對於行政長官有權指定若干法官審理涉及危害國家安全的案件，李國能認為會損害司法獨立。理由是根據《基本法》，行政長官須根據獨立委員會，即司法人員推薦委員會的推薦來委任法官。… Continue reading
一、李國能開宗明義指出，全國人大常委會法工會就「港區國安法」草案的〈說明〉，表示會跟隨香港法律原則，包括無罪推定（The Presumption of Innocence）。同沒有建議法例具有追溯力。
1. It is unfortunate that the draft law has not yet been published. But it is significant to note that the Explanation of the Legislative Affairs Commission of the NPCSC had stated that the legal principles of our system would be followed, including the presumption of innocence. There is no suggestion that the law would be retrospective.
2. I wish to comment on two matters affecting the Judiciary.
3. First, it was stated that the Chief Executive would have the power to select the judges who would deal with national security cases. This would be detrimental to the independence of the Judiciary.
4. Under the Basic Law, judges are appointed by the Chief Executive (CE) on the recommendation of an independent commission, that is, the Judicial Officers Recommendation Commission. Judges are chosen on the basis of their judicial and professional qualities and exercise their judicial power independently free from any interference.
5. The Judiciary is independent from the executive authorities. It is the independent Judiciary which should decide on the judges who would hear these cases without any interference from the executive authorities.
6. Further, the CE would not have the required knowledge of the experience and expertise of the judges to make the selection on his or her own. And the CE’s chairmanship of the National Security Commission to be established in Hong Kong would make it inappropriate for the CE to make the choice on his or her own.
7. If this view is not acceptable, then the arrangement should at least provide that the CE’s selection of these judges must be based on the recommendation of the Chief Justice or that of the Judicial Officers Recommendation Commission. This would ensure that the choice will be made on a professional and independent basis.
8. Secondly, the Explanation stated that under specific circumstances, the central authorities may exercise jurisdiction over a tiny number of criminal cases that jeopardise national security. This also raises serious concern.
9. When exercised, these cases will be dealt with and tried in the Mainland. The defendant would not enjoy the safeguards of our judicial process. Although this jurisdiction could only be exercised in the most exceptional circumstances, it would undermine the independent judicial power which our courts are authorized to exercise under the Basic Law.
The Hon Andrew Li Kwok Nang
First Chief Justice of the HKSAR 1997-2010