Hong Kong judges should seek to apply Chinese legal traditions while reviewing security cases, an adviser to the country’s legislature said, in the latest sign of changes coming to the former British colony’s courts.
Local judges need to take Chinese law into account when trying cases stemming from the national security legislation imposed two weeks ago by Beijing, said Han Dayuan, a member of the parliamentary committee that overseas Hong Kong law. Judges must have a grasp of how the mainland’s system operates to “understand how a national law should be implemented,” Han said in an interview Tuesday with Bloomberg News.
Han’s comments illustrate how the National Security Law is fundamentally changing the administration of justice in Hong Kong, which was promised autonomy under a “one country, two systems” framework before returning to Chinese rule in 1997. Besides preserving Hong Kong’s civil rights, common law and capitalist financial system, the handover agreement guaranteed that local courts would be able to “exercise judicial power independently, free from any interference.”
The courts work very differently on the mainland, which is based on continental European systems that favor civil codes over judicial interpretation. Moreover, all police, prosecutors and courts are answerable to the ruling Communist Party and ultimately President Xi Jinping. China’s top judge once dismissed the concepts of separation of powers and judicial independence as “erroneous Western notions.”
The national security legislation handed down by the National People’s Congress on June 30 not only borrowed sweeping language from Chinese laws, it gave the parliament power to interpret its meaning. The law for the first time gave Hong Kong Chief Executive Carrie Lam, a Beijing appointee, the power to designate a pool of judges to hear cases, as opposed to the courts.
Han, who’s also a professor of constitutional law at Renmin University of China Law School, acknowledged that some terms — such as “inciting,” “seriously interfering in” and “disrupting” — may be hard for Hong Kong legal professionals to comprehend since they require a grasp of “relevant mainland laws.” Still, he said local judges would continue to exercise independence.
“Referencing diversified laws and regulations will assist their judgments, but the judges can remain independent while reviewing individual cases,” Han said. He argued that local judges already have experience applying concepts from other continental legal systems, such as cases related to rulings from the European Court of Human Rights.
While Chinese officials have touted the National Security Law as a “sword of Damocles” hanging over Beijing’s harshest critics, democracy activists, business groups and lawyers have denounced the legislation as overly broad and difficult to apply. The Hong Kong Bar Association said in a July 1 statement that it was “gravely concerned with both the contents of the NSL and the manner of its introduction.”
Hong Kong Chief Justice Geoffrey Ma affirmed in a statement after the law’s passage that judicial independence and the rule of law were “cornerstones of the Hong Kong community.” “It remains the mission and the constitutional duty of the Hong Kong judiciary to maintain and protect them,” Ma said.
In the interview Tuesday, Han also revealed that discussions on ways to build a law enforcement mechanism to safeguard national security in Hong Kong had begun by at least April 2019, weeks before the city was gripped by a historic wave of protests. The unrest only accelerated the process, Han said.
However, Han said that the coronavirus outbreak delayed implementation of the law by forcing China to postpone annual legislative sessions originally planned for March. The National People’s Congress didn’t end up formally deciding to draft the legislation until the body finally met in late May.
— With assistance by Lucille Liu, Jing Li, and Colin Keatinge
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