The author is a law student at the University of Hong Kong
The UK Supreme Court in an unprecedented move issued a statement on Hong Kong’s new security law expressing concerns about its provisions and reservations about Justices of the Supreme Court sitting in the Hong Kong Court of Final Appeal. The President of the Supreme Court Lord Reed is right to be alarmed and worried by the security law, but the effects of the law, especially those on the judiciary, do not, as His Lordship said, “remain to be seen.” One may like to point out provisions of the law regarding the Chief Executive’s power to “enlist” judges to deal with national security cases and the situations where central authorities can exercise jurisdiction over the cases, as well as the actual appointment of some controversial magistrates under the law. These are all very real assaults on judicial independence.
If Lord Reed is anticipating “realer” instances of judicial independence being compromised, which “depend[s] upon how [the law] is applied in practice,” I must draw His Lordship’s and indeed everyone’s attention to Article 65 of the new national security law. Article 65 has attracted less interest than it should. It says “The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.” This either renders the law inapplicable or leads to absurdity. Adjudication inevitably involves interpretation of laws. However, under the national security law, the power of interpretation of its articles belongs solely to the Standing Committee of the National People’s Congress, and Hong Kong courts have no say in this regard. That Hong Kong courts can decide national security cases (Article 45) seems legally impossible. The already limited judicial power left to the constrained Hong Kong courts is finally extinguished. At this juncture, we do not have to naively retain faith in a legal system that is littered with draconian laws and unjust judgments, but we do have to realise the reality confronting us: the national security regime has allowed the Hong Kong courts no judicial role let alone judicial independence.
The principle of judicial independence presupposes the existence of a judiciary which necessarily possesses the power of adjudication. This power covers the usual business of legal interpretation. If a court rules that requesting foreign governments to refuse visits from the Chief Executive amounts to collusion with a foreign country, then the equation made between requesting foreign governments to refuse visits from the Chief Executive and collusion with a foreign country will be an interpretation of Article 29 of the new national security law. The Court of Final Appeal in Town Planning Board v Society for the Protection of the Harbour Ltd declared that “The interpretation of statutes is of course an essential part of the judicial function and is ultimately a matter for the courts.” (para. 28) Denying courts the power to interpret laws means preventing the courts from adjudicating cases and dismantling the institution of judiciary.
We have to ask the supporters of the regime, who insist that judicial independence has been preserved, whether judicial independence is preserved by way of eliminating the judicial power. With the promulgation of the national security law, it seems any last hope of judicial independence is dashed by Article 65, and Lord Reed and other foreign justices can consider not sitting on the bench of the Court of Final Appeal anymore.