Topic 5 Significance of rule of law

Judicial independence (Group discussion)

Group member:

Task 1

1. Matching:
How do the following provisions ensure judicial independence in Hong Kong? (3 marks)
以下條文如何確保香港的司法獨立？
A. Ensure that the court conducts trials independently and without interference

(保證法院獨立進行審判，不受干涉)

B. Guarantee the power of the judiciary (保證司法機關的權力)

C. Ensure the independence and the quality of judges.

(確保法官的獨立性，保證法官質素)

Excerpt from Article 19 of the Basic Law B

The courts of the Hong Kong Special Administrative Region shall have
jurisdiction over all cases in the Region, except that the restrictions on their
jurisdiction imposed by the legal system and principles previously in force in
Hong Kong shall be maintained.

(香港特別行政區法院除繼續保持香港原有法律制度和原則對法院審判權
所作的限制外，對香港特別行政區所有的案件均有審判權。)

Article 85 of the Basic Law A

The courts of the Hong Kong Special Administrative Region shall exercise
judicial power independently, free from any interference. Members of the
judiciary shall be immune from legal action in the performance of their
judicial functions.

(香港特別行政區法院獨立進行審判，不受任何干涉，司法人員履行審判
職責的行為不受法律追究。)

Excerpt from Article 89 of the Basic Law C

A judge of court of the Hong Kong Special Administrative Region may only be
removed for inability to discharge his or her duties, or for misbehaviour, by
the Chief Executive on the recommendation of a tribunal appointed by the
Chief Justice of the Court of Final Appeal and consisting of not fewer than
three local judges.

(香港特別行政區法院的法官只有在無力履行職責或行為不檢的情況下，
行政長官才可根據終審法院首席法官任命的不少於三名當地法官組成的
審議庭的建議，予以免職。)
2. According to source A, how do judges maintain judicial independence? (2 marks)

Source A : An extract from the speech delivered by the Chief Justice of the Court of Final
Appeal at the Ceremonial Opening of the Legal Year 2021

Judges decide cases independently. When deciding a case, a judge is not subject to the
control or interference by other judges, including more senior judges, independent of his
own personal views or beliefs, political or otherwise. By his words and conduct, he must
treat everyone that comes before the court equally and fairly. A judge must therefore
exercise self-restraint. When dealing with high profile cases or cases with a political
flavour, judges must be particularly careful with their appearance of impartiality in terms
of what they say in court or write in their judgments, or how they treat the parties, their
lawyers or the witnesses.

法官獨立斷案，判決案件時不受其他法官（包括比其資深的法官）的操控或干預，
不為個人在政治或其他方面的觀點或信念所左右。法官對待法庭每個人，在言行上
都必須一視同仁。因此，法官必須自我克制，處理備受注目或帶政治色彩的案件
時，不論在庭上發言、撰寫判案書，或在對待訴訟各方、其律師或證人時，務必格
外審慎，確保予人公正無私的觀感。

Answer:

Judges decide cases independently. By his word and conduct, he must treat everyone
that comes before the court equally and fairly, so the judiciary is fair and impartial.
Task 2

“The interpretation of the Basic Law by the National People’s Congress Standing Committee
would undermine Hong Kong’s judicial independence.” This statement is not correct. Explain
and analyse the above comment based on Article 67 of the Constitution and Article 158 of
the Basic Law. (4 marks)
(「全國人大常委會解釋《基本法》損害香港的司法獨立」這一說法是錯誤的。請依據
《憲法》第六十七條第四項和《基本法》第一百五十八條的規定作出解釋及分析。)

Tips Answer

The interpretation of the Basic Law by the National

Introduction People’s Congress Standing Committee would not
undermine Hong Kong’s judicial independence.

Why does the Standing

Committee of the National
People’s Congress (SCNPC)
has the power to interpret the
Basic Law?

Support your answer with

the Basic Law.
The courts of the HKSAR
interpret the Basic Law when
hearing cases. Where does
such power of come from?

Would the SCNPC interfere

with the trial? Does the
interpretation of the SCNPC
has any effect on the previous
judgment?