國安法案件內地審理 會損香港獨立司法權 李國能

國安法案件內地審理 會損香港獨立司法權

李國能 (首任終審法院首席法官)   23/06/2020

1.《中華人民共和國香港特別行政區維護國家安全法》的草案至今仍未公布，實屬不幸。不過，值得留意的是，全國人大常委會法制工作委員會的《說明》表示會跟隨香港的法律原則，包括無罪假設。《說明》亦沒有建議法例具有追溯力。

2. 我希望就兩個影響司法制度的問題作出評論。

行政長官不適合自行選擇法官

3. 第一，《說明》列明，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，這會損害司法獨立。

4. 根據《基本法》，行政長官是按獨立委員會，即司法人員推薦委員會的推薦而委任法官。挑選法官是建基於他們的司法及專業才能，法官會獨立地行使司法權力，不受任何干預。

5. 司法機構獨立於行政機關。應由獨立的司法機構決定審理這些案件的法官，不受行政機關的干預。

6. 再者，單憑行政長官會欠缺挑選法官時所需知道的法官的經驗和專長。而且，作為將在香港成立的「維護國家安全委員會」主席，行政長官並不適宜獨自挑選指定法官。

7. 如果不接受上述觀點，日後的安排起碼應該是，行政長官挑選這些法官時，必須依據首席法官或司法人員推薦委員會的建議，這能確保選人是基於專業和獨立的基礎。

8. 第二，《說明》寫明在特定情形下，中央機構或對極少數危害國家安全犯罪案件行使管轄權。這也引起極大的關注。

9. 行使管轄權時，這些案件會在內地處理及審理。案件的被告不能享有我們司法程序的保障。雖然這個管轄權只會在最例外的情况下行使，這仍會破壞香港法院在《基本法》授權行使的獨立司法權力。

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.

I wish to comment on two matters affecting the Judiciary.
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.

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.

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.

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.

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.

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.

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.