While I highly regard Judge Jonathan Sumption’s intellect and legal acumen, I respectfully disagree with his views expressed in a recent article in the Financial Times. His accusation that the National Security Law for Hong Kong (NSL) restricts the judges’ “freedom of action” must be viewed from a nuanced perspective, especially because he made such an assertion from his standpoint as a British judge. It is worth noting that the United Kingdom introduced its National Security Act in 2023, which has raised concerns about potential infringements on liberties and human rights.
Its provisions, particularly those related to espionage, foreign interference and investigation measures, have raised concerns among legal scholars and human rights experts about the potential impact on judicial independence and the suspects’ right to a fair trial. Therefore, when discussing the restriction of judges’ “freedom of action”, a comprehensive analysis should consider the complexities of judicial independence; recognizing and understanding these nuances is crucial for thoroughly examining the subject matter.
First, it’s crucial to recognize that the NSL was enacted in response to specific threats to national security and stability in the Hong Kong Special Administrative Region. Similarly, the UK National Security Act was introduced to cope with its own security challenges. Despite their differences, both pieces of legislation share a common goal of addressing security concerns, albeit in distinct ways.
A noteworthy point to consider is that the UK National Security Act has raised concerns regarding accountability, transparency and the potential for misuse due to the broad and discretionary powers granted to government bodies. These concerns challenge the notion that UK legislation is inherently more liberal than the NSL. Conversely, the NSL, tailored to safeguard national security within its specific context, grants judges the freedom to apply the law while considering each case’s unique circumstances.
This highlights the significance of judicial discretion, a fundamental aspect of any legal system, including those addressing national security matters. Therefore, Sumption’s accusation of restricting judges’ “freedom of action” is deemed inappropriate and incorrect, as it fails to recognize the nuanced and context-specific nature of the NSL and its alignment with the principles of judicial freedom and discretion.
I appreciate Sumption’s contribution to Hong Kong as his insights have enriched the understanding of this complex jurisdiction. However, he should have refrained from making unsubstantiated accusations against our legal system and government
When considering the assertion that judges in Hong Kong are aware of the possibility that their decisions could be overturned through an interpretation by the Standing Committee of the National People’s Congress (NPCSC), it is crucial to underscore the role and significance of the NPCSC in law interpretation. The power granted to the NPCSC under the Basic Law serves as a constitutional mechanism designed to ensure the consistent application of the law and maintain the overall constitutional order.
A comprehensive understanding of these mechanisms is essential for a thorough comprehension of the intricate legal and political dynamics in Hong Kong. Recognizing the NPCSC’s role in interpreting the law provides valuable insights into the broader context of judicial decisions, highlighting the need for consistency in legal application within the constitutional framework.
It is essential to acknowledge that constitutional interpretation is a common practice in legal systems worldwide, serving as a mechanism for resolving legal uncertainties and promoting the harmonious application of the law. In the case of Hong Kong, the Basic Law explicitly empowers the NPCSC to interpret provisions in the Basic Law whenever controversies arise over the legislative intent of the provisions concerned.
While it is true that an interpretation has the potential to reverse a court’s decision, it is crucial to emphasize that this power is exercised within the defined scope of the Basic Law. The interpretations by the NPCSC should be guided by principles of fairness, justice and the rule of law. It is worth noting that the Basic Law establishes an independent Judiciary in Hong Kong, with judges expected to apply the law without interference and impartially.
When examining the dynamics surrounding judicial independence and freedom of speech in Hong Kong, it is paramount to acknowledge the existence of diverse viewpoints and opinions within society, including those aligned with the government’s position. This breadth of perspectives indicates the fundamental right to freedom of speech. In considering the concept of “judicial patriotism”, it is crucial to understand it as a commitment to upholding the core values and legal framework that contribute to the stability and development of the nation rather than compromising the independence of judges or their ability to render impartial decisions based on the law.
The independence of the Judiciary stands as a cornerstone of Hong Kong’s legal system, and any perception of undue influence can erode public confidence in the administration of justice. Safeguarding the impartiality of judges and shielding them from external pressure is essential to upholding the rule of law. This ensures that judges can make decisions based solely on the merits of each case, unaffected by extraneous factors. Judges can fulfill their duties while remaining impartial and independent, ensuring that their decisions are rooted in legal principles rather than influenced by external forces.
I appreciate Sumption’s contribution to Hong Kong as his insights have enriched the understanding of this complex jurisdiction. However, he should have refrained from making unsubstantiated accusations against our legal system and government. Constructive engagement and dialogue, grounded in evidence and a comprehensive understanding of the context, are imperative for addressing concerns and effecting positive change.
The author is a solicitor, a GBA lawyer, and a China-appointed attesting officer.
The views do not necessarily reflect those of China Daily.
