Judicial independence is alive and well in Hong Kong

Editor’s note: This is a letter from Grenville Cross SC to Mohamed Ezzeldin Abdel-Moneim, Chair, Committee on Economic, Social and Cultural Rights, responding to the UN committee’s “concluding observations” on the third periodic report of China, including its Hong Kong Special Administrative Region. 

Dear Dr Abdel-Moneim,

As somebody who has been intimately involved with the legal system of Hong Kong since 1997, as Director of Public Prosecutions, Senior Counsel and Professor of Law, I feel duty bound to address the concerns that appear in the findings (“concluding observations”) of the Committee on Economic, Social and Cultural Rights (CESCR) on judicial independence in the Hong Kong SAR, released on March 6, 2023.       

A. Introduction

In Part D of the findings, the following paragraphs appear:

“Independence of the judiciary 

100. Noting the information provided during the dialogue with the State party, the Committee is concerned about reports that the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (2020) has de facto abolished the independence of the judiciary of Hong Kong SAR, China. 

101. The Committee urges Hong Kong SAR, China, cooperates with the State party to review the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (2020) to ensure the full independence of the judiciary and to ensure that national security legislation is not arbitrarily used to interfere with it.” 

You will, I hope, be relieved to know that these concerns are illusory, and that judicial independence is alive and well. Since 1997, the HKSAR has fully respected the judicial system in all circumstances, whether or not involving national security. 

As I believe the CESCR is entitled to have a clear understanding of the situation, I will describe the operation of the judicial system in Hong Kong in some detail, as follows:  

B. The Judiciary: Constitutional protections entrenched under the Basic Law of the Hong Kong SAR

Under the Basic Law, which is Hong Kong’s mini-constitution and a national law of China, it is provided: 

a. “The National People’s Congress authorizes the Hong Kong SAR to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law” (Art.2);

b. “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions” (Art.85); and

c. “The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region shall authorize the courts of the Hong Kong SAR to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region” (Art.158).   

Since 1997, the judiciary has operated within the parameters of these constitutional protections, which have helped to secure its position and, thereby, promoted judicial independence in the HKSAR.  

C. Selecting judges: Independent mechanism

The Basic Law provides that judges shall be appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors (Art.88). 

On 1 July 1997, the Judicial Officers Recommendation Commission Ordinance established the Judicial Officers Recommendation Commission (JORC) as the independent commission contemplated by the Basic Law. It consists of the Chief Justice (Chairman), the Secretary for Justice, and seven members appointed by the Chief Executive, including one barrister, one solicitor, two judges, and three persons who are not, in the opinion of the Chief Executive, connected in any way with the practice of law. The Hong Kong Bar Association and the Law Society of Hong Kong are currently represented by, respectively, their Chairman and Immediate Past President.

The functions of the JORC include the filling of vacancies in judicial offices. 

Since 1997, the JORC has discharged its mandate independently, and has identified persons of the highest character for judicial appointment, some from other common law jurisdictions.  Its recommendations have been accepted by the Chief Executive.   

D. Judicial officers: Eligibility for appointment

Under the Basic Law, “Judges and other members of the judiciary of the Hong Kong SAR shall be chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions” (Art.92).

The effect of this is to ensure that only meritorious candidates are considered for judicial appointments. When they are recruited from other common law jurisdictions, as in the case of non-permanent judges of the Hong Kong Court of Final Appeal, they will already have established a high standing in their own countries.  

Since 1997, Hong Kong has been fortunate to have attracted lawyers of the right calibre to the judiciary, and this has been facilitated by recent improvements to the terms of service of judges, including the raising of the retirement age.

E. New judges: Judicial oath 

Under the Basic Law, and upon assuming office, “judges of the courts at all levels and other members of the judiciary in the Hong Kong SAR must, in accordance with law, swear to uphold the Basic Law of the Hong Kong SAR of the People’s Republic of China and swear allegiance to the Hog Kong SAR of the People’s Republic of China” (Art.104).

The judicial oath is contained in the Oaths and Declarations Ordinance and, upon appointment, the judicial officer undertakes to “uphold the Basic Law of the People’s Republic of China, bear allegiance to the Hong Kong SAR of the People’s Republic of China, serve the Hong Kong SAR conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit” (Part V). 

The judicial oath binds judicial officers at all levels, whether they conduct trials or hear appeals, and this is a source of reassurance to anybody involved in judicial proceedings, including criminal suspects.

Since 1997, judges have scrupulously adhered to their judicial oath when handling cases, whether civil or criminal in nature (and including national security trials). As judicial independence is also constitutionally guaranteed, the integrity of trials has been maintained throughout.  

The maintenance of high standards in the courts is dependent upon the judiciary, and this has been central to the thinking of the Region’s three post-1997 chief justices, all determined to ensure that public trust in the courts is maintained. 

On 14 January, 2019, the then Chief Justice, Geoffrey Ma Tao-li, said: “I have earlier mentioned the confidence which I hope the community has in our legal system. This confidence is shared outside Hong Kong. One indication of this is the volume of cases dealt with in our courts. By world standards, the workload of Hong Kong judges is among the heaviest and the most complex. Many persons choose to litigate in the Hong Kong courts precisely because they have confidence in our legal system.”

F. National security cases: Designated judges

Under the National Security Law, the Chief Executive is required to designate judges “to handle cases concerning offences endangering national security” (Art.44). Similar arrangements already exist within the judiciary, and particular judges, according to their expertise, are selected to conduct certain types of cases. Thus, suitably qualified judges are assigned to handle, for example, admiralty, commercial, constitutional, family, and judicial review cases. 

After designation, judges remain true to their judicial oath, and administer justice “without fear or favour,” just as they do in every other criminal trial. Once the Chief Executive, in consultation with the Chief Justice, has designated judges, it is the judiciary itself, and not the Chief Executive, that decides which judge handles which case. Those judges who are designated come from the existing judiciary, where they will already have proved their worth.  

On July 2, 2020, the then Chief Justice, Geoffrey Ma Tao-li, explained that “designated judges, like all judges, are to be appointed on the basis of their judicial and professional qualities. These are the only criteria relevant to the appointment of judges. This therefore means, for example, that judges should not be designated on the basis of any political considerations. This reinforces the principle that in the handling or determination of any legal dispute, only the law and legal principle will be considered.”

It is important, therefore, that the CESCR should be under no illusions over the status of designated judges, whose impartiality is in no way affected by their designations. The designations may be viewed as a precautionary measure, designed to ensure that only judges with impeccable credentials are entrusted with cases that involve something so important as the country’s security and survival, and there can be no legitimate grounds for concern.

On January 24, 2022, moreover, the Chief Justice, Andrew Cheung Kui-nung, explained that judicial independence “exists as a fact,” and has not been affected by the National Security Law. He added “there is no question of the impartiality of our courts being affected by the special arrangement under Article 44”.

If the CESCR can be made aware of this, I feel sure it will help to allay any concerns it may have over the impact of the national security legislation on the independence of the judiciary.

G. Judicial independence: Judges speak out

On June 15, 2022, when Hong Kong’s first post-1997 Chief Justice, Andrew Li Kwok-nang, reviewed its first 25 years as a special administrative region of China, he 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, 2022, Canada’s former Chief Justice, Beverly McLachlin, currently a non-permanent judge on the Hong Kong Court of Final Appeal, said “the Court is completely independent and functioning in the way I was used to in Canada”. She then added, “there’s no governmental interference, and, if there were, I wouldn’t be there.”

On September 18, 2021, Australia’s former Chief Justice, Robert French, also a non-permanent judge on the Hong Kong Court of Final Appeal, said: "I have the greatest admiration for the chief justice and other permanent justices of that court and for their commitment to maintaining its judicial independence." He then added “my continuance in office is a reflection of my support for their commitment and my belief in their capacity to give effect to it. I would not continue if I believed otherwise."

You and your colleagues will, I trust, be reassured by the words of Justices Li, McLachlin and French, coming as they did well after the enactment of the National Security Law on June 30, 2020. All three  judges, one local and the other two from overseas, have confirmed that the judiciary remains as independent as ever, and you may agree that it is a  pity this was not reflected in the CESCR’s findings. If there had been any untoward conduct toward the judiciary of the type mentioned in those findings, these judges, sitting at the apex of the legal system.  would obviously have known all about it.

Although, moreover, there have sometimes been claims that judges have faced pressure from official sources, this is baseless, as another Chief Justice, Geoffrey Ma Tao-li, who succeeded Justice Li in 2010, has confirmed. On 9 January, 2017, he said: “There is pressure on our judges, but this is not pressure from outside sources or persons. Hong Kong's judiciary is an independent one which handles cases strictly and only in accordance with the law and the spirit of the law. The pressure, rather, stems of course from the heavy workload faced everyday by our judges. But more than this, the real pressure is for judges to come up with the right outcome.” 

Insofar as judges have faced improper pressures, it has come not from the HKSAR but from those involved in the social disorder of 2019-20, or else from their sympathisers. Whereas the Hong Kong Court of Final Appeal, the High Court and the Magistrates Court were all fire bombed at that time, individual judges and, in some instances, their families, were also harassed, doxxed and threatened. They have, however, all remained true to their oaths of office, and continued to administer justice “without fear or favour,” which, you may agree, is greatly to their credit. 

The HKSAR, for its part, has, through its law enforcement agencies, done everything possible to protect the judiciary and hold the culprits to account. 

H. National Security Law: Human rights prioritized   

Since 1997, the International Covenant on Civil and Political Rights has applied to Hong Kong by virtue of the Basic Law (Art.39). It is also incorporated into the National Security Law, which stipulates not only that “human rights shall be respected and protected in safeguarding national security,” but also that the ICCPR “shall be protected in accordance with the law.” 

Very few, if any, jurisdictions incorporate the ICCPR into their national security legislation, and, by virtue of its positioning, the judges who conduct national security trials have its fair trial guarantees very much at the forefront of their minds.

This was undoubtedly one of the reasons why the UK’s Lord (Jonathan) Sumption, a non-permanent judge of the Hong Kong Court of Final Appeal since 2019, explained in 2021 that the National Security Law “guarantees human rights,” and that overseas judges will “serve the cause of justice better by participating in the work of Hong Kong’s courts.”

When national security suspects face trial, they enjoy exactly the same rights as do their counterparts in other criminal cases. They have the right of defence, the presumption of innocence, and the right to a fair trial presided over by an independent judge (or judges). They can, moreover, only be convicted if guilt has been proved beyond reasonable doubt. If convicted, they enjoy rights of appeal against conviction and sentence, which are pursuable up to the Hong Kong Court of Final Appeal  

There is, therefore, no question, as the CESCR’s findings would have it, of the National Security Law having abolished “de facto” the independence of the judiciary, and the suggestion to the contrary is simply not sustainable.  

Indeed, on January 16, 2023, the current Chief Justice, Andrew Cheung Kui-nung, said: “full acknowledgement is due to our judges who have handled with great professionalism cases attracting public or even international attention in the past few years. Whether as designated judges under the Hong Kong National Security Law or not, they have all faithfully applied the law to the best of their ability, in accordance with the evidence presented before them.”

I. Endangering national security: Mode of trial

The vast majority of criminal trials are conducted by judicial officers sitting alone in the District Court or the Magistrates Court. The more serious cases, however, meaning those that are likely to attract a sentence of imprisonment in excess of 7 years, are transferred to the Court of First Instance of the High Court, where the maximum sentence is life imprisonment.  In the Court of First Instance, the customary mode of trial is trial by jury. 

However, as the Hong Kong Court of Final Appeal confirmed in 2010 (ten years before the enactment of the National Security Law), “it is clear that there is no right to trial by jury in Hong Kong.” Although a jury trial is not excluded in national security cases, circumstances can arise where an alternative means of achieving justice is necessary. 

If, therefore, the Secretary for Justice issues a certificate directing that the accused person should be tried without a jury on the “grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members,” the National Security Law indicates that the case will be tried in “the Court of First Instance without a jury by a panel of three judges” (Art.46).

Although the National Security Law could have provided for a trial by a judge sitting alone in the Court of First Instance, as in the District Court and the Magistrates Court, it chose a 3-judge panel as the preferred alternative, clearly reasoning that three heads are better than one, as in the Court of Appeal.

In those cases where the Secretary for Justice has issued a certificate for a 3-judge trial, it has been done on the basis that the jurors or their families would face threats, and that there was a real risk that a trial by jury could not, in consequence, be fairly conducted. This situation is not unique, and it also arises in other common law jurisdictions, and juries can be dispensed with in similar circumstances in, for example, Australia, Ireland and the United Kingdom. 

However, the Secretary’s decision to issue a certificate is, like any other prosecutorial decision, amenable to judicial review. If, therefore, the Secretary’s decision was taken in bad faith, or it resulted from an unlawful prosecution policy, or was otherwise perverse, it can be challenged in the courts by an aggrieved party, which is a vital safeguard against abuse.

If a national security case is tried by a 3-judge panel instead of by a jury, the accused person enjoys exactly the same right to a fair trial as if he had been tried by a jury, for two principal reasons. Firstly, the Hong Kong Bill of Rights (which domesticates the ICCPR), stipulates that somebody who has been lawfully arrested “shall have the right to a fair trial by judicial organs without delay and shall be presumed innocent until convicted by judicial organs” (Art.87). Secondly, the National Security Law states not only that “human rights shall be respected and protected in safeguarding national security” (Art.4), but also that “the principle of the rule of law shall be adhered to” (Art.5).

In national security trials, whether or not involving juries, independent judges preside, and they ensure that proceedings are fairly conducted, with convictions only resulting if the prosecution has proved the guilt of the accused person to the standard prescribed by law. 

J. Hong Kong Court of Final Appeal: Jurists upholding the rule of law  

The Hong Kong Court of Final Appeal succeeded the Judicial Committee of the Privy Council as the HKSAR’s ultimate appellate tribunal on July 1, 1997. Its judgments have always been of the highest quality, and are cited in other common law jurisdictions. It comprises local and overseas judges who work together to uphold the rule of law, and it commands the trust of the community it serves.

The Court comprises the Chief Justice and three permanent judges, four local judges who hold office as non-permanent judges, and ten overseas judges (soon to be eleven) from other common law jurisdictions who hold appointments as non-permanent judges. The overseas judges currently come from Australia, Canada and the UK, where they enjoy high standing.  They include Canada’s former chief justice, Beverly McLachlin, two former chief justices of Australia, Robert French and Murray Gleeson, and two former presidents of the UK Supreme Court, Lords (Nicholas) Phillips and (David) Neuberger.

The ten overseas jurists are manifestly people of the highest quality, and their assessments of the situation are illuminating. Although they came under renewed pressure in 2022 to resign from the Court over the National Security Law, they refused to do so, for cogent reasons. Whereas Justice McLachlin said the Court was “operating as an independent, judicial branch of government,” her Australian colleagues declared “we do not intend to resign, and we support the judges of the Court of Final Appeal in their commitment to judicial independence.” As for the British judges, their commitment to Hong Kong was no less robust, and they announced that they also would remain in the Court, “defending the rule of law in critical times.”

It is certainly true that two British judges, Lords (Robert) Reed and (Patrick) Hodge, resigned from the Court on March 30, 2022, but, as they were still serving on the UK Supreme Court, they were left with little choice once the then foreign secretary, Liz Truss, declared it was “no longer tenable” for serving British judges to serve on the Court, as it would risk “legitimizing oppression.” Indeed, the former Hong Kong governor, Lord (Chris) Patten (who is also the former chairman of the governing Conservative Party and the current patron of Hong Kong Watch), confirmed, on November 6, 2022, that Truss had told the two judges to leave the Court, adding “I thoroughly disapprove of politicians telling judges what to do” (something the CESCR undoubtedly endorses). 

The real story, therefore, is not only that two non-permanent judges who were still serving in the UK were pressured into resigning from the Court, but that ten others,  all retired, refused to be pushed around by their governments or anybody else, and chose to follow their consciences by continuing to uphold the rule of law in Hong Kong.        

On January 13, 2023, moreover, the judiciary announced that, subject to the formalities, Patrick Anthony Keane, a retired jurist from Australia, will be joining the Court of Final Appeal, as a non-permanent judge. He was previously a judge of the High Court of Australia and chief justice of its Federal Court, and is highly regarded in legal circles. When asked why he had accepted this appointment, he explained “how successful the Court has been in its role in defending the rule of law,” adding that it has a long history as “a very successful institution that’s made an important contribution to the success of Hong Kong.”

As observations like these illustrate, judicial independence is secure in Hong Kong, and continues to sustain its rule of law. 

K. Conclusion 

On January 24, 2022, the Chief Justice, Andrew Cheung Kui-nung, said the “Hong Kong judiciary is committed to maintaining an independent, impartial and efficient judicial system which upholds the rule of law”, and it has succeeded in doing precisely that since 1997.

This is undoubtedly one of the reasons why, in the World Justice Project’s Rule of Law Index 2022, Hong Kong was rated 22nd out of the 140 countries and jurisdictions surveyed. This rating was no mean feat, particularly after the turbulence it faced in 2019-20. If, as the findings suggest, judicial independence has been abolished “de facto,” it would obviously have been impossible for Hong Kong to have achieved 22nd place, ahead, for example, of the US (26th), Italy (32nd) and Greece (44th).    

I trust you will agree with me, therefore, that the references in the CESCR’s findings to the demise of judicial independence in Hong Kong  cannot withstand even perfunctory scrutiny. As the judiciary itself has confirmed, there is no question of the national security legislation having been arbitrarily used to interfere with its operations. In the interests of accurate reporting, I very much hope that consideration can now be given to setting the record straight.  

If there is any other aspect upon which I can assist the CESCR, I shall be happy to oblige.   

Yours sincerely,

I Grenville Cross.

Senior Counsel, Professor of Law & former Director of Public Prosecutions of the HKSAR, Hong Kong SAR, China,

March 17, 2023.

HE Dr Mohamed Ezzeldin Abdel-Moneim,  

Chair, Committee on Economic, Social and Cultural Rights,

United Nations, Palais Wilson, Geneva, Switzerland.  

The views do not necessarily reflect those of China Daily.