Hong Kong still enjoys judicial independence despite top judge resignation, national security law fears: government
Hong Kong’s government defended the integrity of its common law system and judicial independence following the resignation of a top overseas judge who cited concerns over the implications of the recently imposed national security law.
“Nobody should doubt the HKSAR government’s commitment to the rule of law and judicial independence,” a government spokesperson said in a statement released on Saturday night.
“Under Article 85 [of the Basic Law], the courts of the HKSAR shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”
The statement came after Lam said on Friday that the appointment of Australian judge James Spigelman as a non-permanent judge of the Court of Final Appeal was “revoked” earlier this month without explaining why.
Spigelman then told ABC that he had resigned “for reasons related to the content of the national security legislation.” But he did not elaborate further. ABC cited the Hong Kong government saying that Spigelman tendered his resignation on Sept. 2, two months after the national security law was passed by Beijing and imposed on Hong Kong.
The resignation came the day after Lam stated that Hong Kong’s constitutional system had no separation of powers between the executive, legislature and judiciary, but rather, they were accountable to Beijing and “the three institutions can work together.”
The news of Spigelman’s resignation sent a shockwave to the local and international communities. British MP and former leader of the Conservative Party Sir Iain Duncan Smith weighed in saying that Beijing’s continuous crackdown on Hong Kong’s freedoms and autonomy was “exposing decent people to intolerable structures.”
The Hong Kong government attempted to counter the criticisms in Saturday’s statement, saying that the city now has 13 overseas non-permanent judges and their presence at the Court of Final Appeal was a vote of confidence in the city’s judicial independence, “helps maintain a high degree of confidence in our legal system, and allows Hong Kong to maintain strong links with other common law jurisdictions.”
Hong Kong’s common law system and judicial independence have been the city’s “unique strength and advantage,” the statement read, adding that the Court of Final Appeal is given the power of final adjudication. But the government statement failed to mention that Beijing has a track record of overturning rulings by the Court of Final Appeal through its power to make binding “interpretations” of the Basic Law, the city’s mini-constitution.
A non-permanent judge could resign at any time and no consultation or approval was needed, the statement continued, referring to Spigelman’s departure. It added that he “did not give any reasons for his resignation.”
The national security law also stipulates that the core principles of the rule of law will be applied, such as the presumption of innocence, the right to a fair trial and that “conviction and sentencing of crimes should be well defined in the law,” the spokesperson said. The new law will not affect Hong Kong’s judicial system, the spokesperson added.
The Hong Kong government also stressed that although judicial independence was enshrined in the Basic Law, the political structure of the city is “an executive-led system.” It did not, however, address how to uphold judicial independence when the city has no separation of powers, which Lam had stated.
James To, a pro-democracy lawmaker and lawyer, criticized the government’s response for being a self-deceiving lie.
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