Does the chief executives appointment of judges to hear national security cases undermine judicial independence?

category:Global
 Does the chief executives appointment of judges to hear national security cases undermine judicial independence?


Justice Lee listed three reasons for his view. Firstly, the judiciary is independent of the executive body, and it is up to the independent judiciary to decide the judges to hear cases involving national security without the intervention of the executive; secondly, the chief executive lacks the experience and expertise required for the selection of judges; thirdly, as the chairman of the Hong Kong Council for the maintenance of national security, it is not appropriate for the chief executive to select appointed judges alone. These three reasons seem reasonable. But is it in line with the political system of the SAR as stipulated in the basic law? The answer is: no! The reasons are as follows.

First of all, the political system of the SAR stipulated in the basic law is an executive led system with the chief executive as the core, rather than separation of powers.

According to the provisions of articles 43 and 48 of the basic law of Hong Kong, the chief executive is the head of both the SAR and the SAR government, which is often referred to as double heads. He is responsible for the implementation of the basic law and other laws applicable to the SAR in accordance with the basic law Other laws include the national laws which are listed in Annex III of the basic law and are applicable to the SAR. Lets look at the provisions on the political system of the SAR in Chapter IV of the basic law. This chapter is divided into six sections. The first section is the chief executive, and the second to fourth sections are executive organ, legislative organ and judicial organ. This shows that the chief executive is at the core of the power operation of the SAR in the political system of the Hong Kong Special Administrative Region and is the hub of the constitutional relationship between the SAR and the central government. According to the above provisions, in Hong Kong, only the chief executive can be accountable to the central government on behalf of the SAR. It is for this reason that the chief executive is endowed with extensive powers by the basic law and is responsible to the Central Peoples government and the SAR. These powers are by no means enjoyed by the head of an executive organ alone. Therefore, the political system of Hong Kong is an executive led system with the chief executive as the core under the leadership of the central government.

According to justice Li Qian, if the chief executive is only the head of an executive organ, it may be established, but the problem is that the chief executive is not only the head of the executive organ, but also the head of the Special Administrative Region. The responsibility of the chief executive determines that the chief executive is the first person responsible for the implementation of the basic law of the SAR, and the powers entrusted to him include the appointment of judges. Is it not within the scope of the chief executives authority to appoint judges to hear national security cases under the national security law? Then, why does justice Li think that the chief executives appointment of judges to hear national security cases is administrative interference in justice and undermines judicial independence? Does he not understand the basic law? Im afraid not! Instead, he established the Constitutional Jurisdiction of the Hong Kong courts through precedents, that is, the power of constitutional review. He tried to create judicial independence and judicial supremacy. He regarded the chief executive as only the head of the executive organ. Only then could he come to the view that the chief executives appointment of judges was an administrative interference in justice, which would damage judicial independence. This is also the main reason why Hong Kong has long misunderstood the political system of the SAR, that is, the administrative leading system with the chief executive as the core has been distorted into a system of separation of powers. In this regard, we have to point out once again that separation of powers is not the institutional design of the basic law! It cant be! This is determined by the state structure of unitary system in China. As early as 1987, when he met with members of the Drafting Committee of the basic law of Hong Kong, Comrade Deng Xiaoping clearly pointed out that the system of Hong Kong should not be copied from the western system and that separation of powers should not be carried out. This is the fundamental guiding ideology for the design of the political system of the SAR, which is also an important legislative intent. If we have a correct understanding of the chief executives legal status, powers and responsibilities, it is impossible to reach the view of justice Li.

Secondly, the appointment of judges is an important power conferred on the chief executive by the basic law of Hong Kong.

According to the basic law, the power to appoint judges belongs to the chief executive. Article 48 (6) of the basic law of Hong Kong stipulates that the Chief Executive shall appoint or remove judges of courts at all levels in accordance with legal procedures. This rule is simple and clear, and no one can fail to understand it. At the same time, Article 88 of the basic law stipulates that judges of the Hong Kong courts shall be appointed by the chief executive on the recommendation of an independent committee composed of local judges, eminent persons from the legal profession and other fields. First of all, the power to appoint or not to appoint judges rests with the chief executive, which is substantive rather than procedural. Secondly, the independent committee provided for in Article 88 has the right of recommendation, and the Chief Executive shall make a decision on the appointment from the list recommended by the Committee. Thirdly, the right of recommendation can not be interpreted as a decision-making power. The chief executive has the right to refuse to accept the recommendation made by the Committee and request it to re recommend it until the chief executive accepts and makes an appointment. At the end of the day, only the chief executive has the power to appoint judges. Therefore, it can be further understood that the provisions of the Hong Kong national security law that the chief executive may consult the National Security Commission and the chief justice of the court of final appeal before the appointment of judges appointed by the chief executive to hear national security cases is consistent with the relevant provisions of the basic law in legal principle and is a matter within the scope of the chief executives powers and responsibilities. The judges appointed by the chief executive to hear national security cases are appointed from among the judges who have been appointed in accordance with the basic law. There is no question of appointing another group of judges. These judges have been recommended by the above-mentioned independent committee before their appointment, so there is no need to recommend them again. In view of the importance and particularity of safeguarding national security, the national security law stipulates that the Special Administrative Region shall establish a national security committee. The National Security Commission is not the chief executives one-man body. There are also consultants sent by the Central Peoples government, which are responsible for maintaining national security in the SAR. When the chief executive designates judges to hear national security cases, the chief executive consults the agency Thats right. In addition, the chief executive has to consult the chief justice of the court of final appeal, which reflects the legislative spirit of the national security law to respect and safeguard the judicial system of the SAR. Therefore, it is unnecessary for Mr. Li to worry.

It must be pointed out here that the Hong Kong National Security Council and the chief justice of the court of final appeal only play an advisory role in the process of appointing judges by the chief executive. The power of the chief executive to appoint judges must not be turned into a rubber stamp. The chief executives power to appoint judges in accordance with the basic law and the power to appoint judges in accordance with the national security law are substantive, not formal or procedural, and cannot be distorted or distorted in the implementation.

Mr. Lee also said that the chief executive is the chairman of the Hong Kong National Security Council, so it is not appropriate to appoint judges. The president is also the chairman of the National Security Council of the United States, but this does not affect his power to nominate and appoint federal judges. It must be made clear here that the chief executive does not select judges for specific cases. Which judge is responsible for the trial in specific cases is decided by the judicial organs according to the procedures. As mentioned earlier in this article, the chief executive is endowed with the status and responsibilities of double heads by the basic law and is the first person responsible for the SAR. Therefore, it is an inevitable requirement of the basic law that she or he should be the chairman of the Hong Kong Committee for the maintenance of national security, and the appointment of judges by the chief executive to try national security cases is an important aspect of the chief executives accountability to the central government on behalf of the SAR.

In fact, in many countries and regions of the world, it is common practice for the chief executive or the head of state to select judges, or for the executive organs to appoint judges to specialized courts. All federal judges in the United States are nominated by the president, approved by the Senate and appointed by the president. The chief justice of the Supreme Court of Canada is nominated by the prime minister after detailed investigation and consultation with the legal profession by the Minister of justice. The judges of the international commercial court set up in Singapore in 2015 are appointed by the president. The French National Security Court is usually composed of one chief judge, two judges and one general or school officer designated by the government. Although we dont think it is appropriate to use the system of a certain country to illustrate the system of Hong Kong, and we believe that justice Li will not be unaware of this, but the statement that the chief executives appointment of judges is the interference of the executive authorities in the administration of justice cannot be established.

Third, judicial independence in Hong Kong cannot be interpreted arbitrarily.

As a legal concept, judicial independence has its strict connotation and extension. In Hong Kong, this is mainly reflected in the provisions of Article 85 of the basic law: the courts of the Hong Kong Special Administrative Region shall conduct trials independently and shall not be subject to any interference, and the judicial officers performance of their judicial duties shall not be subject to legal investigation. That is to say, judicial independence means that judges independently judge cases without interference from any individual or institution, and judicial personnels performance of duties is not subject to legal investigation. In order to protect the judicial independence of Hong Kong, the basic law provides a number of safeguards, including the protection of judges tenure and economic security. However, the judiciary does not have the right to refuse legal restrictions from other aspects, and the judiciary can not become an independent kingdom. It is not up to the judiciary to decide how to form a judicial body. The chief executive is the one who has the power to appoint judges. Whats more, although the basic law gives Hong Kong the right of final adjudication, its judicial organ is still a local judicial organ. Its jurisdiction and the power to interpret the basic law when hearing cases are clearly defined by the basic law. Article 19 of the basic law provides that the courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as national defense and foreign affairs; and Article 158 of the basic law stipulates that the final power of interpretation of the basic law shall be vested in the Standing Committee of the National Peoples Congress, and the decisions and interpretations made by the courts of Hong Kong to the Standing Committee of the National Peoples Congress must be complied with. Having said that, we can not help reiterating that judicial independence is by no means judicial independence, let alone judicial supremacy. Looking through the basic law, we can find that the basic law is the basis of Hong Kongs small constitution, and there is no provision giving Hong Kongs courts Constitutional Jurisdiction. Justice Li Qian is the leader in the legal and judicial circles of Hong Kong. He should know that his words must be justified Avenue.

Finally, we would like to say that the reason why Mr. Li and his responders put forward some views that violate the basic law is that they have never fully and accurately understood that the constitutional order of one country, two systems is based on the Constitution and the basic law. To carry forward the cause of one country, two systems in Hong Kong, the first thing is to understand the constitutional order and its basis of Hong Kong and reach a consensus. This is the key to ensure the stability and long-term development of one country, two systems in Hong Kong. Therefore, we should study the basic law and the constitution seriously. To clarify the relationship between the Constitution and the basic law, and between the central government and the Special Administrative Region, is a basic skill that everyone who intends to take Hong Kong as their home and build a new home for Hong Kong, especially those who hold public power and hold important positions, must master. We hope that justice Lee and his responders will work in this direction.

Author: Xu Ze, President of the National Association of Hong Kong and Macao Studies

(function(){( window.slotbydup=window .slotbydup||[]).push({id:u5811557,container:ssp_ 5811557, async:true }Li Zhuming and others tried to stop the police from checking mobile phones, but they were approved by Hong Kong judges. Some people said that the judge appointed by the chief executive of Hong Kong was rule of man. Tang Jiahua: its strange. Source: observer.com editor in charge: Hu Shuli_ MN7479