By Jerome A. Cohen
Here is another interesting development. As a result of criticisms from highly respected sources in Hong Kong and elsewhere – NOT Tony Kwok or Grenville Cross, some flesh has been put on how the Chief Executive will exercise the power to appoint judges for security cases.
The system being articulated may not in itself be a bad one or an unusual one if the question of how to appoint judges is viewed in the abstract and in comparative terms. But in the context of existing HK reality, one has to ask, as many still do: why is this new appointment system being introduced? Why is it limited to security cases? HK already has a good system for selecting judges for ALL cases. Who is being excluded from the HK judiciary for consideration of these special cases? Foreign judges? Judges considered too sympathetic to democracy? Why?
Moreover, this whole desirable flap over judicial independence obscures the even more serious problem that will certainly persist. That problem arises from the breadth of the definitions of the offenses to be proscribed in the National Security Law and the broad discretion this will give HK government prosecutors to bring charges. For example, the next time Martin Lee and Jimmy Lai come to New York, if they again speak at the Council on Foreign Relations as they recently did, will this lead to their prosecution for “colluding with foreigners’” for saying things that the HK government and its willing Secretary for Justice think should be regarded as “against the interests of HK”?
An independent judge will look at the breadth of the statute and find that the words involved are not self-defining. The judge will have to decide whether the interpretation put upon those words by the prosecution, so broad as to prohibit the speeches involved, is a proper one or whether, in the interests of freedom of speech and other constitutional considerations, a narrower interpretation protecting the freedoms in question is to be preferred. Hong Kong judges have been capable of taking on this task of interpretation until now.
But the NSL now clearly commands that all future interpretations of this nature must be made NOT by HK judges but exclusively by the NPCSC. This is the core problem that focus on judicial appointments alone obscures! Yet we are not allowed to learn – until too late, when the law emerges - how the new offenses are defined, if at all, in the law. Amazingly, even Carrie Lam admits that, even at this late date, she, Hong Kong’s stoutest defender of the draft, has not seen all of it! And in the absence of release of the draft text, all the symposiums of limited, selected audiences currently being convened by PRC agencies are a meaningless, even deceptive, substitute for the usual genuine public consultation that the draft deserves but has been denied.