore follow that such cases would not appropriate to be held in an open court.

Second, Li’s opinion that the disqualification of expatriate or local judges with foreign passports presiding over national security cases would undermine the independence of the judiciary, requires further deliberation. I would argue that independence of the judiciary would be better served with disqualification and, less ideally, recusal of judges in certain national security cases.

Owing allegiance to the Hong Kong Special Administrative Region is not the same as owing allegiance to the People’s Republic of China. If the national security legislation concerns only Hong Kong’s security, any of these judges would be fit to preside over the cases.

Assuming a particular national security case involves allegation of involvement by a foreign country, would it not be considered fair and impartial that any judges, whether expatriate or local, who hold the nationality or passport of that particular foreign country and also other countries that are in a military or political alliance with the foreign country concerned, be automatically disqualified by the legislation, or at least recused by judicial rules from such cases?

K.Y. Tan, North Point