Hong Kong Judges and National Security Agency under the National Security Law｜Weekly 01

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Written by: Ling Yichen

2020-06-21 19:41

The 19th meeting of the Standing Committee of the 13th National People’s Congress was held in Beijing last week. The meeting for the first time considered the draft of the “Law on the Maintenance of National Security of the Hong Kong Special Administrative Region of the People’s Republic of China” (hereinafter referred to as the “National Security Law of the Port Area”), and was approved by the Standing Committee of the National People’s Congress The person in charge of the Legal Affairs Committee of the Association made an explanation about the draft "National Security Law of Minato City" (hereinafter referred to as the "Explanation"), and mentioned that "this is a comprehensive law with substantive law, procedural law and organizational law." . The content of the draft mainly includes six "clear": clearly stipulate the responsibilities of the central and Hong Kong national security, clearly stipulate the principles of the rule of law that should be followed to maintain national security, clearly stipulate the relevant Hong Kong institutions and their responsibilities, and clearly stipulate crimes and penalties that endanger national security , Clearly stipulate the jurisdiction of the case, the application of laws and procedures, and clearly stipulate the power and responsibility of the central stationed in Hong Kong to maintain the national security agency, which naturally includes the requirements for Hong Kong judges, and explained that the central government will establish a new agency in Hong Kong-maintenance National Security Agency (hereinafter referred to as "National Security Agency").

The "Explanation" stated that one of the guiding ideologies for drafting the "National Security Law in the Minato District" is to "provide a strong constitutional basis and laws for advancing the establishment of relevant institutional mechanisms for safeguarding the national security of the Hong Kong Special Administrative Region and strengthening the judicial work of the Hong Kong Special Administrative Region for safeguarding national security." "The basis", and the beginning of the draft also reaffirmed that the Hong Kong judiciary "should effectively prevent, stop and punish acts and activities that endanger national security in accordance with the relevant laws and regulations", "should effectively implement this law and relevant laws of the Hong Kong Special Administrative Region to prevent and stop And punish regulations that endanger national security and effectively maintain national security."

As for the specific provisions on the judicial procedures for the trial of crimes against national security, they are: "The Chief Executive of the Hong Kong Special Administrative Region shall select the current or qualified former magistrate, the District Court Judge, the High Court Court of First Instance Judge, the Court of Appeal Judge and the The judges of the Court of Final Appeal appoint a number of judges, and may also appoint judges from temporary or special committee judges to handle crimes against national security."

When the Chief Executive appoints candidates for the trial of Guoan cases, he should consult the Judicial Officers Recommendation Committee composed of the Secretary of Justice, judges and barristers. (Profile picture / photo by Li Zetong)

There are current precedents for designating candidates

The above provisions should refer to the Chief Executive designating a group of candidates suitable for hearing crimes against national security from the current, former, temporary, or special committee judges at all levels of courts, rather than directly selecting a presiding judge for individual crimes against national security. . At first glance, this arrangement may seem to infringe on the independent judicial power provided by Hong Kong under Articles 2 and 19 of the Basic Law, and the “Independent Judgment of the Court of the Hong Kong Special Administrative Region” provided by Article 85 ( exercise judicial power) without any interference", but it should be noted that Article 48 and Article 88 of the Basic Law respectively stipulate that "the appointment and removal of judges at all levels of courts in accordance with legal procedures" is one of the powers of the Chief Executive, "Hong Kong Judges in special administrative district courts...appointed by the Chief Executive", and the scope of pre-limiting judges for certain types of cases has not entered the case trial process and is still in the category of "appointment" beforehand, so it cannot be pretended to be regarded as the Chief Executive interfering in the exercise of the courts of Hong Kong Its judicial power.

Under the current mechanism in Hong Kong, it is not unprecedented for the Chief Executive to appoint individual judges to deal exclusively with certain types of cases. Taking the judicial officers appointed in the past year as an example, the current Chief Executive, Lin Zhengyue, appointed the District Court Judge Chen Zhenguo as the Chief Family Court Judge in January 2019, and appointed the Court of First Instance Judge Lin Yunhao of the High Court as the Competition Affairs Judge in July of the same year. Ouyang Guiru, Chief Judge of the Tribunal and Judge of the Court of First Instance of the High Court, is the Deputy Chief Judge of the Competition Tribunal. The Chief Family Court Judge is the District Court Family Court that handles marriage cases such as divorce, alimony, custody and adoption of children. The Chief Judge and Deputy Chief Judge of the Competition Tribunal deal with anti-competitive behavior, abuse of market power, and weakening competition The merger and other cases of the Competition Tribunal, so these appointments have actually played a role in limiting the scope of judges in certain types of cases. The provisions of the Minato National Security Act on the Chief Executive’s appointment of trial judges are essentially in line with them. There is not much difference.

The Chief Executive, Lin Zhengyue, appointed the District Court Judge Chen Zhenguo as the Chief Family Court Judge in January 2019. In July of the same year, he appointed the Court of First Instance of the High Court Lin Yunhao as the Chief Judge of the Competition Tribunal and the Court of First Instance of the High Court Ouyang Gui In the case of the Deputy Chief Judge of the Competition Tribunal. (Profile picture)

Respect for the Independent Judicial Advisory Committee

However, the practice of the Chief Executive's designation of judges in criminal cases that endanger national security under the Minato National Security Act always raises doubts about whether Hong Kong can maintain judicial independence. The Chief Executive may not be familiar with the judiciary and legal affairs, and it is absolutely not feasible to judge who is suitable for handling related cases by himself or herself; moreover, Article 88 of the Basic Law mentions that the Chief Executive’s appointment of judges must be "based on local judges and the legal profession. Recommended by an independent committee composed of celebrities and other well-known persons." This committee is a judicial personnel recommendation committee composed of the Secretary of Justice, the Chief Judge and Judge of the Court of Final Appeal, barristers, lawyers and representatives of laypersons. Operational needs, or compliance with the requirements of the Basic Law, the Chief Executive’s future designation of judges for the trial of crimes against national security should continue to seek the opinions and suggestions of the Judicial Officers Recommendation Commission to consolidate everyone’s confidence in the judicial independence of Hong Kong.

Article 6 of the Judicial Officers Recommendation Commission Regulations provides that the functions of the committee are to "fill judicial vacancies", "judicial officers' representations of conditions of service", "affect judicial officers and may be prescribed or may be made by the Chief Executive" "Any matter referred to the committee" provides advice or recommendations to the Chief Executive. Candidates for trial of crimes against national security can be regarded as the third kind of matter.

At the same time, Article 13 also stipulates that the Chief Executive in Council may stipulate "the performance of additional functions by the Committee" through regulations. It is just that since such cases need to be delineated and dealt with by candidates, in the long run, Hong Kong should still refer to the precedents of the Family Court and Competition Tribunal of the aforementioned District Court, first establish a special national security court within the Judiciary, and then formally submit to the Legislative Council Proposed a bill to amend the "Judicial Officers Recommendation Committee Regulations" and the contents of its "Judicial Position" schedule to form a sticking mechanism, so that the members of the committee can recommend judges according to law in the future, and then let the chief executive responsible to the central government make a final decision.

Not long ago, the relationship between the Liaison Office and Article 22 of the Basic Law caused controversy. (Profile picture)

Clarify the role of the Office to avoid recurring disputes

Another noteworthy aspect of the draft "National Security Act of the Port Area" is the arrangement of the Central Security Office in Hong Kong. The "Note" calls it "the Central People's Government in the Hong Kong Special Administrative Region to maintain the National Security Agency", and then says "The Central People's Government establishes the National Security Agency in the Hong Kong Special Administrative Region." This expression is easily reminiscent of the Central People's Government not long ago. Disputes between the People’s Government’s Liaison Office in the Hong Kong Special Administrative Region and Article 22 of the Basic Law. The article stipulates: "None of the departments, provinces, autonomous regions, and municipalities directly under the Central People's Government shall interfere in the affairs of the Hong Kong Special Administrative Region under its own administration. If the central departments, provinces, autonomous regions, and municipalities need to establish an organization in the Hong Kong Special Administrative Region, they must With the consent of the Government of the Hong Kong Special Administrative Region and the approval of the Central People's Government. All agencies and personnel of the central government departments, provinces, autonomous regions and municipalities established in the Hong Kong Special Administrative Region must abide by the laws of the Hong Kong Special Administrative Region."

After the return from Hong Kong, all the officials of the SAR Government did not understand that the Central Liaison Office, which is an agency of the State Council, is neither a department of the Central People’s Government nor an agency established by the Central Department in Hong Kong. This has led to repeated contradictions over the years. Ambiguous, and made a joke about the "Three Changes" draft two months ago. Now, the "National Security Act of the Hong Kong District" has established a new National Security Office in Hong Kong. Its relationship with Article 22 of the Basic Law will undoubtedly become the focus of the public in the future. Hong Kong government officials must learn the lessons of the last dispute between the Central Liaison Office and carefully Learn and explain to the public all relevant issues, including: whether the maintenance of national security in Hong Kong falls within the scope of centrally managed national defense, whether the National Security Agency stationed in Hong Kong is established by the Ministry of National Security as a department of the State Council, and whether the SAR government has approved the central government to come to Hong Kong The establishment of the National Security Agency, etc., don’t cause another dispute around the central government station in Hong Kong. They just consume them so much that they can no longer manage their prestige.

Regardless of whether the National Security Agency under the "Port Area National Security Law" is related to Article 22 of the Basic Law, the mainland personnel belonging to it obviously need to comply with the same as other central resident agencies in Hong Kong, such as the Central Liaison Office, the Ministry of Foreign Affairs Special Commissioner’s Office in Hong Kong Local law.

The National Security Office may consider the requirements of the People's Liberation Army in Hong Kong with reference to the Law of the People's Republic of China on the Garrison of the Hong Kong Special Administrative Region. The picture shows the open day of the Shigang Barracks. (Profile picture)

Restrict Hong Kong personnel to strictly abide by local laws

In fact, the focus of Hong Kong society on these organizations has always been whether the people stationed in Hong Kong are subject to local laws. The "Note" mentions that the draft "National Security Law of the Port Area" stipulates that the National Security Office only intervenes in the jurisdiction of Hong Kong in "special circumstances". During this period, it is necessary to "handle crimes against national security according to law", and "the National Security Office in Hong Kong should strictly perform according to law. Responsibilities, accept supervision in accordance with the law, and must not infringe on the legitimate rights and interests of any individual or organization. In addition to complying with national laws, the personnel of the National Security Agency in Hong Kong should also abide by the laws of the Hong Kong Special Administrative Region." Worry, but if the provisions are really only these short principles, I am afraid that it may not be completely reassuring.

In order to achieve this goal, the National Security Office may consider the requirements of the People's Liberation Army in Hong Kong with reference to the Law of the People's Republic of China on the Garrison of the Hong Kong Special Administrative Region. In addition to abiding by the law, acting in accordance with the law, and not infringing on the rights and interests of Hong Kong people, the Garrison Law further stipulates that Hong Kong garrisons "may not engage in profit-making business activities in any form...and shall not engage in any other activities that are disproportionate to the duties of military personnel." And "The non-execution of Hong Kong garrison personnel, violations of the personal and property rights of Hong Kong residents and others outside the Hong Kong garrison, and other violations of the laws of the Hong Kong Special Administrative Region constitute crimes, which are under the jurisdiction of the courts of the Hong Kong Special Administrative Region and relevant law enforcement agencies." In view of the special role and power of law enforcement personnel in Hong Kong, the public expects to see that the "National Security Act of the Port Area" imposes similar restrictions on the personnel of the National Security Agency in Hong Kong, so that the Office can be believed to have not violated the Basic Law and "One Country, Two Systems" system.

【Minato-guchi National Security Law】Hong Kong is responsible for law enforcement and interrogation to reflect the differences between the two systems

[Minato National Security Act] The Hong Kong Government will hold the chief executive of the Legislative Council with heavy responsibility for "one country, two systems"

[Hong Kong version of the National Security Law] "Collision" speaks its own words Hong Kong does not understand the legal system of the Mainland

Hong Kong version of the National Security Law｜An article detailing the six legislative principles-the People's Congress connects Hong Kong's "harmonic agent"

The above excerpt is from the 219th issue of "Hong Kong 01" Weekly News (June 22, 2020) "Hong Kong Judges and National Security Office under the National Security Law".

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