Lawyers and opposition politicians have described it as “unusual” that Hong Kong’s leader will have the power to appoint judges to hear trials under the national security legislation Beijing is creating for the city, questioning whether there will still be impartiality in such cases.
But some academics and politicians described the proposal as a compromise amid mounting voices from the pro-establishment bloc that foreign judges in Hong Kong should be banned from handling national security cases that could involve other countries.
During the latest three-day meeting of China’s top legislative body, the National People’s Congress Standing Committee, which ended on Saturday, members further discussed the draft legislation to prohibit secession, subversion, terrorism and collusion with external forces in Hong Kong.
Among the most controversial details of the impending law that emerged on Saturday was a new power to be given to the Hong Kong leader to designate incumbent or former judges to handle national security cases.
Hong Kong Bar Association chairman Philip Dykes said such a rule was “unusual”.
Dykes was concerned about the “complicated role” of the city leader in relevant lawsuits, as she was directly accountable to the central government.
“It is very odd for a person [who has] a stake in the prosecution to select the judges,” he told the Post.
He urged authorities to give detailed definitions of the four crimes and an “exhaustive list” of what actions may be seen as criminal as soon as possible.
Professor Fu Hualing, law dean of the University of Hong Kong, said the chief executive might not have knowledge about which judges were capable of presiding over national security trials.
“The draft legislation should state that the chief executive would make the appointments after consulting the chief justice, who is in a better position to determine which judges are qualified for handling such cases,” he said.
Alvin Yeung Ngok-kiu, leader of the opposition Civic Party, also questioned the impartiality of judges appointed by the chief executive, as a new mainland adviser would sit on a top-level national security commission to be set up to “give orders” to Hong Kong authorities.
Ling Bing, a law professor at Sydney University, also warned the proposal might violate judicial independence in Hong Kong and undermine the credibility of such proceedings.
“Since Hong Kong will carry out the constitutional duty to safeguard national security, Beijing should allow Hong Kong’s judiciary to conduct trials in accordance with normal procedures,” Ling said.
“On the mainland, judges presiding over national security trials are not chosen by governors or mayors.”
Basic Law Committee member Albert Chen Hung-yee, however, described the draft legislation as “a moderate version” of the law, because it allowed the Hong Kong government and courts to handle most of the enforcement work and trials. Still, he believed there was some room for improvement.
“It would be better for the law to state that the chief executive would appoint the designated judges to preside over national security trials based on the recommendation of the chief justice and the Judicial Officers Recommendation Commission,” he said. “The chief executive may not be able to determine which judges are capable of handling such cases.”
Tam Yiu-chung, the city’s sole delegate to the Standing Committee, also described the proposal as a compromise.
He said cases concerning national security were special and might involve different countries, so it was only reasonable to find judges who specialised in the matter to handle them.
In an outline unveiled on Saturday, Beijing also set out a clear bottom line by suggesting the impending legislation would override Hong Kong laws that were not in line with it. The Standing Committee would also enjoy the right to interpret the new legislation.
HKU legal academic Simon Young Ngai-man said “the most worrying part” was that the power of interpretation would lie with the Standing Committee.
“It is unclear whether Hong Kong courts will be allowed to interpret this law or whether it will need to seek an interpretation from the Standing Committee when there is an ambiguity,” he said.
Young also described the supremacy clause as surprising, saying he had previously believed that all promulgated laws through Annex III of the Basic Law, the city’s mini-constitution, were subordinated to the same status as all other legislation in force.
The superior status of the national security law implied that not only existing legislation which was inconsistent was inapplicable, but that all future laws enacted by the legislature could not be inconsistent with it.
“Effectively, it means the Legislative Council cannot amend or repeal this law,” Young said.
Meanwhile, activist Joshua Wong Chi-fung poured scorn on Beijing’s reassurance that the human rights safeguards to which Hongkongers have been entitled would not be jeopardised.
These protections would “vanish into thin air” in view of the poor track record of the Chinese judicial system, said Wong, who regarded himself as “one of the prime targets” under the new law.
“Once Beijing intervenes, offenders can be sent to the mainland for trial and prison … I will probably be subject to secret trial, black jails, televised confession and torture,” Wong, of the activist group Demosisto, said.
When everything seems to be going against you, remember that the airplane takes off against the wind, not with it.