HONG KONG • Senior Hong Kong lawyers expressed alarm yesterday at plans for the city’s leader to select judges for national security cases, calling it the most serious challenge to the territory’s vaunted judicial independence since the 1997 handover to Chinese rule.
The move was among the details of a new national security law for Hong Kong released by the official Xinhua news agency on Saturday – legislation that is expected to be passed soon by the Standing Committee of China’s Parliament, the National People’s Congress.
As well as heading a new local national security council supervised by Beijing officials, the city’s Chief Executive, Mrs Carrie Lam, will also have the power to appoint judges to hear cases under the law.
Hong Kong Bar Association chairman Philip Dykes described as “extraordinary” any move to have Mrs Lam allocate judges, saying it cut to the core of the independence of the judiciary that is protected by the Basic Law, the city’s mini-Constitution.
“This is the biggest shift since the handover,” Mr Dykes said. “You can’t be slightly independent any more than you can be slightly pregnant. You’re either independent or you’re not.”
With Mrs Lam heading the council, “you’re picking a judge for a contest in which you have an interest”, he added.
Hong Kong and Chinese officials say the law must be urgently imposed on the former British colony after sometimes-violent protests over the last year exposed the need to tackle separatism, subversion, terrorism and collusion with foreign forces.
The law is stoking fears among foreign governments as well as Hong Kong’s democracy activists, who were already concerned that Beijing is eroding the extensive autonomy promised when Britain handed the city back to China under a “one country, two systems” formula.
Hong Kong’s common law-based legal system is widely seen as the bedrock of that formula, underpinning its status as a global financial hub.
Speaking privately, other senior lawyers have also expressed deep concern, saying it appeared to confirm their fears that Beijing wanted to curb the “separation of powers” that made Hong Kong judges an important check on the government. Some admitted to being increasingly nervous about speaking out, due to Beijing’s growing squeeze.
This is the biggest shift since the handover… You can’t be slightly independent any more than you can be slightly pregnant. You’re either independent or you’re not.
MR PHILIP DYKES, chairman of the Hong Kong Bar Association, who describes as “extraordinary” any move to have Chief Executive Carrie Lam allocate judges, saying it cut to the core of the independence of the judiciary that is protected by the Basic Law, the city’s mini-Constitution.
IMPACT ON IMPARTIALITY
It is an act to import political elements into the judicial system, which is supposed to be impartial.
MS ANGELINE CHAN, a solicitor and convenor of the Progressive Lawyers Group.
A Reuters special report in April revealed that some of the city’s most senior judges privately feared the rule of law was under assault from Beijing.
While pro-Beijing figures have demanded special courts and called for foreign judges – a longstanding tradition in Hong Kong – to be barred from national security cases, the new plan had not surfaced locally.
Ms Angeline Chan, a solicitor and convenor of the Progressive Lawyers Group, said: “It is an act to import political elements into the judicial system, which is supposed to be impartial.” The allocation and rostering of judges is currently handled by senior judges based on legal experience.
Urging that the full proposed law be released as soon as possible, Mr Dykes said: “It raises a lot of questions… God knows how they will be selected.”
Mrs Lam said in a statement late on Saturday that the central government had repeatedly emphasised the law “will not affect the capitalist system in Hong Kong and (its) legal system”.