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Practice Exam Feedback
Practice Exam Feedback
with some commentary. A few things to bear in mind before you read them.
1) The two “A” answers are not necessarily the two “best” answers of all submitted,
and the two “C” answers are not necessarily the two “worst” answers of all
submitted. I chose them because they have elements that allow me to highlight
strengths and weaknesses in a clear way.
2) As I promised and as the examples I chose below show, it was entirely possible to
receive an A grade with totally different answers to the question (in this case,
whether there is or is not a connection to judicial independence in a hypothetical
exclusion of the overseas judges from NSL cases). I gave A’s to both groups of
opinions in the practice exam. Again, all I care about is that you ground your analysis
in the course material / ideas we considered in the course, and present it in a
compelling manner.
3) On the final exam, the range of possible grades is broader (including sub-grades like
“B+” and failure grades like “F”). Remember this exercise was just a rough
approximation after a quick read by me; I spend more time reviewing each question
on the final exam. If I sent you a grade like A/B it means I couldn’t really decide
between the two at the time.
4) Whether or not you got an A, B, or C on this exercise says nothing about how you are
likely to perform in the final exam, so do not stress to much about it. Everyone in the
class is capable of getting an A, and everyone is also capable of having a “bad day at
the office” and ending up with a C. Likewise, getting an A on this is no guarantee of
the same on the final. What matters is how you prepare over the remainder of the
course, how closely you listen to what Prof. Hameed and I tell you about what is
important on the exam, and how you perform on the day.
5) All exams, including this one, including the final exam, are an artificial exercise. In
reality, performance as a lawyer is rarely directly connected to performance on an
in-class three-hour exam. Unfortunately, we are required by the Law Society for this
course (as a PCLL-prerequisite) to assess it by way of a final exam worth at least 80%
of the grade. It is also true that despite the artificial nature of exams, law firms etc
do look to exam performance when deciding who to interview, so it is important you
try and do your best. This is also why I try and be very clear to you on what the
expectations for the exam are and give you this opportunity to practice, so you have
the best chance to succeed.
A Grades
Example 1 – this essay has a clear structure, a solid introduction and conclusion, advances a
logical argument that is grounded in an analysis of the relevant materials. It does not simply
copy out material from the course slides, instead it presents it in the author’s own style to
support their argument. Appropriate reference to legal instruments and authorities is made
where relevant.
In this essay I will argue that the exclusion of the ‘overseas judges’ on the CFA from
hearing cases brought under the NSL does not have implication of judicial
independence in Hong Kong. I will begin by discussing the concept of judicial
independence in Hong Kong, then will consider the role of overseas judges in the
CFA and function of NSL, in order to explain my point of view.
Hong Kong’s judicial independence is enshrined by Article 85 of the Basic Law (BL),
which stated that “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.”. The concept of judicial independence is not only structural, but also
about the independence of any given individual judge by mechanisms of
appointment/ removal, administration, financial security, training, promotion,
accountability, immunity, public exposure/ pressure, and more. These mechanisms
can be illustrated by Valente v the Queen’s 3 essential conditions of judicial
independence, which are security of tenure, financial security, and institutional
independence relating to administration. A strong and independent judicial branch is
fundamental to both the separation of power and the rule of law. In the CFA, each
case is heard by panel of 5 members, the Chief Justice, the 3 permanent members,
and 1 non-permanent member. The non-permanent judges are drawn from two
panels, 1 composed of HK judges and 1 composed of judges from other common law
jurisdiction.
Decision of the National People’s Congress on Establishing and Perfecting the Legal
System and Enforcement Mechanism of the Hong Kong Special Administrative
Region to Maintain National Security’ was announced by the NPC on 28 th May 2020,
which authorized NPCSC to draft a National Security Law (NSL) for Hong Kong and
then add it into Annex II of the Basic Law. The NSL implicated new limits on certain
forms of expression. Art 1 of the NSL says it is enacted ‘in accordance with’ PRC
Constitution, Basic Law, and the relevant NPCSC Decision. It relies directly on the PRC
Constitution and power of the NPC to exercise “supervision” over SARs for its legal
authority. Art 62 says NSL shall prevail over local laws where they are inconsistent.
Also, at the moment there is no locally adopted ordinance to implement the
provision of NSL.
CFA concludes that NSL “not subject to review on the basis of any alleged
incompatibility as between the NSL and Basic Law or the ICCPR as applied to Hong
Kong”, but NSL should be interpreted where possible in manned consistent with
rights and values in Basic Law, BORO, and common law.
In my point of view, the concept of judicial independence in Hong Kong does not rely
on the existent of overseas judges. In BL Art 82 stated that CFA is required to invite
judges from other common law jurisdiction to sit, but it does not restrict on hearing
any of the cases. Up to 2010, there are approximately one fourth of the cases where
overseas non permanent judge wrote their lead opinion on. Overseas judge may
provide different opinion in relation to their experience in other common law
jurisdiction, which allows the CFA to concern cases in a broader way. Also, helps
Hong Kong to maintain its links with other common law jurisdictions and enhances
public confidence in Hong Kong’s judicial system. However, I do not think that
oversea judges are playing a significant role when determine the judicial
independence in Hong Kong.
The NSL creates a parallel system for hearing “national security offence” cases, as
discussed above, the NSL is a law directly enacted and applied from the NPC, which
has similar importance as the Basic Law itself. I don’t see how overseas judges’
opinion have any impact when hearing NSL cases, since NSL is not a law within the
scope of common law jurisdiction. Therefore, even overseas judges are excluded in
these cases, the result and interpretation of the NSL will not be significantly
different. Moreover, it was ascertained by the CFA that they will interpret the NSL in
accordance with rights and values in Basic Law, BORO, and common law. Showing
the CFA still has the power to interpret the NSL, therefore the judicial independence
remains intact.
In this essay I have shown that the exclusion of oversea judges have little implication
for judicial independence in Hong Kong. As they are not the core element which
compose judicial independence in Hong Kong. Their opinion does not justify any
difference when interpreting the NSL. The separation of power did not alter
internally or externally without overseas judges contribution on the NSL cases.
However, I do agree linkage of Hong Kong common law system with others are
provided by overseas judges, and judicial independence is benefit from it.
Example 2 – this answer was also very well-written, though came to the opposite conclusion
as example 1. While this answer would have benefitted from provision of more information
demonstrating the author’s knowledge of the current system and whether the NSL had
changed anything (cf Macau, etc) and better direct reference to the relevant
instruments/laws, the analysis was done well enough that I thought it made up for that
shortcoming (I try and be generous in marking where I can).
Introduction
Under the One Country, Two System, the inclusion of overseas judges in the Court of
Final Appeal in Hong Kong has always been an essential element that demonstrates
the high degree of autonomy, symbolizing its commitment to upholding the rule of
law and judicial independence. However, recent development, such as the
implementation of the National Security Law, has raised concerns about the role of
overseas judges in the Hong Kong judiciary. Notably, the exclusion of the oversea
judges on the CFA from hearing cases brought under the NSL may have implication
for judicial independence given (a) the One Country, Two System framework brought
under the Basic law, (b) executive led government in Hong Kong, and (c) the
fundamental human rights outlined in the Basic Law.
Conclusion
I recognize there are constant concerns over what the future role of judiciary in Hong
Kong. The exclusion of overseas judges from participating in cases brought under the
NSL become a challenge to the principles of judicial independence, the framework of
One Country, Two System, the separation of powers, and the protection of
fundamental human rights. Historically, the inclusion of oversea judges in the courts
of HK symbolized the commitment to uphold the role of law and maintain a unique
identity within the One Country, Two system framework. However, as much as
concerns it may be, the Basic law did contain a series of provision that affirm the
principle of judicial independence, albeit the BL does not explicitly use the phrase
“judiciary independent”.
B Grades
Example 1 – This essay had a reasonably good structure and a good introduction but it was
problematic in that it used bullet points. As I repeatedly said in class, do not do this on an
exam unless you have run out of time. Because of the reliance on bullet points, I think it
made it hard to have a clear argument – instead, too much of the essay is devoted to
copying out info from the slides. So it lists out info about the judicial independence, the
overseas judges, etc, but does not shape that info into a particular argument, nor does it
really connect it to the issue of exclusion other than to say at the end the impact is not that
significant because the BL does not mandate their presence and they are only 1 vote out of
5. So the essay never connects its argument to its earlier points about what is required for
judicial independence. It also fails to demonstrate the required knowledge of the status of
the overseas judges under the NSL at the moment in reality.
In this essay I will argue that the exclusion of overseas judges on the CFA
does make some changes as to the judicial independence in Hong Kong,
but it is so slight that does not change the essence of judicial
independence. First I will introduce the concept of judicial independence
and overseas judges on the CFA and then analyse the effect of this
exclusion from both sides.
Judicial Independence
- Judicial independence is ‘a fundamental component of the
doctrine of separation of powers’ (Gerard Carney), which means
independence of the courts from other parts of Hong Kong
government (Article 85, the Basic Law) and also independent
judicial power of Hong Kong courts from the Central People’s
Government (Article 19, the Basic Law). Besides, it is also about
the independence of individual judge (Weng).
- There are three essential conditions of judicial independence:
o Security of tenure: judges are removable only for cause and
should follow legal procedures (Art. 48(6), Art. 89, the Basic
Law)
o Financial security: the salary and pension of judges should
be established by law (Art. 93, the Basic Law).
o Institutional independence: judicial control should be over
the administrative decisions ( HKCFAO s6(2)).
Example 2 – this answer had a reasonable structure, but was quite lacking in detail and
appropriate references to legal instruments. It did not demonstrate sufficient knowledge of
the course materials including the status of the overseas judges under the NSL at the
moment. While it offered one aspect of judicial independence (being free from interference
from people and govt) it didn’t connect that the twin aspects of judicial independence at
play in HK, and it failed to really make a clear argument that connected it to possible
exclusion of the NSL judges. It also seemed to be rather focused on the Chinese-language
aspect of the NSL as being connected to judicial independence, but couldn’t really make a
clear argument as to why that was the case. It only considered one aspect of the Valente
criteria, whereas considering all three would have likely supported the overall argument
(that exclusion would not impact upon judicial independence) because the other factors are
not touched by exclusion at all.
Introduction:
In this short essay I will argue that whether or not the exclusion f the
‘oversea judges’ on the CFA from hearing cases brought under the
National Security Law have implications from judicial independence in
Hong Kong. I will briefly describe the context and background of the
National Security Law and describe the meaning of judicial independence
then consider the influence that exclusion of the oversea judges on the
CFA from hearing case. From my perspective, I think that the exclusion
of overseas judge can be good at remaining judicial independence that
overseas judges cannot use the chines version of authentic well and they
cannot be objectively conditions free from their countries about the
judicial independence and people may also think oversea judges have
some other countries’ opinions although many mainland or Hong Kong
born judges have some inherently bias which will influence the judicial
independence.
Analysis:
National Security Law:
Under Art.23 with the “National Security Bill”, the Hong Kong
Government first tried to introduce laws. Following months of social
unrest in 2019/20 in response to the government’s attempt to introduce a
law that would have allowed extradition of criminal suspects to mainland,
on 28 May 2020, the NPC announces ‘ Decision of the national people’s
congress on establishing and perfecting the legal system and enforcement
mechamism of the hong kong special administrative region to maintain
national security.’ The key texts includes only chines version of law
authentic; English translation for reference only and so on.
Judicial independence:
HK model requires courts to be free from influence from both people and
government. The former CJ and former secretary of justice on the nature
and importance of the independent judiciary in hong kong say that
judiciary must be impartial and courts serve the public interest, but this
does not mean what the public wants or what govt wants. It have
distinction between law and politics. In Article 85: “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.”
The exclusion of the overseas judes on the CFA from hearing cases
brought under the National security law have implications for judicial
independence in Hong Kong because that overseas judges do not belong
to China and the NSL includes that only chines version pf law authentic
and English translation for reference only. So the overseas judges may
not be well done at handling on hearing case on the CFA. If they are
oversea judges, they may not be good at understating the true meaning of
the Chinese version and in law, the definition and understating of each
word is very essential and are not allowed any minor mistakes. So
exclusion the the overseas judges is a helpful way for judicial
independence.
Secondly, the oversea judges have different national background and they
are overseas definatly which means they may serve to their country which
may influences the judicial independence in hong kong. According to the
valente v the queen detrimined the meaning of an independent tribunal
under the Canadian Charter of Rights and freedom:’ independence
connotes not merely a state of minf or attitude in the actual exercise of
judicial functions, but a status or relationship to others, particulary to the
executive branch of govt, that rest on objective conditions or guarantees’.
The overseas judge cannot satisfy these objective conditions as their
inherently do not belong to China, not even hearing cases brought under
the National security law which is a serious and tense question between
mainland China and Hong Kong. So the behavior the exclusion of
overseas judges under nsl do have good implications on judicial
independence.
Applying the oversea judges on hearing cases brought under the NSL
may also let the people question them as overseas rights or other
countries’ opinions which may also influence the judicial independence.
However, many people will also think that this behavior do not have
implications for judicial independence because that overseas judges may
not be influence by the circumstance of the environment of Hong kong
and mainland China and do not be influence by the culture and history of
hong kong. Because many judges borned in Hong Kong or mainland are
exposed to their own culture from very young age and this may develop
them an inherent bias about many problems and connections between
hong kong and mainland China. So they may not as fair as they own think
themselves. And the inherent unfair thinking of judges will influence the
judicial independence in Hong Kong.
Conclusion:
Judicial independence is central to HK’s constitutional model and should
be protected. In this essay I have argued that the exclusion of overseas
judge will help judicial independence that overseas judges cannot use the
chines version of authentic well and they cannot be objectively conditions
free from their countries about the judicial independence and people may
also think oversea judges have some other countries’ opinions although
many mainland or hong kong borned judges have some inherently bias
which will influence the judicial independence.
C grades
Example 1 – in this sample, we see that most of the answer is drawn from just taking
information from the slides to describe some related concepts, but in a very brief and
incomplete way. There is very little in the way of ‘argument’ or ‘analysis’. There is also very
little information provided about the NSL, and the arguments made ‘for’ and ‘against’ aren’t
really connected to the specific question about exclusion. The answer also appeared to run
out of time, since it mentions ‘conclusion’ but then is blank under that heading.
In this brief essay, I will argue that the exclusion of the 'overseas judges' from hearing cases
brought under the National Security Law does not have substantial affects on the judicial
independence of Hong Kong. However, there are some consequences of this exclusion, and
it can mean that the separation of power in Hong Kong may, however slight, move towards
the lesser end of the spectrum.
Part1: Summary of Separation of Power.
Separation of power between the separate branches of Government is a concept that has
been utilized by many of today's democratic countries.
The concept of separation of power is a political theory within the liberal democratic
framework of political ideologies. The traditional doctrine of separation of power was
articulated by the French theorist Montesquieu in the 18th century. The purpose was that
the three branches of the government, the judicial, legislative and executive branches would
provide checks and balances to each other. The idea was that in doing so, no single branch
of government can become too powerful and dominate over the other two. The conception
of this idea later was very well received by the founders of the United States of America.
They sought to construct a new government structure that heavily relies on the idea of
Separation of powers between the executive, judicial and legislative branches.
In more recent years, the application this ideology has evolved into a more practical one: it's
important to test whether a system has genuine separation of power.
Whether a government has a separation of power is crucial to the democracy of the people
as it limits the power of single branches of government. Consequently, an independent
judiciary is one of the main safeguards of the separation of power in a government.
Part3:
Part 4: arguments in favor of
The Hong Kong CFA has made a decision to exclude foreign judges from sitting in cases that
involve the National Security law.
NSL cases are also somewhat special in nature. The courts deal with cases that effects
national security.
There has to be a majority for the case to be decided. However, one out of five is definitely
not inconsequential, and one vote can act as the tie breaker between 3:2 to 2:3.
Additionally, the dissenting judgment may also provide persuasive judgments for future
cases.
Conclusion
Example 2 – this essay is well-written in a linguistic sense, but it does not demonstrate enough
knowledge of the course materials or spend very much time developing an argument grounded in
those materials. It’s only claim is that local judges are better placed to understand conditions of the
nation. That very well may be true, but it is not connected to the question that was asked: whether
exclusion of the overseas judges would impact judicial independence. While there is no ‘minimum
word requirement’, this was much too short an answer for 1 hour, and so it suffered in comparison to
longer answers that could spend more time demonstrating mastery of the material and considering
different angles to possible arguments.
In this essay I would argue that exclusion of the ‘overseas judges' on the CFA does
have implication for judicial independence to a small extent. I will begin by discussing
what is the purpose and concepts of judicial independence, and to what extent the
‘exclusion’ interfered the judicial independence. Then I will consider the reasons for
exclusion of the 'overseas judges’ on the CFA from hearing cases brought under the
NSL and make a conclusion that whether the ‘exclusion’ is acceptable or not.
First, the article 19 of the Basic Law stipulated that HKSAR shall be vested with
independent judicial power, including final adjudication. An independent judiciary is
free from political influence or control and to enforce laws equally. Prima facie, if
there is a political influence in the composition of the CFA, then it is hard to say that
the judicial independence was not challenged. However, when we look at the nature
of such arrangement, whether exclusion of the ‘overseas judges' will have an
implication on the CFA to enforce laws equally is needed to be further discussed.
In Hong Kong, when judges make adjudication, they shall abide by previous cases,
but the NSL is a new law enacted. So for the judges, they do not have relevant
previous cases to refer to, which means they need have a deep understanding of the
NSL. Taking into consideration of the profound influence of the adjudication made by
CFA, it is reasonable to choose appropriate local judges to hear the cases regarding
NSL in the early stage. NSL is a law to solidify the foundation of one country two
system. This law involves the matters regarding conditions of nation and the region,
local judges shall have more knowledge about that then overseas judges. The
purpose of exclusion overseas judges is to better consider the cases and make an fair
adjudication. Additionally, we believe that local judges shall have the same level law
knowledge as overseas judges have. So local judges are more suitable to hear these
cases.