Judge designation explained

July 2, 2020

The designation of judges and the operation of the courts in handling cases concerning the National Security Law must be subject to the requirements of the Basic Law, Chief Justice Geoffrey Ma said today.


In a statement, Mr Ma said the Chief Executive shall designate judges at each level of court to handle cases and appeals in relation to the National Security Law.


As stated in the government booklet on the National Security Law issued on July 1, judges are to be designated by the Chief Executive after consultation with the Court of Final Appeal Chief Justice.


Mr Ma said that designated judges can only comprise judges who have been appointed pursuant to the requirements of the Basic Law and that all designated judges will therefore come from the existing ranks of the Judiciary.


This is prescribed under Article 44 of the National Security Law, he added.


Appointments of judges under Article 88 of the Basic Law are made by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission, which is chaired by the Chief Justice, Mr Ma said, noting that this has always been the position in Hong Kong.


Another relevant provision of the Basic Law is Article 92, he said.


As the Chief Executive has made clear, designated judges, like all judges, are to be appointed based on their judicial and professional qualities. These are the only criteria relevant to the appointment of judges.


This means that judges should not be designated on the basis of any political considerations, reinforcing the principle that in the handling or determination of any legal dispute, only the law and legal principle will be considered, he added.


The Chief Justice also said judges of foreign nationality are not excluded and that they are expressly permitted to be appointed as judges in Hong Kong under the Basic Law.


Such judges include the Non-Permanent Judges of the Court of Final Appeal from common law jurisdictions, whose immense contribution to Hong Kong has repeatedly been acknowledged by the Chief Executive, he said.


Mr Ma pointed out that while Article 44 of the National Security Law refers to the designation of a number of judges, this is not automatically to suggest the unsuitability of other judges in the Judiciary. 


He noted that in considering the suitability of judges to be designated, any legal objections will have to be taken into account, such as those set out in Article 44 or any objections based on bias or reasonable perceptions of bias or other legal objections.


It is intended that once the term of designated judges comes to an end, other suitable judges may be designated, he said, adding that this will apply as far as Court of Final Appeal Non-Permanent Judges from common law jurisdictions are concerned.


He also said that the listing and handling of cases as well as the assignment of which judge or judges to handle cases or appeals will be determined by the court leader of the relevant level of court.


These are matters within the sole responsibility of the Judiciary, he said, emphasising that the independence of the Judiciary and the rule of law are cornerstones of the Hong Kong community.


It remains the mission and the constitutional duty of the Judiciary to maintain and protect judicial independence and the rule of law, Mr Ma added.

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