About 100 fishing boats in Hong Kong sail on July 1 in Victoria Harbor to celebrate the 23rd anniversary of its return to the motherland and the first day of the enforcement of the National Security Law in the city. Photo: cnsphoto
Andrew Li Kwok-nang, a former chief justice of the Court of Final Appeal of the Hong Kong Special Administrative Region (HKSAR), raised questions about the national security law for Hong Kong recently. He argued that the HKSAR chief executive’s power to select judges who would deal with national security cases would be detrimental to the city’s judicial independence. His opinions were echoed by the Hong Kong Bar Association, some local scholars as well as some Legislative Council members. We believe Li’s views do not hold water.
It is widely known that the HKSAR’s judicial independence is part of the essence of the “one country, two systems.” Because of such importance, the central government has no intention to jeopardize it. Also because it is important, Hong Kong society, especially the legal circles, should have a correct understanding of it and should not over-interpret it out of political reasons or personal values.
As a legal concept, judicial independence has its strict meaning. In Hong Kong, according to the Basic Law, “the courts of the Hong Kong Special Administrative Region 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.” But who the judicial institutions should consist of is not determined alone by judicial institutions. This is the common logic of the rule of law all over the world. The chief judges in many countries are appointed by the chief executive. For instance, in the US, all federal judges are nominated by the president and then approved by congressmen and appointed by the president. The appointments of key judges in Canada and the UK follow similar rules.
We should understand the Basic Law accurately instead of based on merely an impression. The HKSAR’s political system is an executive-led system, with the chief executive at its core, instead of separation of powers. According to the Basic Law, the Hong Kong chief executive is not only head of the administrative agency of the HKSAR, but also head of the HKSAR. The chief executive is the only person who represents the HKSAR and is responsible to the central government. Overriding, weakening or dividing the power of the chief executive, under the disguise of so-called judicial independence, violates the rules of the Basic Law and the national security law for Hong Kong. This will impact Hong Kong’s political system.
The chief executive also chairs the Committee for Safeguarding National Security of the HKSAR, and is thus in charge of appointing judges who hear criminal cases that endanger national security. If the power is given to others, then the chief executive’s responsibility for national security will be blurred. The implementation of the national security law for Hong Kong will be interrupted.
The enactment of the national security law for Hong Kong has boosted the confidence of Hong Kong society. The positive reaction of the Hong Kong stock market is an important sign. This is the confidence that the law will be firmly implemented and Hong Kong will gradually regain its stability. Let the implementation of the law be the real turning point of Hong Kong’s situation, and let the city get rid of the long-standing chaos and get back to the right track of comprehensive development. This is the core interest of all Hong Kong people.
The power of interpretation of the Basic Law rests with the National People’s Congress (NPC). The NPC Standing Committee enacted the national security law for Hong Kong on the basis of the Constitution and the Basic Law. The Hong Kong legal community respects and strictly implements the provisions of the national security law. This is a principle that cannot be overridden by any other principle, according to the rule of law. Andrew Li’s challenge to the national security law is neither in line with the real content of the Basic Law, nor in line with the above-mentioned principle.
In fact, almost all doubts about the national security law for Hong Kong result from the politicization of Hong Kong laws, and are driven by values. Regrettably, the so-called politics and values are shaped by the US and other Western countries, and do not correspond to Hong Kong’s return to China.
Hong Kong cannot keep sinking into the political traps set up by the US and other Western countries. If the politics is messed up, so will be the whole system. Some judges may wrongly sympathize with and even shelter the rioters, and Hong Kong’s rule of law will be lost. Hong Kong society should break free from the manipulation of extreme politics. If the city succeeds in doing this, a bright future awaits it.
While the central government and mainland society really care for Hong Kong, the US wants to turn Hong Kong into a tool. Hopefully, Hong Kong society will make this clear, and then some people will no longer be confused about the law. Now is the key opportunity for Hong Kong’s stability and order, and we should not miss it.