Why Beijing saw fit to interpret Hong Kong’s Basic Law
Henry Ho says the NPC Standing Committee was forced to exercise its power to avert a dangerous precedent in Hong Kong, in a decision it did not take lightly
NPC interpretation adds nothing new to Hong Kong law, and is wholly unnecessary
Does interpreting the Basic Law go against the rule of law? Hong Kong’s legal system, inherited from the British, is based on common law. While Article 8 of the Basic Law expressly provides that common law shall be maintained, its status is lower than that of the Basic Law. If any conflicts arise between the two, the Basic Law shall prevail.
That is probably the source of tension in recent years between Hong Kong and the mainland over the Basic Law. For many Hong Kong people, common law is the cornerstone of the city’s rule of law. Not only is it diametrically different from civil law, it also comes with its own set of reasoning, practices and methods of interpretation. Further, it is supported by a set of cultural norms and a value system. The key feature of the common law system is that only judges have the right to interpret the law; this makes it vastly different from both civil law and the mainland’s legal system.
This is what happens when you breach the Basic Law
The Basic Law is the constitutional document that guides the implementation of the “one country, two systems” policy. So, naturally, it is designed to accommodate both systems. Legal professionals in Hong Kong who have been trained under the common law system may find it difficult to accept the provision giving the legislature power to interpret the law. Still, most of the power of interpretation remains with Hong Kong courts. Thus, from Beijing’s point of view, a rejection of a National People’s Congress Standing Committee interpretation of the Basic Law by Hong Kong amounts to a denial of the nation’s sovereignty over the city.
The completely different ways of thinking of the two sides explains why Basic Law interpretations by the NPC are seen in Hong Kong as a major threat or, at the very least, a necessary evil. This is true even of Hong Kong officials and pro-establishment politicians, a sizeable number of whom accept such interpretations but believe they compromise the independence of the city’s judiciary, and even undermine the rule of law.
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However, the Standing Committee’s ability to interpret the Basic Law is part of the city’s legal system. It cannot be described as destroying the rule of law. As for judicial independence, it is secure as long as judges can make rulings of their own free will. Whether or not that ruling is later overturned by a higher court or by the NPC is another matter altogether, and cannot be said to affect judicial independence.