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Saturday, Feb 27, 2021

Hong Kong justice minister says there are no grounds to bar foreign judges from ruling on national security cases, but a special court could help

Teresa Cheng says it would be ‘strange’ to prevent a foreign judge from sitting on such cases. If a special court is set up, judicial independence must be preserved, she adds

Hong Kong’s justice minister says there are no grounds to bar foreign judges from ruling on national security cases, but the city could benefit from setting up a special court to try people over seditious crimes.

The suggestion to make judges recuse themselves based on their nationality was “strange”, Secretary for Justice Teresa Cheng Yeuk-wah said, as it deviated from the former British colony’s long-established norm, now preserved by its mini-constitution, the Basic Law.

But she urged people not to jump to a conclusion too quickly about the possibility of a special court.

Cheng said having a special court could help the judiciary navigate uncharted territory, but such a court should preserve its independence and transparency.

In an interview with the Post, Cheng weighed in on the two suggestions floated by Hong Kong’s pro-establishment figures when they joined officials in Beijing last week to pass a motion to enact the national security law to “prevent, stop and punish” acts and activities amounting to secession, subversion, terrorism and foreign interference in the city.

The move sparked concerns over the city’s freedoms and human rights, and raised questions as to how mainland Chinese law could be adopted in its common law jurisdiction.

Article 23 of the Basic Law requires the Hong Kong government to enact its own national security law, but that article has been in abeyance since 1997.

In 2003, the government was forced to shelve a national security bill after an estimated half a million people took to the streets to oppose the legislation amid fears it would curb their rights and freedoms.

Some members of Hong Kong’s pro-establishment camp are looking to an arrangement in neighbouring Macau, which was formerly under Portuguese administration. Non-Chinese judges there are barred from presiding over national security-related cases, as required by their own version of legislation.

Foreign judges have been presiding over all levels of courts in Hong Kong as part of its common law tradition. Justices from overseas jurisdictions sit on the Court of Final Appeal on a rotational basis, flying in to take up one of the five seats on the city’s highest court.

An earlier report, quoting people familiar with the legislation, suggested the new security law could ban non-Chinese judges. But the opposition camp and some heavyweights from the pro-establishment camp argued against it, including former vice-chairwoman of the Basic Law Committee Elsie Leung Oi-sie, who was the secretary of justice from 1997 to 2005.

Cheng said the Basic Law required Chinese nationality for only two judicial posts – the chief justice and the chief judge of the High Court.

“It would be strange that you can prevent a foreign judge from sitting on [cases related to national security],” she said. But she urged people to keep an open mind about a special court.

Cheng said such a court could make the judiciary more efficient by allowing judges to have a better understanding of specific legal issues. She said such courts already existed in other jurisdictions, adding: “If a special court is to be set up, judicial independence must be preserved and maintained.”

She noted that in cases concerning national secrets, judges might at times find it appropriate not to make trials open to the public, but there was nothing new in that. There were already existing principles allowing judges to decide when a case, concerning sensitive details, should be heard “in camera”– or behind closed doors.

Hearings concerning national security should generally be made accessible to the public, Cheng said.


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