Johannes Chan on National Security and Judicial Independence in Hong Kong

National Security and Judicial Independence: A Response

Prof Johannes Chan, SC (Hon)

Chair of Public Law, The University of Hong Kong

Mr Zhang Yong, Vice-Chairman of the Legal Affairs Committee of the Standing Committee of the National People’s Congress, recently made three points in relation to the proposed national security law for Hong Kong.  First, he argued that there is no necessary relationship between judicial independence and jurisdiction of the courts.  Secondly, the appointment of judges is a political process. The power of the Chief Executive to appoint judges for national security cases does not impact on judicial independence.  Thirdly, it is conducive to the better discharge of judicial duties and fairness by excluding judges of foreign nationality to handle national security cases, as this would avoid the problem of split loyalty and will not affect judicial independence.   This article provides a reply to these points in the spirit of rational discussion of legal issues.

Judicial Independence and Jurisdiction

It is true that there is no necessary relationship between judicial independence and jurisdiction of the courts, but there is an interactive relationship between them.  The more limited the court’s jurisdiction is, the less relevance judicial independence becomes.  If the jurisdiction of the courts is severely confined to cases of little importance, judicial independence is meaningless.  If cases that should fall within the jurisdiction of the courts are taken out of its jurisdiction, this would undermine judicial independence.  Personal liberties are at stake in criminal prosecution.  The judiciary plays an important role in safeguarding personal liberty against arbitrary prosecution by the state in all criminal cases.  If criminal offences with heavy penalties are removed from the jurisdiction of the courts so as to deprive the defendants of the right to a fair hearing by an independent and impartial tribunal, this would amount to an interference with judicial independence.  In this regard, judicial independence in the Mainland is a narrow concept that is confined to the court trying a case independently, whereas judicial independence in the common law system is a much wider concept.

Appointment of Judges as a Political Process

The suggestion that the appointment of the judiciary in most countries is a political process is questionable.  The independence of the appointment process of the judiciary is one of the most important safeguards in guaranteeing judicial independence. Indeed, in most common law countries, painstaking efforts are made to ensure the independence of the system of appointment of judges.  Members of the judiciary are usually appointed or recommended by an independent commission.  While the appointment itself may be made by the executive, such appointment power is formal rather than substantive.  The only exception is arguably the United States, where Supreme Court judges are nominated by the President on political grounds.  However, there is an elaborated and complex process of confirmation under which judges of the US Supreme Court are to be confirmed by the Senate, which is a democratically elected body.  The President of the United States is himself democratically elected.  This is a very different system from the situation in Hong Kong.

Appointment of Judges by the Chief Executive

The current proposal suggested that the Chief Executive shall appoint judges for national security cases.  There is no indication of the criteria for the exercise of such power of appointment, and the criteria are clearly not confined to nationality.  In fact, the proposed power is not a general power to appoint judges.  It is a power to assign judges to try a particular type of cases, a power which is normally reserved for the judiciary and forms part of the fabric of judicial independence.   It is to be noted that in national security cases, the HKSAR Government is the prosecution, and the Chief Executive is the chairperson of the proposed National Security Committee.  There is a serious conflict of interests to allow the Chief Executive to nominate judges in this type of cases, and allowing a party to the litigation to assign judges is a fragrant violation of the principle of judicial independence.  So far, there is no convincing justification why interference by the Chief Executive is considered necessary and why this power could not be exercised by the Chief Justice. 

     It is said that the Chief Executive will not nominate a single judge but will just designate a list of judges so that it will still be for the judiciary to assign a particular judge on the list for any national security case.  Yet this does not explain why it is necessary for the Chief Executive to draw up a list of eligible judges to try national security cases in the first place.  It will create an impression of a list of state-approved judges and will undermine public confidence in the independence of the judiciary.

     Further, if the Chief Executive has the power to draw up a list of approved judges, it follows that she would have the power to remove any judges from the list.  In other words, the Chief Executive could decide who could and who could not try national security cases, and worse still, she may remove eligible judges from the list because she is not satisfied with their judgments.  It is the anti-thesis of judicial independence if judges could be appointed and removed at will by the Chief Executive.

Split Loyalty

Not all national security cases would involve the question of split loyalty.  When such a situation arises, the judge concerned would simply recuse himself.  This is the usual principle when there is a conflict of interests on the part of the trial judge.  There is no reason why this general principle could not address the problem of split loyalty.  There is no need for the Chief Executive to draw up a list of approved judges to address this issue.

Judicial Independence

Judicial independence is the cornerstone of the rule of law and the common law system.  The approach of the national security law is to restrict judicial power in national security cases.  What lies behind the arrangement is a lack of trust and confidence in the judicial system.  If the courts are not to be trusted; if restrictions are to be imposed here and there to confine the power or the jurisdiction of the judiciary; and if there is no confidence in judicial independence, it would be very difficult if not impossible to maintain One Country, Two Systems any further.

24 June 2020

Chinese Version:

國安法與司法獨立

陳文敏

香港大學法律學院公法講座教授

日前全國人大常委會法工委副主任張勇撰文，就國安法的法律問題指出三點：第一，司法獨立與管轄權沒有必然關係。第二，法官的任命是一個政治過程，由特首任命法官與司法獨立沒有關係。第三，不容許外籍法官處理渉及國家安全的案件，可避免雙重效忠的問題，不僅絲毫不影響司法獨立，反而能更好保障法官履行職責和司法公正。本著同業討論法律問題的精神，筆者就這三點作出回應。

司法獨立和管轄權
司法獨立和管轄權沒有必然的關係，卻有互動的關係。若果法院的管轄權只限於一些無關痛癢的案件，司法獨立便形同虛設。若果將一些本來應該由法院審理的案件，剔除於法院的管轄權範圍內，自然也會影響到司法獨立。刑法涉及人身自由，當政府透過刑法限制或剝奪人身自由時，獨立的法院在這方面便發揮重要的角色；將嚴重影響人身自由的刑事案件剔除於法院的管轄範圍內，令受影響人士不再得到獨立的司法機關的保障，自然影響到司法獨立。國內對司法獨立的理解只限於獨立的審判權，普通法的司法獨立的理解是更為寬闊的。

法官任命都是一個政治過程
所謂在大多數國家，法官任命都是一個政治過程，這論點值得商榷。法官的任命是司法獨立中最重要的一環，在大部份的普通法國家，法官任命都是一個獨立的過程，以保障司法獨立。雖然最後的任命可能是由行政長官作出，但這行政任命是禮節性而非實質性的。美國是唯一的例外， 美國聯邦法院的法官任命確實是一個政治任命，但總統提名的法官人選必須得到參議院的同意，而參議院是民選產生的，美國總統也是由民選產生的，這和香港目前的情況不能相提並論。

特首任命法官
目前建議由特首任命法官，卻沒有列出特首行使這權力的準則，權力亦非只限於法官的國籍。這任命並非一般的法官任命，實際上，這是容許特首指定一些法官審理一些特定的案件，而在這些案件中，政府是檢控一方，特首也是國家安全委員會的主席，這明顯便出現嚴重的角色衝突，有違司法獨立的原則。建議亦沒有令人釋懷的解釋，為何這些權力不能由首席法官負責，而要由特首行使。
     特首有權指定某些法官才能審理國安的案件，也同時意味特首可以剔除名單中的法官。換言之，在這些案件中，特首可以決定那些法官可以審理這些案件，也可以排除某些法官審理這些案件，甚至原來可以審理這些案件的法官，特首也可以因為不滿他們的判決而將他們剔除名單之外。這樣，司法獨立根本無從談起。

雙重效忠
涉及國家安全的案件並不一定會涉及雙重效忠的問題，當涉及雙重效忠的問題時，相關的法官迴避審理，這種一般處理法官涉及利益衝突的安排，已足以解決雙重效忠的問題，沒有必要由特首插手，由指定法官處理這類案件。

司法獨立
司法獨立是法治的基石，也是普通法制度的根基，國安法的安排是要削弱法院的權力，背後是對法院和法治的不信任。如果要對法院處處提防，對法院的審轄權處處作出限制，對司法獨立處處展現懷疑，那一國兩制便根本無法再維持下去。