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Wednesday, July 08, 2020, 10:13
National security judge selection system is proper
By Grenville Cross
Wednesday, July 08, 2020, 10:13 By Grenville Cross

Under the National Security Law, the chief executive is required to designate a number of judges, from all levels of court, “to handle cases concerning offences endangering national security” (Article 44). Before making a designation, she may consult the Committee for Safeguarding National Security, as well as the chief justice, and this can be done expeditiously. Indeed, whereas the law was enacted on June 30, the first batch of six judicial officers, all magistrates, was appointed on July 3, to handle the initial arrest cases.

Although some people have questioned the propriety of this arrangement, this is misconceived, and smacks of criticism for criticism’s sake. Every designated judge will come from existing judicial ranks, and will already have established his or her credentials. Under the Basic Law (Art 88), the chief executive appoints judges on the recommendation of an independent commission, the Judicial Officers Recommendation Committee, chaired by the chief justice. The Basic Law further stipulates that judges and other members of the judiciary shall be “chosen on the basis of their judicial and professional qualities” (Art 92). 

The JORC has itself particularized the qualities required for judicial appointment. These include honesty, integrity, industry, independence and intellectual capacity, outstanding competence as a lawyer and professional excellence, mastery of facts and law, vision, drive and leadership qualities, and an ability to work with others and command respect. Once, therefore, a judge has passed through all these processes, he or she will be qualified to undertake whatever cases are assigned, although some judges will obviously be more able than others.  

Quite clearly, therefore, judges are selected without regard to politics, and on the basis of their character. When judges are, as here, selected by an independent mechanism, it helps to promote respect for judicial authority. All judges designated to handle National Security Law cases will have been carefully vetted by the JORC before they were first appointed to the judiciary.

Sometimes judges are chosen to handle specialized legal areas. ... There is certainly nothing new in choosing “horses for courses”, and if the chief executive, having consulted the chief justice, selects particular judicial officers to handle national security cases, because of their track record in conducting criminal cases, then there can be no legitimate objections

Upon appointment, moreover, judges have to swear the judicial oath, by which they undertake to “conscientiously, dutifully, in full accordance with the law, honestly and with full integrity, safeguard the law and advance justice without fear or favor” (Section 17, Oaths and Declarations Ordinance, Cap 11). Any judge designated to handle a national security case will, just as in any other case, faithfully adhere to his or her judicial oath in the conduct of the proceedings.

During their careers, judicial officers may be chosen to handle particular types of cases, as where a particular expertise is required. Some judges, for example, invariably handle criminal cases, and are not usually selected to try other matters. Sometimes judges are chosen to handle specialized legal areas, such as those involving admiralty issues, family law questions or judicial review. There is certainly nothing new in choosing “horses for courses”, and if the chief executive, having consulted the chief justice, selects particular judicial officers to handle national security cases, because of their track record in conducting criminal cases, then there can be no legitimate objections.

As the Chief Justice, Geoffrey Ma Tao-li explained on July 2, the only criteria for the appointment of designated judges are their judicial and professional qualities and this means that “judges should not be designated on the basis of any political considerations”. Judges of foreign nationality, he noted, are not excluded from being designated judges, and, once the one-year term of a designated judge comes to an end, other suitable judges may then be designated. 

Of course, before a judge can be designated, any legal objections will have to be taken into account, including, said Ma, “any objections based on bias or reasonable perceptions of bias”. If, moreover, as the National Security Law puts it, a judge “has made any statement or behaved in any manner endangering national security” (Art 44), this will be an impediment to an appointment. Once the list of designated judges has been compiled, it will be for the judiciary itself, and not the chief executive, to select which judges should handle which cases, as is the usual practice.

These procedures, therefore, are transparent and fair, and nobody should fear for judicial independence. Indeed, the Basic Law states specifically that the courts “shall exercise judicial power independently, free from any interference” (Art 85), and this constitutional guarantee will undoubtedly be fully respected at all times. 

Anyone put on trial will, moreover, only be convicted if the prosecution has proved its case beyond reasonable doubt. As the National Security Law stipulates, “the rights and freedoms” contained in the International Covenant on Civil and Political Rights, which include fair trial guarantees, “shall be protected in accordance with the law” (Art 4). These encompass such things as the presumption of innocence, the right to a proper defense, and the other customary rights of an accused person in a criminal trial (Art 5). 

The new law, therefore, while recognizing that national security must be safeguarded, also acknowledges that the rights of a defendant must also be protected, which is exactly the approach adopted throughout the common law world.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of Hong Kong.

The views do not necessarily reflect those of China Daily. 


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