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  • Aug 28, 2014
  • Updated: 3:14pm
NewsHong Kong

Former top judge Andrew Li's defence of Basic Law attacked as 'an error'

Mainland expert attacks ex-judge's stance on city's legal autonomy as 'violation of principle'

PUBLISHED : Friday, 15 November, 2013, 4:47am
UPDATED : Friday, 15 November, 2013, 10:51am

An influential mainland legal scholar has accused Hong Kong's former top judge of making "a fundamental legal error" by suggesting the city's legal system could be undermined if Beijing reinterprets judgments by the city's courts.

In comments that have sparked intense debate, former chief justice Andrew Li Kwok-nang said on Wednesday that China's top legislative body should not use its power to reinterpret Hong Kong's mini-constitution - the Basic Law - after the city's top court has reached a final judgment, otherwise judicial independence would be damaged.

Li said: "In my view, the [National People's Congress] Standing Committee's power to interpret the Basic Law should not be exercised to override a court judgment in Hong Kong, especially one of the Court of Final Appeal."

While the position set out by Li - who was the first post-handover chief justice and served until 2010 - was backed by legal heavyweights and other Basic Law experts, Professor Dong Likun expressed pointed criticism.

Dong, a senior research fellow at the Institute of Hong Kong and Macau Affairs, said: "Justice Li is a man of high legal quality, but his view has violated basic legal principles and commits fundamental errors about the law."

He added that Li was wrong to suggest the Basic Law was a standalone constitution when it came under national laws. As such, Dong said: "NPCSC interpretations should follow a wrong Court of Final Appeal judgment. They sought to uphold - not destroy - Hong Kong's rule of law."

Senior barrister Martin Lee Chu-ming, a drafter of the Basic Law and veteran pro-democracy politician, yesterday threw his weight behind Li, recalling Beijing's landmark intervention in a key 1999 right of abode case and citing Article 158 of the Basic Law, which states that requests for interpretation should be raised before a final court judgment.

Lee criticised Beijing for intervening in the city's judicial independence when the court did not rule in its favour. "The central government leaves the ruling alone if it likes it, while it seeks to intervene using a Basic Law interpretation when the court ruling isn't as they intended it to be."

This form of interpretation effectively demoted the Court of Final Appeal to the "court of semi-final appeal", Lee said.

Professor Albert Chen Hung-yee, a member of the Basic Law Committee which advises on interpretations of the mini-constitution, said the government had learned a lesson after the right of abode episode in 1999, when Beijing intervened to override a judgment reached by the city's top court.

Chen said the government was aware such an interpretation should be avoided and it was unlikely to happen again.

Former National People's Congress deputy Ng Hon-mun said that under the Basic Law the government could seek an interpretation from the Standing Committee even after the top court had handed down its judgment.

Li had also weighed in on the TV licence saga when he spoke on Wednesday, saying the courts were not there to solve political, social or economic problems.


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This article is now closed to comments

your 3:20am posting
Quote: "Give me a time and place and you'll have a chance to put my fist in your spiteful, cowardly mouth." Unquote
Even birdbrains can realize
this forum is for discussions, mental exercises
not an arena for fights or bodily activities
If you don't even have a birdbrain
how could you discuss human affairs
You're such a proud sample of scholarism, democrazy and the likes
I invite readers to discussions, and prove me wrong if they could
Scoundrels who advocate "liberal democratic rule of law ..." respond and ask to fight
Where are those (are there any) thinking democrats with some ability to argue?

Just look at the words and photograph of this specimen of a stupid, intellectually impaired and totally slavish creature of a rotten governing system.
The ideological gulf between those who believe that laws are independent of human whim and self interest and applicable equally to all, against those who regard law as a convenient tool to be manipulated and perverted at the whim of a corrupt elite to suit their own interests, is unbridgeable.
This is the essence of Eastern despotism against Western notions of individual liberties and human rights. The East will never win as long as human beings nurture the spirit of freedom.
"Dong said: "NPCSC interpretations should follow a wrong Court of Final Appeal judgment."
---LOL. Judicial independence, CCP-style, ladies and gentleman. These mainland talking heads should realize that the standards within China (political interference with the courts; using the legal system to punish political enemies; lack of judicial independence) is yet another source of derision and mockery outside of the mainland. And that guy is a "mainland legal scholar"? Yikes. "CCP brown-noser" would be more like it.
Exactly. The courts in China are there to implement party policy. I thought the term 'mainland legal scholar' was an oxymoron to be honest.
Read the introduction which Albert Chen,
the previous law dean of HKU wrote
for a new book on China's legal tradition
by three young Chinese jurists
Never underestimate Chinese scholars' moral and intellectual powess
As Prof Lau pointed out in his recent publication
Beijing's interest in HK's legal system waned shortly after reunion
Some Chinese scholars thoroughly analyzed the ex-colonial legal system
and found it an empty shell without original developable substance
Why else do we have demagogic democrazies like ...
need I name them again?
Until recently, English common law was mostly a vocational training
learnt thru apprenticeship, not a subject to be taught in universities
Don't mistake the wigged profession's political ambitions
pretentious mythologization and rent seeking characteristic
as evidence of intellectual respectability or erudition
Nothing much to add here, after my comments yesterday
To paraphrase US SC Justice Kennedy:
“I see in this (forum) a discourse
that's hostile, fractious, uncompromising...
look at (the quality of most of the comments)
that's not the mark of a society
that's rational and probing and thoughtful...”
Such an arrogant and ignoramus claim that the study of English law is mostly vocational training ... not a subject taught at universities ... . Empty shell without original developable substance ... . You yourself need to take note of Justice Kennedy's remark
"Don't mistake the wigged profession's political ambitions
pretentious mythologization and rent seeking characteristic
as evidence of intellectual respectability or erudition"

They have a far better track record than mainland judges when it comes to upholding justice and human rights. When China has an independent judiciary, then we can take such mainland legal experts seriously. Until then, they're a joke.

Sorry but a mainland legal expert will never have the respectability of a real lawyer until China has a true rule of law.
Dong Likun says "NPCSC interpretations should follow a WRONG Court of Final Appeal judgment."
What this ignoramus party apparatchik means is a judgment the tyrants don't like.
"An influential mainland legal scholar" means his legal opinion is total garbage because he doesn't understand the rule of law since that doesn't exist in the mainland.

Thanks but I'll take the legal opinions of real lawyers over a shoe shiner any day.
Big Brother is taking a page from Lee Kuan Yew's playbook: whenever somebody prominent criticizes your regime, always be sure to have the last word on the matter (including shutting down publication of the Wall Street Journal and the Economist if they decline to acknowledge your "right of reply"). Maybe the SCMP is just working hard to keep from going the route of Southern Weekend.




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