Opinion | National security law: Hong Kong chief executive’s power to pick judges does not undermine judiciary

Former chief justice Andrew Li Kwok-nang recently voiced his opinions on the enactment of the Hong Kong national security law by the Standing Committee of the National People’s Congress. He argued, inter alia, that the chief executive’s power to select the judges who would deal with national security cases would be detrimental to the city’s judicial independence. To address an accusation that involves a breach of the Hong Kong Basic Law, we have to respond in line with that law.

Li establishes his arguments on three grounds. First, the judiciary is independent from the executive, thus the independent judiciary has the power to determine which judges shall deal with national security cases, without interference from the executive. Second, the chief executive lacks experience and expertise in the selection of judges. Third, it is improper for the chief executive, as chairperson of the Committee for Safeguarding National Security, to select judges on her own.

In accordance with Articles 43 and 48, the chief executive is the head of both the Hong Kong Special Administrative Region and its government at the same time, that is, she has dual capacities, and therefore is accountable to the central government and the SAR at the same time. One of her prime duties is to implement the Basic Law and all other laws applicable to the SAR as adopted by the Basic Law, which, needless to say, shall include those set out in Annex III.

The entire Chapter IV of the Basic Law, which sets out the SAR’s political system, has six sections. Section 1 is devoted to the roles and duties of the chief executive, while the next three sections sets out the same for the executive authorities, the legislature and the judiciary. This shows that the chief executive is at the core of the SAR’s power structure, and is also the hub of the constitutional relationship between the central government and the SAR.