Hong Kong's judicial independence is here to stay - as long as 'one country' and 'two systems' are both fully recognised

Andrew Li believes Hong Kong's judicial independence and rule of law will thrive beyond 2047

PUBLISHED : Thursday, 24 September, 2015, 4:58pm
UPDATED : Monday, 14 November, 2016, 3:46pm

This week will mark the official opening of the new premises of the Court of Final Appeal at the building which housed previously the Legislative Council and originally the Supreme Court. This is an event of great significance.

This will be the court's permanent home. The renovations are of the highest standard. The community can be justly proud of it. With its central location, this historic monument will stand as a strong symbol of the continuing vigour of the rule of law with an independent judiciary in Hong Kong as part of China under "one country, two systems". Under the rule of law, no one, however high his position, is above the law.

These are challenging times for our community. We are undergoing rapid changes - politically, socially and economically. In the process of change, the engagement and involvement of our young generation will be essential. In these uncertain times, it is all the more important that the rule of law with an independent judiciary should remain an unshakeable foundation of our society.

This is an appropriate moment to reflect on the court's progress over the last 18 years. The court must essentially be judged by the quality of its jurisprudence. It can confidently be claimed that its judgments are widely respected both within and outside Hong Kong where they are increasingly cited. The court has earned its place among final appellate courts around the globe. I believe that, with successive generations of judges, it will go from strength to strength.

The composition of the court has the unique feature of having an overseas judge. The court is made up of five judges. Four are Hong Kong judges: the chief justice and three permanent judges. (Where one of them is unavailable, his place is taken by a non-permanent Hong Kong judge chosen from the panel of retired Hong Kong judges.) The remaining judge is a non-permanent overseas judge selected from the panel which has consisted of eminent jurists from Australia, New Zealand and the United Kingdom. These are the three jurisdictions with whose legal traditions Hong Kong has the closest affinity. Although the remaining judge can be a non-permanent Hong Kong judge, a convention has been established since 1997 that an overseas judge would be selected.

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From time to time, reservations have been expressed by some commentators, including academics in mainland China, as to the presence of the overseas judge. One mainland academic expressed the view that all judges of the court should be Chinese nationals with the right of abode in Hong Kong. Recently, another opined that the feature of the overseas judge should be regarded as a transitional arrangement for 50 years. I understand these views. But I respectfully do not agree with them.

It is important to emphasise two matters. First, the overseas judge swears the same judicial oath as any Hong Kong judge: To uphold the Basic Law, to bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China and to administer justice without fear or favour. When he sits, he is discharging his duties as and only as a Hong Kong judge in our own times and circumstances. Secondly, he is one member of a collegiate court. The five judges may end up in agreement or disagreement. Each judge is independent and makes an essential contribution. No judge enjoys any special position in judicial decision-making.

In the governance of Hong Kong, the sovereignty of China must always be fully respected ... 'one country' as well as 'two systems' are essential and integral parts of the formula

The arrangement of the participation of an overseas judge cannot be regarded as any infringement of China's sovereignty or Hong Kong's autonomy. In fact, it is by the exercise of sovereignty (by permitting this in the Basic Law) and autonomy (by making the arrangements) that he is invited to sit.

It is in the best interests of Hong Kong as part of China under "one country, two systems" to have an overseas judge on its final appellate court. First, his participation ensures that the court benefits from comparative perspectives and experience. Secondly, it is an arrangement which has gained the confidence of the public as well as that of the international community. Thirdly, it is conducive to enhancing confidence in the independence of our judiciary. I believe that the participation of the overseas judge should be regarded as a lasting feature of the court. It must be acknowledged that the arrangement is a unique one. But so is the great concept of "one country, two systems".

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In reflecting on the past 18 years, a special feature of the new order should be referred to. As the court had held, the Standing Committee of the National People's Congress has the plenary power to interpret the Basic Law and any interpretation is binding on the courts in Hong Kong. This power is expressly provided for in the Basic Law and reflects the provision in the Chinese constitution empowering the Standing Committee to interpret laws.

Under the Basic Law, our courts are authorised to interpret it. But the court has the duty to refer the interpretation of the excluded provisions to the Standing Committee. Those provisions are those concerning affairs which are the responsibility of the central government, that is, essentially defence and foreign policy and those concerning the relationship between the central authorities and the region.

Since 1997, the Standing Committee has issued four interpretations: one, in 1999, to override the court's judgment in the right of abode cases; two, in 2004, to lay down the process for political reform; three, in 2005, to deal with the length of the chief executive's term; and four, in 2011, upon a judicial reference by the court, to deal with the doctrine of state immunity. The second and third interpretations were issued in the absence of any legal proceedings.

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The right of abode episode was very controversial. I believe that it provided a salutary experience in the formative years of the new order. The episode has led to a consensus in Hong Kong and, I believe, also in Beijing that apart from an interpretation of an excluded provision made on a judicial reference by the court, the Standing Committee's power to interpret should only be exercised in the most exceptional circumstances.

In any event, as I have publicly stated, the Standing Committee should refrain from exercising its power to override a court judgment in Hong Kong, especially one of the Court of Final Appeal. Although it would be legally valid and binding, such an interpretation would have an adverse effect on judicial independence in Hong Kong. I believe that this view is widely shared in Hong Kong. However, my understanding is that it is not shared by the authorities in Beijing. They consider that an interpretation even after a court judgment could be justified in very exceptional circumstances and this should not adversely affect judicial independence in Hong Kong.

The Basic Law contains no sunset clause whereby it will automatically cease to have any effect on June 30, 2047. But it provides that the previous capitalist system and way of life shall remain unchanged for 50 years. This reflects the 1984 Joint Declaration in which China stated that its basic policies regarding Hong Kong will remain unchanged for 50 years.

We are already past the one-third mark of the 50 years. The future after 2047 will be an internal matter for China. I believe that it will have to be settled in the early 2030s. Extensive discussion and consultation will be required. The coming 10-15 years in the run-up to those discussions will be very important.

The destiny of Hong Kong is and will forever be as part of China. In the governance of Hong Kong, the sovereignty of China must always be fully respected. It is always important to remember that "one country" as well as "two systems" are essential and integral parts of the formula. So long as this is fully recognised, I have every confidence and expectation that Hong Kong as part of China will continue to enjoy our own system and that the rule of law with an independent judiciary will continue to thrive in the coming years and beyond 2047.

The honourable Andrew Li Kwok-nang was first chief justice of the Court of Final Appeal from 1997 to 2010