英文

Editorial:National Security Powers Should be Used with Caution

【明報專訊】AT the ceremonial opening of the legal year yesterday (20 January), Chief Justice of the Court of Final Appeal Andrew Cheung Kui-nung underlined the judiciary's commitment to fundamental legal principles such as the presumption of innocence and the right to a fair trial when handling national security cases. Over the past year, the courts have presided over several high-profile national security cases, including the ''Hong Kong 47'' case and the ''Dragon Slayer'' case. This year, the verdict in the Jimmy Lai case is likely to draw considerable attention. Striking a balance between protecting basic rights and safeguarding national security is no easy task. While certain rulings have sparked controversy, these should not cast doubt on Hong Kong's judicial system or its adherence to the rule of law.

Cheung stated that following the introduction of the National Security Law and the enactment of legislation under Article 23 of the Basic Law, certain politically sensitive cases have come under scrutiny. However, the courts remain steadfast as guardians of the law, applying the same legal principles to national security cases as to any others. These include the presumption of innocence, the requirement that guilt be proved beyond reasonable doubt, and the right to a fair trial—fundamental safeguards that have been consistently upheld across all levels of the judiciary.

Cheung also addressed concerns over the departure of certain overseas non-permanent judges from the Court of Final Appeal, affirming that this has not undermined the judiciary's robustness. The court continues to include both highly esteemed overseas and local non-permanent judges, maintaining its enduring strength and resilience.

In recent years, Hong Kong has experienced drastic changes in its internal and external environment, with some Western politicians questioning the city's judicial integrity. Victor Dawes, Chairman of the Hong Kong Bar Association, recently acknowledged that Hong Kong's rule of law faces perception issues abroad. He emphasised that courts must adjudicate cases based on law and facts, while the Department of Justice and the legal profession should do more to communicate this to the international community. At the same time, Dawes urged the SAR government to exercise prudence in using the powers granted under new national security legislation, demonstrating that the city remains a jurisdiction that respects civil rights.

Over the past two years, the Court of Final Appeal has ruled on a range of impactful cases across diverse legal domains, including anti-money laundering laws and equality claims involving same-sex relationships. Cheung spoke against focusing solely on national security or public order cases, and drawing sweeping conclusions about the state of the rule of law or judicial independence in Hong Kong. He argued it was a narrow perspective that misunderstood the full scope of the judiciary's role and work. It was also overlooking the fact that the rule of law in Hong Kong continues to operate robustly across a wide spectrum of legal areas, he said.

As China's only common law jurisdiction, Hong Kong plays a unique role in bridging the nation with the international community. The central government has repeatedly reaffirmed its support for the city's common law system. Xia Baolong, head of the Hong Kong and Macao Affairs Office, recently stressed the need to accelerate the establishment of an International Mediation Institute in Hong Kong, underlining Beijing's recognition of the city's legal and judicial systems.

Any hasty changes to the city's well-established judicial framework would be unwise. The overseas judges' system of the Court of Final Appeal has been instrumental in fostering exchanges between Hong Kong and other advanced common law jurisdictions. While current geopolitical tensions may have made the recruitment of overseas judges less seamless, there is no need to fundamentally alter the system of non-permanent judges.

明報社評 2025.01.21:法庭秉公判案顯法治 政府國安權力須慎用

昨日法律年度開啟典禮上,終審法院首席法官張舉能強調法庭會堅守無罪推定、公平審訊等法律原則,處理國安案件。過去一年,法庭審理多宗備受關注的國安案件,包括「47人案」及「屠龍案」,而今年黎智英案的裁決亦備受矚目。法庭在保障基本權利與維護國安之間尋求平衡,並非易事。雖然個別裁決引發爭議,但不應質疑本港司法制度和法治精神。

張舉能表示,隨着《港區國安法》生效以及《基本法》第23條立法,出現了一些因政治敏感而備受關注的案件,法院的本位是法律守護者,國安案件與其他案件均採用相同法律原則,無罪推定、要求罪行必須證明至「毫無合理疑點」的規定,以及公平審訊的權利,根本保障始終如一,各級法院也確實如此行事。

張舉能又提到,個別終審法院海外非常任法官離任,不會削弱司法制度的健全性,終院依然擁有深受尊崇的海外及本地非常任法官,具備持久的實力和承受挑戰的能力。

近年香港內外環境劇變,西方一些政客質疑香港司法運作。大律師公會主席杜淦堃近日坦言,香港法治在海外面對觀感問題,法庭須根據法律及事實判案;而律政司和法律界應多向外界解說,同時,特區政府應審慎運用國安新法例下的權力,證明香港是一個尊重公民權利的司法管轄區。

過去兩年,終審法院審理多宗在不同法律範疇甚具影響的案件,包括打擊清洗黑錢法例、同性平權申索等,張舉能指出,單單聚焦國安或公共秩序案件,對香港法治或司法獨立狀况作出以偏概全的結論,不僅誤解了司法機構角色與職責,同時亦忽視了香港法治在不同法律範疇持續紮實運作這一事實。

香港作為國家唯一的普通法司法管轄區,對於國家接軌國際,具有特殊角色及作用。中央一再重申支持香港保持普通法制度,夏寶龍日前指出,香港要加快建設國際調解院,突顯中央看重香港法治和司法制度。

貿然改變長期行之有效的司法制度安排,並非明智之舉。終院海外法官制度有效促進香港與其他高水平普通法司法管轄區的交流。儘管受地緣政治局勢影響,現在延聘海外法官或不如以往順暢,然而沒必要因此就從根本上改變終院非常任法官制度。

■/ Glossary 生字 /

steadfast:not changing in your attitudes or aims

resilience:the ability of people or things to recover quickly after sth unpleasant, such as shock, injury, etc

adjudicate:to make an official decision about who is right between two groups or organisations that disagree

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