The Bar Human Rights Committee of England and Wales has today published its follow up to the 2023 report on judicial independence in Hong Kong SAR using the American Bar Association ROLI Toolkit & Methodology.
The question of judicial independence has loomed large in Hong Kong in recent years and a critical analysis of the judicial system as a whole is timely. The imposition of the Hong Kong National Security Law on Hong Kong by Beijing in 2020 (the NSL) has fundamentally changed the constitutional landscape in Hong Kong. In 2021, the Court of Final Appeal ruled that Hong Kong courts do not have jurisdiction to challenge the National Security Law nor the authority to declare any part of the NSL unconstitutional or invalid under the Basic Law and Bill of Rights, which serve as Hong Kong’s ‘mini’ constitution. In December 2022, Hong Kong’s executive branch exercised its discretion to request the National People’s Congress Standing Committee in Beijing interpret provisions in the National Security Law. This request was made in connection with a case concerning whether individuals charged under the NSL have the right to instruct foreign legal counsel. Beijing’s Interpretation overturned the Court of Final Appeal’s decision to allow a foreign lawyer to participate in the defence team in a trial concerning national security charges. The Interpretation also expanded the role of the Committee for Safeguarding National Security of the Hong Kong SAR (the National Security Committee) empowering committee members to make legally binding decisions and judgments on questions of national security under Article 14 of the NSL.
The revocation of the right to judicial review, coupled with the apparent shift in judicial decision-making to political appointees from the National Security Committee or the National People’s Congress, significantly undermines the core principles of rule of law. The legislation’s absence of clear guidance or safeguards to constrain these unchecked powers poses serious threats to both judicial independence and the rule of law in Hong Kong. The enactment of the Safeguarding National Security Ordinance (SNSO) in March 2024 amplifies these concerns. The SNSO was passed after a brief one-month consultation process and less than 3 weeks of legislative vetting. This law establishes new national security offences such as external interference and collusion with external forces, which are broadly defined, as well as creating new powers for law enforcement authorities to detain suspects forlonger periods and to deny them access to legal consultation on grounds of national security. The body of this report will address these developments and their profound implications for the legal system in Hong Kong, and the rights and freedoms of individuals as at December 2024.
This report follows on from the Bar Human Rights Committee’s first report on Hong Kong SAR judicial independence using the ABA ROLI Toolkit & Methodology, published in January 2023 and available at barhumanrights.org. The American Bar Association Rule of Law Initiative (ABA ROLI) Judicial Independence Monitor establishes a robust framework for assessing the rules and laws affecting a legal system and how those rules and laws are applied, as well as more intangible elements related to perception and trust in the legal process. The toolkit is designed to assess the vulnerabilities and strengths of judicial independence. It can be used by experts in legal practice, civil society, academia, government, or the private sector to assess their work on policy reform. The analysis offered by the Judicial Independence Monitor helps inform existing indices through a comprehensive analysis of judicial independence, subsequently becoming part of the larger feedback loop that already exists in assessing political and governance systems globally. It complements the Bangalore Principles of Judicial Conduct.
DOWNLOAD | BHRC Hong Kong SAR Judicial Independence Report 2025
