Beijing will rely more on ‘legal means’ to strengthen authority in Hong Kong
Basic law interpretations will set legal precedents to blend in common law
Beijing will rely more on “legal means” to strengthen its authority in Hong Kong – such as establishing a set of legal precedents so the interpretation of the Basic Law could be better integrated into the city’s common law system, according to two mainland government advisers.
They said Beijing would not seek frequent interpretations of Hong Kong’s Basic Law as they understood the importance of upholding the city’s autonomy in its internal affairs. The aim was to ensure Beijing’s authority over “principle issues” – such as sovereignty and national security – is protected, they said.
“There has been a consensus among scholars on Hong Kong affairs, as well as policymakers on the mainland, to rely more on the legal framework to govern Hong Kong,” Tian Feilong, an associate law professor at Beihang University in Beijing, said. Tian is also a member of the Chinese Association of Hong Kong and Macao Studies, a semi-official group of policy advisers on Hong Kong policies.
Tian said Beijing might also explore further detailing powers endorsed by the Basic Law but never practised, like mandating the chief executive follow an official directive.
Article 48 (8) of the Basic Law states the city’s leader should implement directives issued by the central government. Beijing has not yet issued any directive to the Hong Kong chief executive.
“If the chief executive is just following Beijing’s directive, the act will fall outside the jurisdiction of the local courts, reducing the resistance of a judicial review,” Tian said.
“In the past, it was a double track system of non-official consultation and legal means, but [Beijing’s] tactic now has been using legal means mainly.”
Eric Cheung Tat-Ming, a legal scholar with the University of Hong Kong, said the new trend was set to eliminate differences between the two legal systems.
“The Basic Law was drafted by a committee with many Hong Kong delegates and a consultative committee formed purely by Hong Kong people so it could carefully mind the difference between the two legal systems. Back then, every word and even punctuation was carefully weighed,” Cheung said, adding that the new trend was “worrying”.
“But with interpretation of the law, Beijing is adding a lot of new content to it without the input of Hong Kong. It goes against the original intention of the drafting of the law.”
Dong Likun, a professor of the Basic Law formerly with the Shenzhen University Law School, said Beijing was expected to use interpretations to further clarify relations between Hong Kong and Beijing, and those between common law and the Basic Law. “When there’s a conflict between the common law and the Basic Law, which shall be subordinate?”
Dong, who was a senior research fellow at the Development Research Centre of the State Council on Hong Kong policies, said Beijing would try to govern the city more efficiently, rather than merely rely on courting its business elite.
“A lesson learned in the past two decades is that adjusting relations between Hong Kong and the central government and tackling Hong Kong’s internal conflicts via rulings by Hong Kong’s judicial system is better for the governance of Hong Kong and easier for the public to accept,” Dong added.
Most of the controversies since the handover in 1997 were settled through legal means, including political reform and oath-taking.
The National People’s Congress handed down an interpretation of the Basic Law rule about oath-taking in November, effectively disqualifying two localist lawmakers, Yau Wai-Ching and Sixtus Baggio Leung Chung-Hang, before a Hong Kong court delivered its own ruling on the case.
“After one case, Beijing has set a standard and precedent for the usage of constitutional power,” Tian said. “The interpretation not only covers the case of Yau and Leung but the whole practice of oath-taking, and has become part of the Basic Law.”
The National People’s Congress interpretation of the Basic Law on the oath-taking issue would cover oath-taking go beyond the cases of the two disqualified members of the Legco and even be applicable to oaths taken by the chief executive, members of the Executive Council and judges, he said.
Such interpretations were set to create a new set of jurisprudence in line with Beijing’s stance, which could compete and become integrated with the traditions of common law in the city, Tian said.
Both Dong and Tian said the interpretations would not be used often as Beijing still respected the city’s autonomy in most of its internal affairs, except those that concern state security and national sovereignty.
They said the new trend to explore legal ways to govern Hong Kong was part of the national strategy of ruling the country by law, put forward by the current leadership of the Communist Party since 2012.
The party said in a top-level document in 2014 that it would strengthen the role of the law in governance. Beijing has since passed several laws including ones covering cybersecurity and national security.
But it has also repeatedly stressed that the country’s legal system is firmly under the leadership of the party and should be distinguished from the Western concept of the rule of law and separation of powers.