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Monday, Jan 18, 2021

Hong Kong’s national security law must follow common law, former chief justice says

While calling Beijing’s move understandable, Andrew Li argues that offences must be limited in scope, trials openly carried out and defendants presumed innocent. Suggestion that only judges who are Chinese nationals hear cases is unnecessary and would damage judicial independence, he says

Beijing’s proposed national security law for Hong Kong must conform to common law principles such as a restricted scope of offences, open trials and the presumption of innocence, the city’s first post-handover chief justice says.

In a commentary published in the South China Morning Post on Tuesday, Andrew Li Kwok-nang said barring foreign judges from presiding over national security trials would be detrimental to the judicial independence guaranteed by the Basic Law, Hong Kong’s mini-constitution.

The National People’s Congress (NPC) on Thursday endorsed a resolution to authorise its standing committee to craft the law, which Li said was understandable and justifiable.

The law, which could be in place as early as August, is meant to “prevent, stop and punish” threats to national security by outlawing acts and activities of secession, subversion, terrorism and foreign interference in the city’s affairs.

The bill will be drawn up and passed by the NPC Standing Committee before being added to Annex III of the Basic Law.

The Hong Kong government will have to set up new institutions to safeguard national security and also allow mainland agencies to operate in the city “when needed”.

Li noted the city had failed to discharge its constitutional duty to introduce such a law as required by Article 23 of the Basic Law after it returned to Chinese rule in 1997.

“Having regard to events in Hong Kong in the last few years, the decision of the NPC to authorise its standing committee to enact national security legislation for Hong Kong is understandable and justifiable,” he said.

“As I understand it, the intent is that the legislation will be designed to fit Hong Kong’s legal system.”

Li, who served as the city’s top judge from 1997 to 2010, said the new law must not be retrospective and offences must be defined with reasonable certainty.

“Their scope must be restricted to what is necessary to achieve the legislative purpose,” he said, adding that investigatory powers must be governed by local law.

“In particular, premises cannot be searched and phones cannot be tapped unless judicial authorisation has been obtained,” Li said. “Prosecution decisions should be made in accordance with our Prosecution Code.”

Trials should be conducted in Hong Kong openly and fairly. The accused would be presumed innocent and guilt must be established beyond a reasonable doubt, he said.

“When consulted as required by the Basic Law, the Hong Kong government must make every effort to ensure that the proposed law conforms to the principles of our legal system,” he said.

Responding to the suggestion that only judges who were Chinese nationals with no right of abode in any foreign country should be allowed to hear national security cases, Li said: “Such a requirement would be detrimental to judicial independence as guaranteed by the Basic Law.”

“Under it, judges are chosen on the basis of their judicial and professional qualities,” he said. “Such a requirement will bar not only non-permanent overseas judges in the Court of Final Appeal but also many full-time Hong Kong judges at all levels of court, both local and expatriates, who are believed to hold foreign passports.”

Li noted all judges in Hong Kong must swear to uphold the Basic Law and bear allegiance to the special administrative region.
“A judge’s ability to fulfil this oath fully is not affected by his holding a foreign passport. There is no conflict or perceived conflict,” he said.

“Whatever the arrangements in other jurisdictions may be, barring our judges who hold a foreign passport from dealing with national security cases in Hong Kong would not be justified.”

Macau, China’s other special administrative region, passed its national security legislation in 2009. Its Legislative Assembly passed a bill last year to stipulate that all cases involving national security would be tried only by local judges of Chinese nationality.

There is no nationality requirement for judges in Hong Kong, except that the chief justice and the chief judge of the High Court must be Chinese citizens and permanent residents of the city with no right of abode in any other country.

“It should be noted that since 1997, such judges had dealt with sensitive cases,” he said. “No one had suggested that they should have been disqualified from sitting in these cases.”


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