The Hong Kong Court of Appeal’s decision in August 2017 to overrule a magistrate’s judgment ordering community service in the case of an illegal demonstration and to jail three young men – Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang – drew a firestorm of protest, with charges both locally and overseas that judges had kowtowed to Beijing.
Things calmed down this year after the Court of Final Appeal ruled in February that the appellate court had erred in retrospectively applying sentencing guidelines, and the three young men were released.
Many are still apprehensive that China, directly or indirectly, may use local judges to achieve its goals in Hong Kong. If the National People’s Congress Standing Committee issues an interpretation of the Basic Law, Hong Kong’s constitutional instrument, judges have no choice but to apply that interpretation.
This is what happened in the so-called oaths saga, when Hong Kong charged six legislators with having improperly taken their oaths of office. While the first case was being heard, Beijing jumped the gun with an interpretation and the judge pronounced the defendant guilty. Subsequently, he said he would have ruled that way even without an interpretation but Beijing evidently wanted to have certainty.
The question of exactly what kind of constitutional system Hong Kong has is a matter of dispute, with Beijing insisting that it is an executive-led system and Hong Kong’s judges saying there is a separation of powers, with each branch monitoring the others.
A recently published paper by P.Y. Lo and Albert H.Y. Chen, “The judicial perspective of ‘Separation of Powers’ in the Hong Kong Special Administrative Region of the People’s Republic of China”, traces the Chinese position back to then paramount leader Deng Xiaoping, who said in 1987 that “it would not be appropriate for [Hong Kong’s system] to copy those of Britain and the United States with, for example, separation of the three powers”.
Chinese leaders since 1997 have insisted that Hong Kong has an executive-led system. They have on several occasions called on the judiciary to support the executive.
In September 2015, Zhang Xiaoming, director of the Central Government Liaison Office, gave a speech on the 25th anniversary of the Basic Law in which he, while acknowledging judicial independence, said it did not mean that separation of powers could be applied to Hong Kong in its entirety. Alarmingly, he described the chief executive’s legal position as “transcending” the executive, legislature and judiciary.
The Chen-Lo article says the Basic Law itself in numerous articles “impress upon scholars and lawyers trained in the Western law tradition as reflecting or implying an institutional and functional separation of powers”.
In their paper, they point out that judges “have somehow been oblivious to the Chinese discourse” of an executive-led government, with only one explicit mention of “executive-led government” in a judicial opinion in 21 years.
That was an opinion by Justice Michael Hartmann, who described at one point that “Hong Kong has an executive-led government” in affirming the constitutionality of a rule that restricted the right of legislators to propose an amendment to a bill where the proposed amendment had a charging effect on the public revenue.
Hartmann also said that it was by no means unusual in other jurisdictions that “the executive played a dominant role in proposing bills dealing with public expenditure”.
“Thus,” the two authors wrote, “the judge perceived no conflict between ‘executive-led government’ and ‘separation of powers’.”
Actually, the quarrel isn’t between an executive-led system and separation of powers. It is between two visions of executive-led systems.
In one, the executive does indeed lead, but it is also accountable and is checked and monitored by the other branches of government. In the other model, the executive leads and the other branches have no choice but to follow, meaning that there is no rule of law.
Lo and Chen seem to view the situation where judges and lawyers are largely oblivious to China’s views with some concern.
For one thing, they point out that the matter has gone beyond academic debate and “into the education of secondary school students”.
Who would want to deprive Hong Kong of rule of law? No one, but China may do so not deliberately but unthinkingly. Beijing may, through interpretations of the Basic Law, seek to achieve short-term goals without realizing that cumulatively its actions may weaken rule of law in Hong Kong beyond repair.
There are many cases in the judicial pipeline relating to sensitive political issues, such as Hong Kong independence.
But China must not pre-empt the Hong Kong judiciary. Doing that will bring ruin to Hong Kong and China as a whole will suffer too.
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