By Jerome A. Cohen
I recently read this good Reuters story by James Pomfret and Greg Torode about Monday's speech by Chief Justice Andrew Cheung at the annual opening ceremony of Hong Kong’s judicial year. The new chief justice provided necessary assurance to the community that the city’s judicial independence continued to be “a fact” despite recent momentous changes wrought by the new National Security Law (NSL) and related measures. He noted that Hong Kong court reports are full of cases making clear that Hong Kong judges continue to take a generous view of fundamental rights in their interpretations and narrowly confine restrictions on such rights.
Yet, at a meeting with the media following his speech, the CJ’s honest answers to questions posed by well-informed journalists inevitably cast doubt on his assurances. When asked to reveal the number and identities of those judges who have been cleared to decide national security cases (juries can now be prevented from deciding these important cases), the CJ reportedly responded that, while he could advise and make recommendations about which judges should be selected to handle such cases, it is the city’s chief executive (Carrie Lam) who is the designating authority under the NSL.
Of course, even if the CE, the city’s most powerful political official, now determines who shall decide the most politically sensitive judicial cases, that does not explain why the CJ cannot at least reveal to the public the number of special judges approved by the CE or their identities. Nor does it explain why consultations on this matter between the CE and the CJ have to remain secret and why, as the CJ admitted, it is not for the judiciary to answer for the criteria governing the choice of its members to handle these cases. It should also be noted that, according to the Court of Final Appeal itself, Hong Kong courts have now lost the power to make final determinations on relevant constitutional questions, as their recent decisions denying bail demonstrate.
This new reality is also an important “fact” of Hong Kong’s judicial independence. My heart goes out to Chief Justice Cheung, who has valiantly taken on an impossible task. (Full disclosure: he reportedly took my course on Chinese law almost forty years ago while a Harvard graduate student.)