Rule of law's health a matter of interpretation

PUBLISHED : Friday, 29 June, 2012, 12:00am
UPDATED : Friday, 29 June, 2012, 12:00am


To have faith in the principle of 'one country, two systems' before the handover was to take a leap in the dark. Since then the city has sought four interpretations of the Basic Law from Beijing. Legal experts agree the rule of law remains intact and is something Hongkongers can be proud of. However, they are divided on the significance of those interpretations on the judicial independence of Hong Kong.

As Sir Anthony Mason, a non-permanent judge of the Court of Final Appeal and former chief justice of the High Court of Australia, summed up in an article last year: 'For the future much may depend upon the frequency, the subject matter and content of [National People's Congress] Standing Committee interpretations and the circumstances in which they are sought.'

The most controversial was in 1999, when the Standing Committee effectively overturned the first landmark human rights ruling delivered by Hong Kong's top court.

In January that year, the Court of Final Appeal ruled against the government, holding that many more people were entitled to the right of abode than the government claimed. More importantly, the court sought to assert its own powers, ruling that it had the power to interfere with decisions of the committee that were inconsistent with the Basic Law.

That provoked a backlash from legal experts in Beijing and culminated in the Hong Kong government asking the committee to interpret parts of the Basic Law already ruled on by the court - a move that led to hundreds of lawyers taking to the streets. The committee overturned the judgment, slashing the number of mainlanders eligible for right of abode by 1.4 million to 27,000.

That interpretation was the first by the Standing Committee. Since then, the government has made only two other requests, and the court has done it once, all of which were less controversial than the 1999 case. Mason wrote that the interpretations 'have been absorbed by the Hong Kong system of government without difficulty'.

While the 1999 case was thought of as water under the bridge, it was revealed much later that the city had come close to a crisis then: all five judges of the top court had contemplated resigning after their ruling was overturned, according to a US diplomatic cable released by whistle-blowing website WikiLeaks last year.

Basic Law interpretations aside, other challenges lie ahead, such as making justice more accessible to the man in the street, and improving the effectiveness of the work of the judiciary, legal experts say.

Bar Association chairman Kumar Ramanathan SC says the bar recognises 'there is a sandwiched middle class who simply are not able to have access to court because of costs'. He calls for wider access to justice through the expansion of legal aid. 'Civil justice reform is pointless if average citizens' access to justice is denied.'