A decade on the bench

PUBLISHED : Friday, 15 June, 2007, 12:00am
UPDATED : Friday, 15 June, 2007, 12:00am

Sitting in his tranquil office in the Court of Final Appeal building, Andrew Li Kwok-nang is a picture of cool calculation and confidence as he looks back on a decade as Hong Kong's top judge.

His enduring faith in the strength of the city's independent judiciary and rule of law reflects a widespread feeling that the legal system has fared better than many expected over the past 10 years.

But the chief justice's understated air of authority and cautious optimism are combined with a recognition that the judiciary has been embroiled in some of the biggest controversies to arise as a result of Hong Kong's return to China.

Even as he prepares to mark the anniversary, fresh worries are being raised about perceived threats to the independence of the judiciary arising from a speech last week by the National People's Congress chairman Wu Bangguo .

Mr Justice Li, a lawyer for 30 years, takes such concerns in his stride, offering reassurance. But he stresses that there is an ongoing need for everyone to play a part in ensuring the survival of the rule of law.

'I was willing to accept the appointment because I was confident the 'one country, two systems' concept would work. But it is important for us in Hong Kong to work hard to implement it,' he said. 'The independent judiciary is a cornerstone of our separate system and I was determined to continue to build on what had been done in the past, to establish a judiciary of even higher standards and of higher quality than before.'

No report card on the judiciary for the past 10 years would be complete without an examination of the events of 1999, when the Court of Final Appeal's first ruling on the Basic Law sparked a constitutional crisis. The repercussions are still being felt today.

The court, led by Mr Justice Li, ruled that it had the right to declare acts of the NPC invalid if they breached the Basic Law. It also greatly extended the scope of the right of abode, prompting fears of a mass influx of mainland migrants. The decision was later overturned by the NPC Standing Committee, which reinterpreted the relevant parts of the Basic Law at the request of the Hong Kong government.

Mr Justice Li would not be drawn on whether he had at the time regarded this case as Hong Kong's equivalent of the landmark US decision Marbury vs Madison, which in 1803 established the right of the Supreme Court to review laws passed by the federal government.

'This was the first case and I saw that it would be a seminal case, so it was very important for us to state really clearly the principles of judicial review, including the power to declare that laws inconsistent with the Basic Law as we interpret it are invalid,' Mr Justice Li said.

Asked if he was surprised by the reaction to the judgment, which came under fire from mainland legal experts, Mr Justice Li said: 'I expected it to be controversial and I expected that we would be going through some controversial times.

'A lot of elements were in play. We had the seekers of the right of abode and, for them, there were tremendous human dimensions because it involved their own future and the future of their children. Then we had the Hong Kong legal community, which was dedicated to defending the values of our system as they saw them. The mainland drafters of the Basic Law saw the interpretation of the Basic Law in quite a different way under their different system. Then we had the Hong Kong government, which was already facing many problems arising from the Asian financial crisis and who found it difficult to cope with the consequences of the judgment. So those were challenging times. It was an unforgettable experience.'

Beijing's overturning of that ruling has, ever since, led to concerns that the integrity of Hong Kong's legal system and the standing of the courts has been irreparably damaged. The top court later upheld the validity of the interpretation by the NPC Standing Committee.

Mr Justice Li said Hong Kong must recognise, without reservation, that Beijing had ultimate power to interpret the Basic Law and such interpretations were binding on the courts. This, he said, was part of our legal system. But he believes the power should be used sparingly.

'Under one country, two systems, the two systems are very different, including the legal systems. In matters relating to the interpretation of the Basic Law the two systems may, in a given situation, come up with very different interpretations. That being so, I think many people would accept that consideration should only be given to the exercise of the Standing Committee's power of interpretation in very exceptional circumstances. This is what I understand to be the position of the Hong Kong government and the thinking in Beijing.'

Many questions have been raised about what this situation means for the standing of the top court. Mr Justice Li has a clear picture of the legal position. He pledged that the courts would continue to call cases as they saw them, including those involving sensitive issues where the views of Beijing were believed to be known. Judges would not worry about the possibility of having their decisions overturned by Beijing, he said. The only restriction would be if such an interpretation had been made before a case was heard, in which case it would be followed.

'The courts of Hong Kong are very conscious of the high expectations of the community that they, functioning under our separate system, will exercise vigilance in defending the rights and freedoms of individuals. We will continue to do so. We have no doubt about that,' he said.

There was evidence to show that the court had, since the highly charged days of 1999, continued to uphold human rights in sensitive cases, he said. An example was another right of abode ruling in 2001 in which the court held that all Chinese nationals born in Hong Kong were permanent residents, including those born to visitors.

This ruling has been a source of controversy again recently, with Hong Kong's health system burdened by large numbers of pregnant mainland women coming to the city to give birth. There have been calls for the NPC Standing Committee to give an interpretation that effectively overturns that judgment.

But Mr Justice Li said he still believed the court was right to rule the way it did because it was in accordance with the meaning of the Basic Law. 'The wording of the Basic Law was clear to us. We can't give an interpretation - however desirable it might be from a practical point of view - that the plain language [of the law] will not bear.'

The constitutional controversies have, perhaps, overshadowed the gradual development of the Court of Final Appeal, which aspires to be ranked alongside the most highly regarded courts in the world. This was one of Mr Justice Li's top priorities when he took the job.

'As far as the quality of the jurisprudence is concerned, the court's reputation depends on the quality of its judgments. That is best judged by the legal community and the public. So far as my expectations are concerned, I would say it has in large measure been fulfilled. I would make a strong claim that the court has made good progress in establishing an international reputation. Ten years is a short time in the life of a final appellate court, so we must continue to work hard to meet the challenges involved.'

One feature of the past 10 years has been a significant growth in the number of judicial review cases, which challenge the government or other public bodies. These often involve political as well as legal issues. Mr Justice Li said the development was a healthy one, but he warned that the courts were not a panacea for society's problems.

'To me the growth of judicial review is a great demonstration of confidence in the legal system and the courts. But that said, I wanted to emphasise that while a lot of court decisions in this area have tremendous political, economic and social repercussions, the courts can only define the limits of legality. The courts cannot solve these political and economic problems,' he said.

'With the limits of legality having been defined, the search for appropriate solutions for these problems can only be found through political dialogue and through the political process, where compromises have to be struck and found. So ultimately, once the courts have defined the limits of legality, the citizens have to look at the political process for solutions to these usually difficult and complex problems.'

One decision by the Court of Final Appeal in 2004 resulted in the original timetable for The Link Reit listing to be abandoned. It was seen as an embarrassment for the then chief executive, Tung Chee-hwa, and it came just before he received a public dressing down from President Hu Jintao . Asked whether he thought the court had played a part in the events that led to Mr Tung's resignation, Mr Justice Li simply chuckled. 'I must refrain from commenting on political matters,' he said, adding that

Mr Tung had been conscious of the fundamental importance of the Basic Law to Hong Kong.

Looking ahead, the chief justice sees the impending civil justice reforms - intended to make the system more accessible and efficient - as the judicial system's most important project. We could expect major changes, he said. The reforms have been seven years in the making, but Mr Justice Li said it was necessary to take time. 'One only gets one major opportunity in a generation to reform the civil justice system on a scale of this kind. It is therefore very important to get it right,' he said.

The chief justice, who in what little spare time he has enjoys playing tennis, reading and travelling, has more than five years to go before he reaches the retirement age of 65, and even then an extension of his contract is possible. But he does not expect to still be in the job 10 years from now. 'That would be too long,' he said. Asked what he intended to do when he was no longer chief justice, he gave a typically cool and calculated response: 'I will enjoy myself.'