'Foreign Judges Never Hear National Security Cases'

A senior mainland official has indicated that foreign judges will not be allowed to handle national security trials in future – even though the Chief Executive Carrie Lam had said on Tuesday that there will not be a nationality restriction on judges assigned to such cases.

In an opinion piece published in Ming Pao newspaper on Wednesday, Zhang Yong, the deputy head of the Commission for Legislative Affairs of the National People’s Congress Standing Committee, noted that ‘many people’ believe judges holding more than one passport should not be allowed to handle national security cases, so as to avoid the problem of “double allegiance”.

Zhang added that he’s never seen any place in the world where foreign judges would preside over cases concerning threats to national security.

This is in stark contrast to comments by the Chief Executive just the day before.

Carrie Lam had said it’s “not quite realistic” to only have judges with Chinese citizenship deal with such cases, and it’s “obvious” that “there are no particular restrictions on the judges to be designated by the chief executive onto the future sort of group to adjudicate these national security cases.”

Since no draft of the law has ever been made public, it remains unclear whether the actual legislation explicitly states that foreign judges are excluded from hearing national security cases.

Some elements of the legislation have been reported on by the state media, with Xinhua saying the chief executive shall have the power to appoint judges to oversee cases that fall under the coming security law.

Lam has said she will be consulting the Chief Justice when compiling a list of suitable judges, and the judiciary would itself assign a judge from within this pool to deal with national security cases.

Legal sector lawmaker Dennis Kwok said a Chinese-only restriction for judges doesn’t make sense, saying their nationality has nothing to do with whether they can discharge their duties properly.

He noted that all judge have pledged to uphold the Basic Law, and said based on the same logic, does it mean pro-government lawmakers with foreign nationality should be barred from vetting bills related to national security in Legco as well?

Kwok added Lam’s promise to consult the Chief Justice in coming up with a list of judges isn’t very meaningful.

"The underlying problem is not whether the CE would pick a so-called foreign judge, the underlying problem is that this decision should not be left to her alone to make," he said.

"In accordance with our usual way of appointing and recommending judges, it is always done by the chief justice or buy the judicial officers recruitment commission, and that recommendation is then tabled before the Chief Executive for her to appoint, and that is the way it’s done for many, many different tribunals and special judges."

In the Ming Pao article, Zhang also said giving the chief executive the power to appoint judges to national security cases is a “show of respect” for Hong Kong’s judicial system, and dismissed suggestions that such an arrangement will undermine judicial independence.

The official said no law enforcement official in Hong Kong is specifically designated to protect national security.

The authorities cannot allow the “legal vacuum” to continue, he said, as radical separatists and Hong Kong independence advocates gain popularity, while the people’s sense of recognition with their nationality continues to weaken.

A small number of people, he said, even take pride and pleasure in acting against national security.

He added the central government could have just imposed the relevant mainland law directly on Hong Kong, but instead, it chose to go through the current legislative process.

This is because the central government is determined to maintain and perfect One Country, Two Systems, he said.