The Hong Kong Special Administrative Region Government today said that the statement made by former non-permanent judge of the Court of Final Appeal (CFA) Brenda Hale on the Hong Kong National Security Law (HKNSL) and the rule of law and independent judicial power in Hong Kong is far from the truth, particularly her assertion that “the National Security Law has taken over the Basic Law” is absolutely incorrect and contrary to the facts.
In a statement, the Hong Kong SAR Government noted that any claims the security law overrides the Basic Law are incorrect. Article 1 of the HKNSL clearly states that the Standing Committee of the National People’s Congress (NPCSC) enacts the security law in accordance with the Constitution, the Basic Law, and the NPC’s decision on establishing and improving the legal system and enforcement mechanisms for safeguarding national security in Hong Kong.
The HKNSL, promulgated and implemented in Hong Kong on June 30, 2020 has plugged the loopholes in the legal system and enforcement mechanisms for safeguarding the city’s national security. The security law and other laws safeguarding national security in Hong Kong firmly adhere to the principle of the rule of law while protecting the rights and freedoms enjoyed under the Basic Law in accordance with the law, the statement added.
The statement noted that the judicial system of Hong Kong is protected by the Basic Law. According to Articles 2, 19 and 85 of the Basic Law, the Hong Kong SAR shall be vested with independent judicial power, including that of final adjudication, and the courts shall exercise judicial power independently, free from any interference.
All judges and judicial officers abide by the Judicial Oath and administer justice in full accordance with the law without fear or favour, self-interest or deceit. When adjudicating cases of offences endangering national security, as in any other cases, judges remain independent and impartial in performing judicial duties, free from any interference, the statement said.
The implementation of the security law over the past five years has proven that the courts have handled all the cases involving the HKNSL strictly in accordance with the above principle, it added.
“The NPCSC’s authority to interpret the Basic Law and national laws that apply in Hong Kong is a fundamental aspect of the “one country, two systems” principle and has been recognised in the jurisprudence of the city.
“It is therefore entirely in line with the ‘one country, two systems’ principle that the general power to interpret the HKNSL being a piece of national law, as stipulated in Article 65 thereof, is also vested in the NPCSC.”
The interpretation given by the NPCSC on Articles 14 and 47 of the HKNSL in December 2022 does not and did not directly deal with any specific judicial proceedings or cases. Rather, it clarifies the meaning of the relevant legal provisions and the basis for application of the HKNSL.
It does not in any way impair the independent judicial power and the power of final adjudication of the courts as guaranteed by the Basic Law. It is for the Hong Kong SAR to resolve specific cases and issues by itself.
The Hong Kong SAR Government said that the long-time presence of esteemed judges from overseas appointed or reappointed as the CFA’s non-permanent judges participating in hearings of the Court as well as after the enactment of the security law, is conducive to the international legal environment and development of the jurisprudence of common law in Hong Kong.
There are currently six non-permanent judges from the UK, Australia and New Zealand in the CFA.
Brenda Hale was appointed as a non-permanent judge of the Court in 2018, but has never been involved in the hearing of any cases.
She indicated to the Judiciary in June 2021 that for personal reasons, she would not wish to have her appointment extended for another term upon the expiry of her then appointment, which differs from her current statement.
