A former Chief Justice has said that Hong Kong’s looming national security law must not be applied retrospectively, adding that the idea of barring judges who hold foreign passports to adjudicate on such cases would be detrimental to judicial independence.

In a Ming Pao op-ed, former chief justice Andrew Li voiced support for China’s National People’s Congress (NPC) to enact national security legislation, saying it was understandable and justifiable, but he said that the crux is within its actual content which must be consistent with common law principles.

Andrew Li. File photo: The University of Hong Kong.

“The law must not be retrospective. Offences must be defined with reasonable certainty. Their scope must be restricted to what is necessary to achieve the legislative purpose. Investigatory powers must be governed by Hong Kong law,” he said. “In particular, premises cannot be searched and phones cannot be tapped unless judicial authorization has been obtained.” Li also said that trials should be conducted in Hong Kong openly and fairly with the accused defendants presumed innocent.

In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.

Hong Kong Deputy to the NPC Maggie Chan previously proposed that all national security law cases ought to be handled by a designated court and overseen only by judges with Chinese nationality, according to Stand News.

Maggie Chan Man-ki. File

“Friends who support judges of dual or foreign nationality adjudicating national security cases – you are circumventing the important issues which may arise from conflicts of interest,” Chan wrote on Facebook.

Voicing disagreement with Chan, Li said that the suggestion is not justified and would be detrimental to judicial independence. “A judge’s ability to fulfil this oath fully is not affected by his holding a foreign passport. There is no conflict or perceived conflict.”

“Such a requirement would be detrimental to judicial independence as guaranteed by the Basic Law. Under it, judges are chosen on the basis of their judicial and professional qualities and are appointed by the Chief Executive on the recommendation of an independent commission.”

File photo: Holmes Chan/HKFP.

Li was the city’s first Chief Justice after the handover of Hong Kong in 1997 and was succeeded by Geoffrey Ma in 2010.

Rachel Wong

Rachel Wong previously worked as a documentary producer and academic researcher. She has a BA in Comparative Literature and European Studies from the University of Hong Kong. She has contributed to A City Made by People and The Funambulist, and has an interest in cultural journalism and gender issues.