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Basic Law

Beijing should have left Hong Kong courts to rule first on oath-taking lawmakers

Jessica Fernando says all who have a stake in upholding Hong Kong’s rule of law – including the central government – should ensure procedures are adhered to. In this light, the NPC interpretation was an overreaction

PUBLISHED : Tuesday, 15 November, 2016, 4:01pm
UPDATED : Wednesday, 30 November, 2016, 10:57am

Hong Kong is a miracle in many ways. Its judiciary is world-class and its government systems work. With a transport system that is among the world’s best, it is home to more than 7 million people, who all live, work and play close together without chaos.

Hong Kong’s independent judiciary makes it a safe place to invest in. People know that any disputes can be dealt with fairly through the courts. A strong anti-corruption regime prevents government officials from overstepping their boundaries and stops parties abusing their influence. Contracts are honoured. On the whole, disputes can be settled without fear of unfairness and the need to make undue compromises.

The Basic Law is the foundation of Hong Kong’s legal system. Taking the oath under Article 104 of the Basic Law is part of that structure. The legal furore over legislators’ oath-taking stems from a key procedural point: Hong Kong courts should be the ones that refer matters to the National People’s Congress Standing Committee. Respect for procedure must come from every side.

Why Beijing saw fit to interpret Hong Kong’s Basic Law

Hong Kong has to internalise a deep contradiction: we have the separation of powers and the rule of law but they’re not boundless; we have access to universal principles but within limits. We cannot be a nation-state, but we have to govern our own affairs within a framework that respects the law. So far, Hong Kong’s institutions have never required the resolution of its foundational paradox.

The integrity of Hong Kong’s legal system is its greatest asset, both to the people who live here and to the government in Beijing. Undermining Hong Kong’s judiciary by rushing to deliver verdicts by the NPC Standing Committee or by being seen to exercise any influence over the city’s government officials is tantamount to declaring that Hong Kong cannot be trusted.

The behaviour of callow and emotional young people in the Legislative Council could have been dealt with by the judiciary. The courts could have called for an interpretation, if necessary. They could have also simply ruled that these candidates are disqualified under Article 104 and prevented them from retaking the oath.

How Hong Kong’s courts interpret Beijing’s interpretation of the Basic Law may yet surprise

In standing up for Hong Kong’s legal system, its judicial independence and its capacity to operate as a global example under the rule of law, we also celebrate the importance of Hong Kong to Beijing.

A judiciary, legislature or government department that has to bow down to one demand will have to bow down to others

Changing Hong Kong culture will be detrimental to us all. In many Asian countries, bribery, corruption, bending the rules as much as we can, distrust of the police to carry out fair and effective investigations, and all other kinds of underhand behaviour are normal.

However, in Hong Kong, there are standards that will be upheld by its citizenry as much as its government officials. People have internalised anti-corruption messages, they largely respect the law, and they understand that Hong Kong has a unique history and is a safe place to be.

If Hong Kong legal institutions are not seen to be independent on any issue, that will impact on everything else. A judiciary, legislature or government department that has to bow down to one demand will have to bow down to others. Trust is hard to gain and easy to lose.

It is therefore in all our interests, including the government in Beijing, to support Hong Kong’s judiciary. We all benefit from knowing that any decisions that the Hong Kong executive makes have to be within the law; that the legislature makes the law (within the Basic Law framework); and that the judiciary interprets the law.

With its latest intervention, Beijing wins the battle but is losing the war

Top-down decisions from the executive have no place in a safe legal system. Likewise, people who violate a written constitution should not expect to hold high office. The two young legislators chose the oath-taking ceremony to stage a protest that would disqualify them from sitting in Legco. The NPC Standing Committee’s reaction was to make the entire process more rigorous for everyone. In this response, we see an overreaction: Hong Kong’s judiciary could have disqualified those people and asked for an interpretation.

It is not wise to strain the Basic Law structure. We need to understand Hong Kong’s contradiction and maintain the balance: it is a world-class rule-of-law system operating under the separation of powers within defined limits, over which a larger system exists where there is no separation of powers. Hong Kong’s system has a practical use for everyone so long as it remains the way it is: transparent, independent and rational.

Jessica Fernando is a trainee solicitor and a graduate of the City University of Hong Kong