Independent judiciary key to rule of law in Hong Kong

Hong Kong has an independent judiciary that protects the rights of citizens, provides a level playing field for litigants and ensures fair trials. While judicial independence was simply a convention before 1997, it is now specifically guaranteed by the Basic Law of Hong Kong, the special administrative region's de facto "mini-constitution".

Upon appointment, every judge swears the judicial oath, to "safeguard the law and administer justice without fear or favor, self-interest or deceit".

Under the Basic Law, the chief executive appoints judges on the recommendation of an independent body, the Judicial Officers Recommendation Committee, which is chaired by the chief justice. Judges are chosen on the basis of what the Basic Law calls "their judicial and professional qualities". Whereas most judges are permanent residents, 10 eminent overseas judges from Australia, Canada and the United Kingdom currently serve as nonpermanent judges of the Court of Final Appeal.

At all times, the judiciary operates independently, and on June 15, the Hong Kong SAR's first chief justice, the now retired Andrew Li Kwok-nang, while discussing the SAR's first 25 years, said, "I can state that during this period there has been no instance of interference with how a judge should adjudicate, and there has been no instance of interference with the process of judicial appointment".

On June 16, Canada's former chief justice, Beverley McLachlin, who became a nonpermanent judge of the Court of Final Appeal in 2018, said, "the court is completely independent and functioning in the way I was used to in Canada", adding that "there's no governmental influence, and, if there were, I wouldn't be there".

Although two overseas judges resigned as nonpermanent judges of the Court of Final Appeal in March over the National Security Law, 10 others did not, and Britain's Jonathan Sumption, who joined the court in 2019, has said that the National Security Law "guarantees human rights", a reference to its Article 4, which incorporates the International Covenant on Civil and Political Rights. He also said that the overseas judges will "serve the cause of justice better by participating in the work of Hong Kong's courts".

The National Security Law's Article 44 requires the chief executive to designate judges "to handle cases concerning offense endangering national security", and some claim this precautionary measure means that only judges who will convict suspects are designated. However, this is untenable and, on Jan 24, Chief Justice Andrew Cheung Kui-nung, explained that judicial independence "exists as a fact" and has not been affected by the National Security Law.

Once judges are designated by the chief executive, in consultation with the chief justice, the judiciary then decides who does which case, not the chief executive. Those judges designated come from the existing judiciary, where they will have proved their worth.

Once designated, judges remain true to their judicial oath and administer justice "without fear or favor", just as they do in every criminal case. As Cheung said, this means that "there is no question of the impartiality of our courts being affected by this special arrangement under Article 44".

Although very few national security cases have been determined so far, they have all been handled by professional judges in accordance with established common law procedures. The traditional rights of defendants have been respected, with fair trials ensured. As Cheung emphasized, the "Hong Kong judiciary is committed to maintaining an independent, impartial and efficient judicial system which upholds the rule of law".

Since 1997, the judiciary has not only maintained the rule of law but also applied the International Covenant on Civil and Political Rights. Thus, in the World Justice Project's Rule of Law Index 2021, Hong Kong was ranked 19th out of the 139 jurisdictions surveyed. Its common law legal system is destined to last at least until 2047, and hopefully thereafter.

The author is a senior counsel and professor of law and was previously director of public prosecutions for Hong Kong. The article is his opening statement at a meeting in Geneva, Switzerland, of the United Nations Committee on Human Rights on the International Covenant on Civil and Political Rights.