Wednesday, February 22, 2023

Johannes Chan on National Security and Judicial Independence: A Clash of Fundamental Values (new book chapter)

"National Security and Judicial Independence: A Clash of Fundamental Values"
Johannes Chan
in The National Security Law of Hong Kong: Restoration and Transformation,
Edited by Hualing Fu Michael Hor (Hong Kong University Press, July 2022),
Chapter 6, pp. 119-148
Introduction: Drafted in Beijing without any meaningful local public consultation and promulgated only an hour before it came into force, the National Security Law (NSL) was imposed on the people of Hong Kong just before 1 July 2021.  In less than a year, it has dramatically changed the civil and political scene in Hong Kong.  One of the features of the NSL is the Central Government's distrust and determination to curb the power of the judiciary in Hong Kong.  An independent judiciary is the hallmark of the rule of law, the only thing that still distinguishes the two systems between the Hong Kong Special Administrative Region (HKSAR) and the Mainland.  Yet China has a very different conception of the judiciary, and an independent judiciary that could challenge the sovereign power is beyond tolerance.  How this ideological difference led to the enactment of the NSL will be outlined in Part I of this chapter.  Part II will examine the impact of the NSL on judicial independence.  Judicial responses to the NSL will be discussed in Part III.  Part IV explores the room for judicial creativity under the NSL in light of decided cases.  It argues that the worst fear indeed comes from within.  By adopting a differential attitude towards any exercise of sovereign power, the judiciary will inevitably become compliant and there are already signs that the judiciary is losing public confidence in its independence.  Sadly, while the judiciary at the moment is still robust and independent, there is little room for optimism for the future of judicial independence in the HKSAR.

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