Reason for confidence in courts' independence
The chief justice's strong defence of the independence of Hong Kong's judiciary provides much-needed reassurance at a time when fresh concerns are being raised that this cardinal principle of our legal system is under threat. These worries were prompted by a speech last week by National People's Congress chairman Wu Bangguo , in which he said Hong Kong should not copy the separation of powers principle from other parts of the world. He was referring to the principle that the executive, legislature and judiciary should be separate and, therefore, able to act as a check and a balance on the powers of each other.
The fears that have been expressed are motivated by an understandable sensitivity about the independence of the judiciary in Hong Kong and a determination to protect it. In this case, however, they may have been overstated.
As Chief Justice Andrew Li Kwok-nang points out, the Basic Law clearly provides, in several of its articles, for an independent judiciary. It also puts in place safeguards, such as security of tenure for judges and their appointment on the recommendation of an independent commission. Most important, perhaps, is Article 85, which says the courts are free to rule on cases without interference.
There is no doubt that the independence of the judiciary lies at the heart of Hong Kong's separate legal system and without it there would be no rule of law. Further reassurance is provided by the fact that the chief justice has studied Mr Wu's speech and does not believe it in any way questioned the independence of the judiciary.
Since the handover, there have been several occasions when concerns have been raised about the strength of the rule of law. The biggest controversy was in 1999 when a landmark right of abode ruling by the Court of Final Appeal was effectively overturned by the NPC Standing Committee's interpretation of the Basic Law. The power of Beijing to make such interpretations, which are binding on the courts, is now almost universally recognised. As Mr Justice Li says, it is part of our legal system and we must accept it.
However, it is also true that such interpretation should, in future, be delivered only in the most exceptional circumstances. Every time an interpretation is made, it is bound to raise questions about confidence in Hong Kong's separate legal system. The reason for this is that Beijing's interpretations are, understandably, made in accordance with the mainland legal system, but they are implemented in Hong Kong, where the system is very different.
There is a need for restraint on all sides, and it is heartening to see emerging signs of a fragile consensus to let sleeping dogs lie. The secretary for justice, solicitor-general and now, chief justice have all said Beijing should use the power of interpretation sparingly. Mr Justice Li says he understands this is also the view of the central government.
The judiciary can take credit for recovering strongly from the crisis that engulfed it in 1999. The courts at first appeared a little cowed by Beijing's use of the power of interpretation. But they have since continued to declare the law as they see it, even if this may not meet with approval from the Hong Kong government or Beijing.
We are still in the relatively early days of the 'one country, two systems' arrangement. New problems will, no doubt, emerge in the future. But we can take heart from the chief justice's assertion of the independence of the judiciary as a pillar of Hong Kong society, and the willingness of the courts to make that a reality.