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.
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 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