Worries over Hong Kong judiciary independence ‘ignorant’: Carrie Lam

蘋果日報 2020/06/23 22:03



Hong Kong leader Carrie Lam has dismissed concerns about her upcoming powers to appoint select judges to hear national security cases, saying it is “ignorant” to worry despite a former chief justice warning against the arrangement.

Lam on Tuesday said she had not seen all the clauses of the Hong Kong national security law now being drafted, but felt the need to “solemnly refute” claims that the judiciary of the semi-autonomous city would be undermined.

A resolution to impose such legislation on Hong Kong was rubber-stamped by the Chinese legislature in late May and the law is expected to come into force about a week from now.

According to an explanatory statement published by the official Xinhua News Agency on Saturday, Beijing will bestow on Hong Kong’s chief executive the power to select judges to hear cases under the new law. The statement drew warnings from leading legal eagles on Tuesday, with former chief justice Andrew Li calling the move “detrimental” to the city’s independent judiciary. The Hong Kong Bar Association issued a statement echoing Li’s views.

Lam said such concerns were “ignorant”, noting that judges in existing special courts, such as the Lands Tribunal and Labour Tribunal, were also appointed by the chief executive. She said she would only appoint a list of judges to preside over national security cases in general, without picking particular judges to hear specific cases.

The list of judges would be appointed based on the current procedures of going through the Judicial Officers Recommendation Commission, she said, while dismissing the possibility of excluding foreign judges, as suggested by some of her pro-Beijing political allies. The chief justice would be consulted in the process, she said.

“As chief executive, I don’t know that many judges. I won’t be familiar with their expertise. Therefore, in my opinion, the chief justice must be consulted,” she said.

Regarding concerns over how Hong Kong’s rule of law would be affected, Lam said there were “similarities” between the common law system in Hong Kong and Chinese law in the mainland. She added that the legal rights of a suspect prosecuted under the new law would be protected.

Lam’s remarks failed to persuade practitioners in the legal sector. The Bar Association said in a statement that the new power to be conferred on the chief executive was “contrary to the intent and spirit of the Basic Law, and poses a threat (perceived or actual) to judicial independence.”

The association said it was vital for judicial decisions in Hong Kong to be perceived by the public as being made by judges on exclusively legal and factual merits of the case and free from any actual or perceived influence from the executive arm of the government.

Association vice-chairperson Anita Yip said Lam was “twisting concepts” by saying it was the practice for judges to be appointed by the chief executive.

Yip noted that, according to the Xinhua explanatory statement, the city’s leader was empowered to “designate” judges — a departure from the current practice of taking recommendations from the Judicial Officers Recommendation Commission.

She said it was unclear whether consultation with the chief justice would be mandatory in appointing the judges.

Yip further added that the chief executive’s power to appoint judges would conflict with her new role as chair of a planned national security commission answerable to Beijing. She said the chief executive, in appointing judges, might have to take Beijing’s views into account in certain national security cases.

James To, a lawyer and legislator of the Democratic Party, said it was “a lie” for Lam to claim the city’s judicial independence would not be affected. It was “heartless” for her to say that Hong Kong’s legal system was similar to the mainland’s, he said.

“After the national security law is enacted, Hong Kong’s judiciary system and ‘one country, two systems’ would be completely destroyed. That would make [the legal system of] Hong Kong similar to the mainland,” he said.
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