Introduction: On July 1, according to the established schedule, the 25th anniversary of Hong Kong's return to the motherland and the inauguration ceremony of the sixth government of the Hong Kong Special Administrative Region were held at the Hong Kong Convention and Exhibition Center. There is no reason to change such a good system as one country, two systems, and it must be adhered to for a long time.” He also raised four points of hope.
Before July 1st, "Hong Kong 01" interviewed Chen Duanhong, a professor at Peking University Law School, to systematically summarize the past 25 years of Hong Kong. The interview was published in four articles, this is the fourth article, focusing on judicial reform.
In Chen Duanhong's view, sometimes legal logic cannot resolve political disputes, and politics has to be returned to politics. Common law can completely surpass 2047.
Hong Kong 01: In the past few years, the relationship between Hong Kong's administration, legislation, and judiciary has sparked a lot of discussion, and the issue of judicial reform has also been raised.
With the finalization of the National Security Law in Hong Kong, people are also very concerned about whether it will affect the common law of Hong Kong, and the connection between civil law and common law.
Chen Duanhong, a professor at Peking University Law School, accepted an exclusive interview with Hong Kong 01, systematically summarizing the 25 years of Hong Kong.
(State Information Office)
Chen Duanhong: Everyone has been talking about judicial reform in recent years.
I believe that the basic principles and basic system of Hong Kong's judiciary will be maintained.
Do you want to reform?
In fact, the court itself also mentioned a lot of reforms in the opening ceremony of the legal year, but of course, it did not make much progress later.
I'm not saying that there is no need to change, but Hong Kong's judicial authority still needs to be stable, and some basic principles and basic systems must be adhered to.
As for the National Security Law, there are some provisions that are different from those in Hong Kong law or common law, such as the bail system and the appointment of judges.
The National Security Law is different from other laws, but it does not negate other laws.
It only applies to national security cases. The National Security Law does not abolish the entire bail system in Hong Kong, nor does it say that judges should be appointed in other cases.
This is determined by the particularity of national security cases and the unique constitutional system of "one country, two systems".
National laws have already stipulated, and localities have to implement them. If they are different from common law, they are not the same. If they are not the same, they are not necessarily wrong or ugly.
You can't say that the common law is beautiful. If you use the common law as the standard to measure the national security law, it is not pleasing to the eye.
There is a connection problem here. In fact, the connection occurs more in the integration of the two places, especially in the cooperation of the Greater Bay Area. Many specific rules, many management, social aspects, and even civil and commercial rules may be When a conflict of laws occurs, legal convergence is required.
No matter whether the jurisdiction is different or the legal system is different, the closer the exchanges between them, the more conflicts will be, but they can basically be resolved internationally.
Inter-regional legal conflicts within a sovereign country will be troublesome, but not unresolvable, it will be a long-term work, and it is difficult to reform all at once.
Hong Kong 01: In your article "On the Constitution as the Fundamental Law and Higher Law of the Country" published in 2008, you said that politics belongs to politics, and law belongs to law.
Back to real politics, can law and politics be separated?
Regarding the general requirement of patriots governing Hong Kong, how do you understand the patriotism of judges, especially foreign judges?
Chen Duanhong:
At the judicial level, it is necessary to separate law and politics as much as possible. Judgments must respect the law and reason according to the logic of the law, so that the judiciary will have independence and authority.
But every judge is a member of the political society, or lives in the political society of Hong Kong. Hong Kong foreign judges are also Hong Kong residents.
As someone who lives in Hong Kong, it is impossible for him to have no views on politics.
A judge cannot bring personal and political factors into the judgment.
Improving the electoral system and implementing patriotic governance of Hong Kong have become important measures taken by the central government to bring things right after the turmoil over the amendments.
(China News Agency)
As for the issue of judges' patriotism, it is necessary to distinguish between foreign judges and judges with Chinese nationality.
For foreign judges, it is indeed inappropriate to mention patriotism, and it is impossible for Hong Kong to get rid of all foreign judges, which is not conducive to the development of common law.
Hong Kong's common law tributaries rely on external water sources and require a lot of "drinking" (citing) foreign precedents. Therefore, an appropriate number of foreign judges is a necessary condition for maintaining the rule of law in Hong Kong.
When a person in the United States was nominated as a federal court judge, someone found that he liked to refer to foreign precedents when he was a scholar, and asked him: As a judge in the future, will you refer to a large number of foreign precedents and influence the United States law?
I think this person should envy those Commonwealth judges who came to Hong Kong after retirement to serve as non-permanent judges.
Hong Kong 01: After the implementation of the national security law in Hong Kong, there have been some disputes in Hong Kong society over the principle of "politics belong to politics, and laws belong to law". In addition, some national security cases cannot be heard publicly due to secrets and other reasons, causing confusion and worry among people. Worry about whether politics and law are mixed together, or some cases are themselves a political prosecution.
Chen Duanhong:
"Politics belongs to politics, and law belongs to law" is an ideal state.
The reason for emphasizing this is because the Hong Kong opposition is accustomed to three-pronged tactics: the streets, the parliament, and the courts. Often the final fight goes to the court, and the government needs to provide legal aid to support them in the fight, and politicize the judiciary through political judiciary. .
In fact, in the constitution and basic cases, it is difficult to distinguish between politics and law. The so-called review of unconstitutionality is to transform social moral disputes, policies and political disputes into constitutional issues, and try to solve them with legal logic.
Sometimes, you will find that legal logic cannot resolve political disputes, and politics must be returned to politics.
In essence, the national security case is a direct political attack on the country. It makes no sense to say that it has nothing to do with politics.
However, it cannot be said that national security cases do not require the rule of law.
As for what you mentioned in the trial of national security cases, there are some things that cannot be disclosed based on the basis. I don't know the situation very well, and I don't study criminal law and criminal procedure law, so it is not suitable to comment.
From a constitutional point of view, this involves the balance between national interests and the defendant's due process rights.
Hong Kong 01: When the former Chief Justice of the Court of Final Appeal, Ma Daoli, recently talked about his views on the rule of law and the future of the legal system in Hong Kong, he frankly said that he has confidence in the legal system of Hong Kong and believes that the common law can go beyond 2047.
However, there are still many voices worried about whether the common law can cross 2047.
What do you think for this?
The former Chief Justice of the Court of Final Appeal, Geoffrey Ma, said in an interview that he has confidence in Hong Kong's legal system and believes that the common law system can go beyond 2047 (photo by Li Zetong)
Chen Duanhong:
I personally see it this way: First, from the perspective of the composition of Hong Kong law, the common law is very important.
So, will the common law shrink by 2047?
Comparing common law to a river, if 2047 gradually dries up and runs out of water, it would be meaningless to keep it or not.
So I think the premise of the judgment is what will happen to the current of Hong Kong's common law before 2047.
I believe that the common law in Hong Kong will not cease to flow before 2047, and it will still have sufficient vitality as a whole.
Second, if before 2047, the common law flow in Hong Kong is sufficient, will you force it to be cut off?
If you don't let it flow and stop the water, you have to replace it, right?
Otherwise, Hong Kong will become a desert under the rule of law.
Third, from the perspective of national development, is there a benefit or a disadvantage in keeping the water source and flow of the common law in Hong Kong?
I think the pros outweigh the cons.
There is no harm at all, and I don't want to talk about it like that, but in general, it is good for the country to let Hong Kong continue to practice common law. Why?
Because the rules of international trade in this world are dominated by English and common law.
With Hong Kong as a channel, as a living and practical common law base, why not keep it?
Hong Kong 01: Yes, whether the common law can cross 2047 is actually a question of what to do after 50 years of "one country, two systems". Although the central government has repeatedly emphasized that "one country, two systems" will not be shaken, "one country, two systems" is a good system, but in the international arena The degree of recognition is not high. Because of the big and small incidents in Hong Kong in the past few years, people are also more pessimistic and lack a basic consensus.
Chen Duanhong:
It is difficult to balance international identity, Hong Kong identity, and national identity. Why?
Because there are conflicts of interest between countries, there are conflicts of interest between regions, and there are conflicts of interest between people and people. There is no society that will never be conflict-free, let alone an international society that will never be conflict-free.
In this sense, especially in the current international landscape, it is not easy for "one country, two systems" to succeed. Countries such as the United States and the United Kingdom will trouble you because they want to smear you or even fabricate things for their own interests. , engage in cognitive warfare.
This is one aspect.
But on the other hand, I think basic agreement or basic consensus can be found.
As long as two conditions are met, there is no need to worry about failing to reach a consensus: first, there should be no problem with Hong Kong's stability; second, there is money to be made in Hong Kong, which is the prosperity and stability of the Basic Law.
This place is prosperous and stable, and international capital comes to Hong Kong to make money. If you can make money, you must say that "one country, two systems" is a good system.
Past practice has also proved this truth.
In the 2019 annual Hong Kong policy report of the United States, the overall attitude towards the practice of "one country, two systems" in Hong Kong is positive.
Why?
Because the US makes a lot of money from Hong Kong.
In recent years, the United Kingdom, the United States, and the European Union have accused the "one country, two systems" of not doing well, but there is still a logical premise: "One country, two systems" itself is still good.
This is consensus.
No one will say you didn't do bad things well.
Therefore, all the criticisms and accusations are actually affirming that "one country, two systems" is a good system. This is a premise.
I think as long as Hong Kong does not cause trouble for itself and continues to maintain its status as an international financial center, the outside world will not judge you badly. Even if you say some bad things verbally, you will actually agree with it in your heart.
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