Outsiders expect that the National Security Law in Hong Kong will be passed at the earliest by the end of June. The law has aroused continued heated discussion in Hong Kong society.
Shenzhen TV & Direct News reporter Qin Yue interviewed Su Shaocong, former president of the Hong Kong Lawyers Association, on June 26. So Siu-chong is currently a member of the Judicial Officers Recommendation Committee of the Hong Kong SAR Government and is directly appointed by Chief Executive Carrie Lam Cheng Yuet-ngor. In 2017, So Siu-chong was also one of the popular candidates for the Secretary for Justice.
The Judicial Officers Recommendation Committee is a public organization responsible for recommending judicial officers (including judges, magistrates, etc.) in the Hong Kong Special Administrative Region. According to the Basic Law, judicial officers are appointed by the Chief Executive based on the recommendations of the Judicial Officers Recommendation Committee, while the judges of the Court of Final Appeal and the Chief Judge of the High Court are Appointments must also be obtained by the Chief Executive with the consent of the Legislative Council.
So Siu-chung, former president of the Hong Kong Lawyers Association
Su Siu-chung, one of the nine members of the committee, mentioned in an exclusive interview the conditions that a "national security judge" should meet. Su Shaocong believes that these judges must be able to speak Chinese. It would be more helpful if these types of judges have a legal background in mainland China. "The judgment is not based on mainland law." Su Shaocong emphasized, "But you must understand the mainland law, otherwise you do not understand many principles, how will the trial be carried out?"
The explanation of the draft of the Hong Kong National Security Law pointed out that the chief executive will appoint the list of "national security judges" , some people question whether this will affect Hong Kong's judicial independence. Su Shaocong believes that, first of all, the national security law is now higher than local laws. From the legal status, there will be no disputes about violating Hong Kong laws.
Secondly, he believes that the Basic Law protects the independence of judicial power , which means that the court is free from interference from administrative agencies when hearing a case. The chief executive has the right to select a number of judges to hear cases related to the National Security Law. It is just a matter of choosing which type of judge to hear which type of case. It is more like the administrative assignment of work in the court. "It's a bit like a boss dividing the work. If a judge tries a lot of traffic accidents, the traffic cases will be tried by you." He pointed out that strictly speaking, this power of is called "the autonomy to allocate work within the judiciary." In short, judicial power is the power of trial, and judicial independence is the independence of trial, not the independence of allocating work autonomy.
Regarding the phenomenon of "police arresting people and judges releasing people" that is widely concerned by mainland public opinion, Su Shaocong believes that the slow speed of justice is a common problem of the entire system and requires overall reform, rather than cases involving national security, so it must be fast. a little.
So Siu-chong said that there are also judges with different political views in the judiciary, but in Hong Kong, in any professional sector, no matter what political stance you hold, when you perform a professional duty, you cannot mix your personal views into it. .
"What is justice? There is a famous saying, Justice delayed is justice denied. So is hasty justice justice? Too late is not enough, and too hasty is not enough. It is worth thinking about."
The following is the text content of the interview.
Shenzhen TV & Direct News reporter Qin Yue: Let me first talk to you about judicial exchanges. You mentioned that the Hong Kong Lawyers Association has gone to Peking University for legal training in recent years. How has the exchange between Hong Kong and mainland judicial personnel been in recent years? In order to help the Hong Kong Region to better implement the National Security Law in Hong Kong, do you think it is necessary for Hong Kong judges to receive more training in the mainland in the future to understand the mainland's legal system?
Su Shaocong, former president of the Hong Kong Lawyers Association: I have always advocated advancing this matter. Especially the young legal professionals in Hong Kong, whether they are barristers, lawyers or judges, in addition to being familiar with Hong Kong’s local laws, they must also understand the country’s legal system, otherwise there will often be errors in understanding. , it’s like trying to explain college courses using the courses middle school students learn all day long, but you can’t explain it.
From the perspective of the legal profession, looking back at some of the controversies that have occurred in Hong Kong in the past 5-6 years, especially those arising from legal issues, such as the National People's Congress's interpretation of the law, "co-location, two inspections", and now the "Hong Kong "National Security Law of the District", Many times when the country implements some policies or does something according to the country's legal system, the country's legal system is completely constitutional and legal. However, when it comes to Hong Kong, because some people do not understand the mainland's constitutional system structure, and do not understand the mainland's legal system. They only looked at this matter from the perspective of Hong Kong's legal system, and then came out to make some very unfair statements, saying that the central government's actions were not in compliance with the Basic Law, and questioned that the Standing Committee of the National People's Congress or the State Council had no power. This group of people theoretically represents the legal profession. Hong Kong citizens who do not understand the legal situation feel that what they say is true and believe what they say. But in fact, if I want to go deeper, especially when it comes to matters involving the country and Hong Kong, Hong Kong is part of the country. Yes, there are two systems, but there is a country first, and then there are two systems. Just because there are differences in systems, we cannot completely ignore the country. This is wrong and will mislead the public. Take "co-location, two inspections" as an example. "Co-location, two inspections" is not only a problem for Hong Kong, but also the extension of the national railway network to Hong Kong. It is an issue involving the country and Hong Kong. At that time, some people came out and said that the Basic Law did not authorize it. , to challenge the central government’s decision at that time.
The same is true for the national security legislation this time. There are fewer voices of doubt. That is because the central government is very firm in establishing the "Hong Kong National Security Law" and has also made it very clear that this is a national law. The National People's Congress has made the decision and made it clear that if local laws and If the "Hong Kong National Security Law" conflicts with the National Security Law, the National Security Law will take precedence, and even the power of interpretation lies with the Standing Committee of the National People's Congress. Speak very clearly and leave no room for these people to question.
But some people still say that the Basic Law has not been followed, especially when it is mentioned that Hong Kong courts have jurisdiction when dealing with Hong Kong affairs. Does the National Security Law violate the Basic Law's grant of jurisdiction to Hong Kong courts? Some people question this. The reason behind the question is that they think the Basic Law is everything. They also do not understand the decision of the National People's Congress in May this year. The National People's Congress quoted the power granted by the constitution, which is equivalent to the same constitution when the Hong Kong Special Administrative Region was established. authorization.
Since Hong Kong’s national security system was lacking in the past, the central government used the same power to make up for the previous deficiencies. When you understand that this power comes from the country's constitutional power, the following problems are not big problems. However, many people do not understand the constitutional power behind the legislation of the National Security Law, and even ignore the legal status of the National Security Law in Hong Kong. You have seen the recent statements issued by the two Hong Kong Lawyers Association, which did not mention this issue at all. The most critical issue was not clarified, and a series of misunderstandings will follow. The so-called "Hong Kong National Security Law" violates some existing legal concepts in Hong Kong. They do not understand that the National Security Law is above local laws.
Of course, leaving aside the legal aspect, many Hong Kong people may feel that the country has established such a law. Even if you have the power, have you taken into account the rights that Hong Kong people themselves enjoy under the original mechanism? If you look at the content of the National Security Law, it devotes a lot of space to describing the law enforcement actions of the national security departments in Hong Kong. All of them must respect the provisions of the original Basic Law to protect human rights. The "International Convention on Human Rights" applies to Hong Kong, and it also applies to "National Security in Hong Kong" Law enforcement level. In this case, the national security legislation process has actually considered the impact of the new law enforcement mechanism on the protection of human rights in Hong Kong, and specifically made it clear that it will not affect relevant protections.
But do you think there will be some adjustments to allow the national security law enforcement system to be successfully implemented in Hong Kong? Yes, at least there is an additional Central Office of National Security in Hong Kong, and there are also more legal provisions to protect national security, such as related crimes. Since we must proceed from the requirements of ensuring national security, the existing system must be appropriately adjusted to match it. This is a matter of general principle.
Shenzhen TV & Direct News reporter Qin Yue: In the explanation of the National Security Law, it is stated that the chief executive appoints the list of "national security judges". You have been working in the judicial system for a long time. What do most judicial personnel think of the central government's decision?
Su Shaocong, former president of the Hong Kong Law Society: The concept of judicial independence has a common law background in Hong Kong. It is a rule of law concept that existed before the handover and continues to the present. After the handover, all Hong Kong laws, including legal concepts, must comply with the provisions of the Basic Law.
How does the Basic Law talk about judicial independence? The Basic Law states that Hong Kong can exercise independent judicial power and final adjudication power. Judicial power can be exercised independently without interference from administrative power. There are also provisions that further elaborate that Hong Kong courts have independent judicial power when exercising judicial power. My understanding is that the Basic Law protects the independence of judicial power and should talk about the independent trial power of courts. When a court hears a case, it cannot be interfered by administrative agencies. This is the independence of the trial process.
In response to the controversy caused by public opinion, the National Security Law states that the chief executive has the right to select a number of judges to hear cases related to the National Security Law. Some people question whether this interferes with Hong Kong's judicial independence. In fact, this is just a matter of which type of judge will hear which type of case. As of now, the Chief Magistrate of the Tribunal has the power to assign judges internally to hear cases, and the same is true for the District Court. It's a bit like the boss dividing the work, and the judge who hears a lot of traffic accidents will try the traffic cases for you. Strictly speaking, this power is called "the autonomy to assign work within the judiciary." Does this belong to judicial power? I have reservations. I think this is more like the administrative assignment of work in a court. The source of autonomy in assigning work is local law and is designated by a higher-ranking judge in the court. The judicial power is the power of trial and the independence of trial, not the independence of the autonomy of allocating work.
Now the national security law is higher than local laws. From the legal status, there will be no disputes about violating Hong Kong laws. Of course, if you take away other people's "autonomy", some people will definitely be unhappy, but at this point everyone must understand why there is such a need. Some people question why the existing mechanism in Hong Kong cannot be used? Why give the chief executive so much power? If there are any special needs under the National Security Law, the existing Judicial Personnel Recommendation Committee can help recommend them. Some people think this way.
Shenzhen TV & Direct News reporter Qin Yue: You are also a member of the Judicial Officers Recommendation Committee of the Hong Kong SAR Government. What is the scope of this committee’s powers? Have you discussed internally the recommendation of National Security Law judges?
Former President of the Law Society of Hong Kong, So Siu-chong: The Judicial Officers Recommendation Committee is an independent organization for the Hong Kong SAR government to recommend judicial officers. I am one of the nine members of this committee. The internal operations of the committee are highly confidential and it is not convenient for me to disclose them to the public. But in terms of the scope of its functions, first of all, there is a law, the Judicial Officers Recommendation Committee Ordinance, to supervise the operation of this committee, which mainly handles matters such as the appointment and removal of judges in Hong Kong. After internal discussions and studies, the committee will provide recommendations to the Chief Executive. It also includes issues such as the promotion and remuneration of judges, etc., which are all within the scope of the committee's responsibilities.
Going back to just now, from the perspective of legal positioning, the law on the Judicial Personnel Recommendation Committee is also a local law and cannot override the national security law. In addition, a selection mechanism such as the Judicial Officers Recommendation Committee can only deal with the scope of the Basic Law. At present, the entire legal system of Hong Kong is based on the original system of the Basic Law, but now the National Security Law is outside the Basic Law. It is a system to ensure national security, which is not included in the Basic Law.
We have seen that the National Security Law clearly states how to investigate a case, who will be responsible for prosecuting, and who will be responsible for trial. The entire process has been covered from scratch. There are no provisions in the Basic Law on how to deal with this type of cases, except for Article 23, but Article 23 only legislates on certain types of conduct.The national security law was enacted by the state. Taking into account Hong Kong's special system, the central government has agreed that most cases will be handled under Hong Kong's current mechanism. However, in some special circumstances, the central government also needs to retain jurisdiction.
Shenzhen TV & Direct News reporter Qin Yue: So what do you think the conditions should be met by the chief executive when he lists the list of "national security judges"?
Su Shaocong, former president of the Hong Kong Lawyers Association: First of all, I think these judges must be able to speak Chinese. Although some people say that I talk about common law, why should I deal with the laws of mainland China? I don’t agree. Now you are helping the country to try cases related to national security. The National Security Law is a national law, and many details are drawn from the existing legal principles on national security in the mainland. So I think language skills must be there, otherwise If you can't even read Chinese documents, how can you try them? Secondly, after having the language, it will be more helpful if this type of judge has a background in Chinese law. It doesn’t matter if is not available. I believe that the central government will provide relevant training for judges on national security issues. This is not just a problem in Hong Kong courts. If you look at all levels, the law enforcement department must set up a task force, and the Department of Justice must also set up a team for monitoring. From law enforcement, prosecution to trial, it is a one-stop process, and a specific group of people are required to do it. deal with. There is a National Judges Academy in the Mainland, which often provides training on some legal updates. I think this is very necessary. We need to let these judges understand the legal principles of national security, including the legal principles of the mainland. However, some people may criticize me: Why should we use mainland laws in Hong Kong? The judgment is not based on Mainland law, but you must understand Mainland law. Otherwise, if you don’t understand many principles, how will the case be tried?
Some people say that the nationality of a judge is very important? I don't think this is the most important thing. Of course, you have to look at the specific case. If a certain country is involved, if the judge happens to have the nationality of that country, then of course there is a conflict of interest, and cannot hear the case.
Shenzhen TV & Direct News reporter Qin Yue: So what principles do you think will be followed in the trial process of cases related to the National Security Law? In the past year, many people have questioned the judicial efficiency of Hong Kong. Some people said that the entire trial took too long, while others said that the police arrested people and the judges released them. What do you think of the future judicial process of national security law-related cases? efficiency?
Su Shaocong, former president of the Hong Kong Lawyers Association: Judging from the current description of the National Security Law, it is for Hong Kong courts to handle it according to the existing mechanism. Therefore, I believe that the trial (of the National Security Law) may follow Hong Kong’s previous principles. Only in this way can Hong Kong people and even the world see that even when dealing with national security laws, I fully respect Hong Kong's existing system. You said the speed is slow. This is a common problem of the entire system and requires overall reform. It is not a matter of moving faster because of cases involving national security.
I have been in this business for many years. Indeed, many people, especially friends from the mainland, ask, why does it take so long to litigate in Hong Kong? To be honest, judicial efficiency is indeed a problem, but it is not just a problem in Hong Kong. Under the common law system, the handling of a dispute is led by the parties, and the court is passive and neutral. In theory, the judge should not be too active, which makes people feel that is helping one of the parties. Sometimes the prosecution wants to go fast, but the defense is not ready or wants to slow it down. In this case, in terms of the speed of handling the case, I agree that it has been slow all the way. In addition, the Chief Justice explains to everyone every year that it is difficult to hire suitable judges if they cannot find people. He said that if a judge does not meet the requirements, he would rather not invite one. Therefore, there is indeed a problem with judicial efficiency in taking time to process cases.
But what you just said about the police arresting people and the judges releasing them, I think it is not a fair statement from a normal perspective. There are also judges with different political views in the judiciary, but in Hong Kong, I think the principles of any professional sector are the same. No matter what political stance you hold, when you perform a professional duty, you cannot put your personal Opinions are mixed in.What a judge needs to handle a case is law and evidence, and nothing else should be relevant. Individual judges consider different factors, but as long as they are within the legal norms, they have the right to make such a ruling. If the defendant is dissatisfied with the verdict, according to the existing mechanism, the defendant can appeal. Some people say why it is so slow. This is how the entire mechanism works.
In the common law system, although it takes a long time, it may feel fair to the parties involved. The defendant may really need more time to prepare, carefully consider the evidence provided by the prosecution, and be able to explain his position clearly when he goes to court one day. The judge should also be given enough time to consider the positions of both parties and make a decision.
What is righteousness? There is a famous saying, Justice delayed is justice denied.
Is such hasty justice justice? It's neither too late nor too hasty. It's worth thinking about.
