188 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
any feeling that it needs to have regard to the views or wishes of the Executive
in reaching its decisions.” The right to an independent and impartial
tribunal is an absolute right and an aspect of fair trial rights.22
Judicial independence requires the judiciary to be seen to be independent.
In R. v. Valente,23 Le Dain J. said the test for a tribunal’s independence
includes whether the tribunal may reasonably be perceived as independent,
with the perception being whether the tribunal enjoys the essential
objective conditions or guarantees of judicial independence. The objective
perception test for judicial independence has been adopted by common law
courts and the European Court of Human Rights.24
NSL AND JUDICIAL INDEPENDENCE
Will the NSL affect common law judicial independence in the HKSAR? This
question is examined from several different perspectives below.
Designation of Judges to Handle NSL Cases
In accordance with art. 88 of the Basic Law,25 judges and magistrates are
appointed by the CE on the recommendation of the Judicial Officers Recommendation
Commission, which is chaired by the Chief Justice of the
HKSAR. The NSL requires the CE to designate members of the judiciary to
handle NSL cases. The designated judges come from all levels of the judiciary:
from the magistracy to judges of the Court of Final Appeal, and deputy
judges and recorders. Before making a designation, the CE may consult the
Committee and the Chief Justice of the Court of Final Appeal. Apart from
a judge not being eligible for designation if they have made any statement
or behaved in any manner endangering national security,26 the CE’s criteria,
policy and process for designating judges are unknown.
Security of Designation
In Valente,27 Le Dain J. said security of tenure is regarded as the first of the
essential conditions of judicial independence. In Chief Justice of Trinidad and
Tobago v. The Law Association of Trinidad and Tobago,28 Lady Hale, giving the
opinion of the Privy Council, said that because security of tenure is the
principal way of securing judicial independence, a judge may be removed
from office, or otherwise penalized, only for inability or misbehaviour, and
not because the government does not like the decisions the judge makes.29
Security of tenure forms part of the objectively perceived test for judicial
independence.30
The designation is for one year.31 The judge has no security that their designation
will be renewed for another one-year term. Having a short-term
designation allows the CE to assess the judge’s handling of NSL cases before