Political situation
Written by: Wen Weiguang
2020-07-06 13:53
Date of last update: 2020-07-06 13:54Before the National People's Congress Standing Committee passed the draft "Hong Kong version of the National Security Law" at the end of last month, the former chief judge of the Court of Final Appeal, Li Guoneng, once issued a document questioning that the Chief Executive appointed a judge to try the Guoan case to jeopardize Hong Kong's judicial independence.
Xu Ze, chairman of the National Hong Kong and Macao Studies Association and former deputy director of the Hong Kong and Macao Office, wrote an article today (6th) to refute that the political system of the SAR provided for in the Basic Law is an executive-led system with the Chief Executive as the core, not "three separate powers", and appointed a judge It is an important power given to the Chief Executive by the Hong Kong Basic Law, and the relevant arrangements will not undermine judicial independence.
The first Chief Justice of the Court of Final Appeal after the return of Hong Kong, Li Guoneng. (GettyImages)
Called Hong Kong non-bank "separation of three powers"
Xu Ze wrote an article titled "Is the Chief Executive Appointing Judges to Trial National Security Cases "Damage Hong Kong's Judicial Independence"?", writing that the Chief Executive is not only the head of the executive body, but also the head of the SAR. The responsibility he determines determines the Chief Executive's responsibility The first person responsible for the implementation of the Basic Law in the Special Administrative Region shall include the appointment of judges.
Xu Ze pointed out that Li Guoneng established the constitutional jurisdiction of the Hong Kong courts through jurisprudence, that is, the unconstitutional review power, and strived to create "judicial dominance" and "judicial supremacy". He simply regarded the Chief Executive as the chief of the executive authority. He expressed the view that the Chief Executive’s appointment of judges is an administrative intervention in the judiciary, which impairs judicial independence. Xu Ze criticized that this is a long-standing misunderstanding of the political system of the SAR in Hong Kong society, "that is, the main reason for distorting the executive-led system with the Chief Executive as the core of the "three-power separation" system."
Xu Ze, President of the National Hong Kong and Macao Research Association. (Hong Kong and Macau Research Association)
Hong Kong version of the National Security Law｜Li Guoneng: Chief Executive appointed judges, the central government has jurisdiction to undermine judicial independence
Xu Ze: The Chief Executive's appointment of judges is substantive
Xu Ze also pointed out that the power of appointment or non-appointment of judges rests with the Chief Executive. This power is substantive, not procedural, and the independent committee under Article 88 of the Basic Law has the power to make recommendations. The appointment decision is made on the committee’s recommendation list, and the right of recommendation cannot be interpreted as the right of decision. The Chief Executive has the right not to accept the recommendation made by the committee and request it to be re-recommended until the Chief Executive accepts and makes an appointment. The National Security Law stipulates that the Chief Executive may designate a judge to hear a National Security case before appointing the SAR State Security Committee and the Chief Judge of the Court of Final Appeal. The provisions of the Basic Law are legally consistent and are within the scope of the Chief Executive’s powers and responsibilities matter."
He pointed out that before the Chief Executive appoints a judge, he still needs to consult the Chief Judge of the Court of Final Appeal. "This further reflects the legislative spirit of the National Security Law to respect and maintain the judicial system of the Special Administrative Region. Therefore, Justice Li's concerns may not be necessary."
The National Security Law came into effect on June 30, and the appointment of judges has attracted attention. (Profile picture)
Xu: The Basic Law does not give Hong Kong courts "constitutional jurisdiction"
As for judicial independence, Xu Ze believes that this refers to judges trying cases independently, without interference from any individual or institution, and the performance of judicial officers by law is not investigated, but the judicial institution does not have the right to refuse to come from other parties. The legal constraints of the judiciary cannot be turned into an independent kingdom by itself. "How the judiciary is formed is not a matter for the judiciary to decide on its own. It is an example of the appointment of judges belonging to the Chief Executive. This is more important. Yes, although the Basic Law gives Hong Kong the power of final adjudication, its judiciary is still just a local judiciary."
Xu Ze emphasized that judicial independence is by no means "judicial dominance", nor is it "judicial supremacy", "turning through the Basic Law, I can't find the Basic Law is the basis of Hong Kong's "small constitution", nor does it give Hong Kong courts a "constitution" According to the provisions of "sexual jurisdiction", Chief Justice Li is the "leader" of the legal and judicial circles in Hong Kong. He should know that words must be justified before he can be right."
Xu Ze pointed out at the end of the article that the reason why Li Guoneng and his responders made some violations of the "Basic Law" is "presumably because they never fully and accurately understood that the constitutional order of "one country, two systems" is based on the constitution and the Basic Law. The "Constitutional Foundation" calls on the other party to clarify the relationship between the Constitution and the Basic Law. "This is the basic skill that everyone who intends to use Hong Kong as their home and build a new home in Hong Kong, especially those who hold public power and hold important positions. "
Hong Kong and Macao Office