Intemperate interpretation

November 20, 2019 18:02
The concept of judicial independence and the separation of powers, which is one of Hong Kong’s core values, seem inimical to the political thought process of the central authorities in Beijing, the author says. Photo: Bloomberg

Who authorized Zang Tiewei to assert that Hong Kong's High Court has no power to rule on the constitutionality of Carrie Lam's executive order prohibiting face masks?

Of course, it was to be expected that all the Hong Kong sycophants would weigh in behind Zang, who is a spokesman for China's National People's Congress Standing Committee (NPCSC), but this sort of knee-jerk reaction is common amongst the mentally myopic.

The first point to make is that Zang’s reading of the Basic Law ignores the last 22 years of judicial decisions in Hong Kong. Which begs the question how come the NPCSC allowed what it now regards as unconstitutional to be the norm for so long?

The next point is that, taken at face value, Zang is claiming that the common law process by which individuals can challenge the validity of government decisions by reference to the Basic Law, is outside the powers of Hong Kong’s judiciary to determine.

Logically, that emasculates the Basic Law as a protection for Hong Kong’s citizens.

As I have said, that interpretation does not accord with 22 years of Hong Kong’s judicial history, nor does it follow what is set out in the Basic Law.

Article 158 explicitly commands the Standing Committee of the National People’s Congress to “authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.”

Under the Basic Law the Central government reserves to itself the exclusive power to handle foreign relations under article 13 and the defense of Hong Kong under article 14; therefore it follows that matters falling outside those two areas are within the autonomy of the Region.

The genius of the concept of two systems is the recognition that Hong Kong’s common law system and the mainland’s legal system are mutually incompatible, which is why the two systems exist in parallel but exclusive of each other.

Zang and his apologists in Hong Kong are hell bent on destroying the beauty of these two systems existing side by side in mutual respect.

Zang’s mistake is to judge Hong Kong’s judicial system by mainland thought processes.

This is further evidenced by one of Hong Kong’s pro-Beijing figures saying that there is no need to waste time going through the judicial process of examining the legal integrity of Carrie Lam’s decision, the NPCSC will just tell the court how to decide.

This, of course, is the mainland way of thinking and behaving because for them, it is the Communist Party that tells the judges how to decide.

The very concept of judicial independence and the separation of powers is inimical to their political thought process.

What Carrie Lam tried to do was bypass the Legislative Council, the law making body, and rule by direct order, emulating the mainland system.

This is not dissimilar to President Donald Trump bypassing the US legislature and ruling by executive order, with the critical qualification that his actions are challengeable in the US Supreme Court.

The common law machinery by which the governed can challenge the validity of the acts of the administration or the executive is the single most important process by which governments can be prevented from over-reaching their powers.

This legal process is called ‘Judicial Review’.

It is a process confined within strict legal limits. Some would argue that the limits are too constricting but this judicial straitjacket avoids the risk of Judicial Review becoming a political tool.

Perhaps because I am a lawyer I will be accused of special pleading or having a vested interest but few, if any, would disagree that Judicial Review is the citizen’s most important safeguard against abuse of power by the organs of government.

As such, it is both the first and the last line of defense of the common law system.

If Zang really does speak for the NPCSC – and it remains to be seen whether or not this is so – they will be inflicting a mortal wound on Hong Kong’s internationally admired judicial system.

Without a judiciary that determines issues against established common law legal criteria, wholly independent of the executive and administration, Hong Kong will lose its unique status in the world of international commerce.

Teresa Cheng can forget about marketing Hong Kong as an international center for alternative dispute resolution.

Judgments of Hong Kong’s much admired Court of Final Appeal will no longer have any relevance in other common law or even civil law jurisdictions, let alone be held persuasive.

Before the NPCSC kills the goose that lays the golden eggs of commercial intercourse, it would be wise to contemplate the disaster that any rash step taken now, would visit upon not only Hong Kong but the image of China itself, in the international arena.

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King's Counsel