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Hong Kong Basic Law

On the road to 2047, Hong Kong’s rule of law must remain robust and strong

Cliff Buddle says it’s time for debate to begin in earnest about what will happen to the Basic Law and ‘one country, two systems’ after the end of 50 years of no-change

PUBLISHED : Monday, 28 December, 2015, 7:12pm
UPDATED : Monday, 28 December, 2015, 7:12pm

When the top court returned to its spiritual home in the heart of Central this year, Chief Justice Geoffrey Ma Tao-li was keen to stress the symbolic importance of the move. “The significance lies in what the building represents to the community. And what is represented is the rule of law in Hong Kong,” he said.

The Court of Final Appeal had just relocated to the former Legislative Council building, which for most of its history had been the city’s Supreme Court. Ma had a point to make. The year began with the top judge defending the rule of law amid claims it had been undermined by the Occupy pro-democracy protests of 2014.

Judicial discipline is needed to ensure the common law is in good shape when the time comes to decide whether it should continue after 2047

In September, the chief justice spoke publicly again, this time in support of judicial independence after a senior official from the central government’s liaison office argued that the chief executive’s status transcends the judiciary.

The year ended as it had begun, with questions being raised about the future of the rule of law. And, this time, the judges came under fire from one of their own.

Retired Court of Final Appeal judge Henry Litton pulled no punches when he accused the judiciary of lacking legal discipline in handling certain cases. Much of the debate, which followed his speech at the Foreign Correspondents’ Club, focused on concerns about judicial review proceedings being abused.

But it is the context of Litton’s call for judicial rigour which is more important and which has been largely overlooked. He warned that discussion must soon begin on what will happen when the 50-year lifespan of “one country, two systems” ends in 2047.

READ MORE: The case for extending Hong Kong’s 2047 deadline

What Hong Kong has to offer, when those discussions begin, is the rule of law, said Litton. But if the common law system is seen to be “flabby, slow, costly, pedantic and obscure”, people will ask why it should be put forward as a model for a global financial centre, he added. His point is that judicial discipline is needed to ensure the common law is in good shape when the time comes to decide whether it should continue after 2047.

Whether the judiciary is “sleepwalking towards 2047,” as Litton alleged, is open to question. There is certainly no room for complacency. But his call for minds to focus on 2047 is timely.

He pointed out that we are at roughly the halfway point between the signing of the Sino-British Joint Declaration in 1984 and the 2047 deadline. It may seem a long way away, but concerns are already being raised about the legal status of land leases and mortgages which extend beyond that date.

There are other fundamental questions which need to be answered. If Hong Kong’s separate system lasts for only half a century, what happens when that time is up? As with many issues which have arisen since the 1997 handover, the Basic Law, which came into force at that time, does not provide a clear answer. It is open to interpretation. Article 5 states that the socialist system and policies shall not be practised in Hong Kong, and the previous capitalist system and way of life shall remain unchanged for 50 years.

READ MORE: Outgoing Hong Kong Legco chief warns ‘one country, two systems’ will fall apart if Beijing keeps on interfering

One view is that the “one country, two systems” arrangements, which formed the basis for Hong Kong’s return to China, are merely transitional and that the city will automatically be incorporated into the mainland system in 2047. The protection the Basic Law offers for core features of Hong Kong life would be swept away. This would include guaranteed rights and freedoms, the common law, and the Court of Final Appeal. No wonder former chief justice Andrew Li Kwok-nang has stressed the need to preserve the rule of law and independent judiciary after 2047.

The Basic Law does not rule out the continuation of ‘one country, two systems’ after 2047. Deng Xiaoping was quoted in the 1980s as saying that the arrangements could last a second 50 years

But the Basic Law does not rule out the continuation of the “one country, two systems” framework after 2047. Deng Xiaoping (鄧小平) was quoted in the 1980s as saying that the arrangements could last a second 50 years.

If the model is seen as successful, why change it? Some have suggested the central government should provide reassurance by making this clear, perhaps through an amendment of Article 5 of the Basic Law or through a decision of the National People’s Congress.

The more likely scenario is that 2047 will be seen as an opportunity to update and make amendments to the Basic Law. Allowing the renminbi to become Hong Kong’s currency, denying the children of mainland visitors the right of abode, and ending the small house policy have all been cited as possible changes that could be introduced.

READ MORE: Hong Kong’s small-house policy for indigenous villagers is outdated and unfair

READ MORE: Hong Kong Chief Justice sets out firm stance on rule of law and judicial independence

But it would be a case of stick or twist for Hong Kong. There may be some changes Hongkongers would like to see to the Basic Law, but once that process begins, there is no telling where it will end.

Mainland scholars have argued that the presence of foreign judges on the Court of Final Appeal should end after 2047. There are also concerns that the power of Hong Kong courts to have the final say in cases could be removed (their judgments have not always found favour with Beijing.)

We can expect the debate to intensify as the deadline draws closer. Some have suggested there should be formal discussions of the kind that led to the Joint Declaration and Basic Law, this time directly between Hong Kong and Beijing.

China has changed dramatically since the signing of the Joint Declaration. It is reasonable to think that the differences between the mainland system and the separate one in Hong Kong will narrow further before 2047. But the need to protect and maintain the rule of law and the city’s common law system, including judicial review, must remain a priority.

The colonial Supreme Court building ran into trouble with subsidence in the late 1970s. If, as the chief justice says, it now symbolically represents Hong Kong’s rule of law, it is to be hoped it is built on strong foundations and will stand firm until 2047 and beyond.

Cliff Buddle is the Post’s editor, special projects