LETTER OF THE LAW
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Beijing ruling a victory for pragmatism, but there may be a silver lining

Hong Kong’s common law system has shown itself flexible enough to deal with previous NPC interpretations of the Basic Law

PUBLISHED : Monday, 21 November, 2016, 4:08pm
UPDATED : Monday, 21 November, 2016, 8:20pm

The National People’s Congress Standing Committee’s decision on the recent oath-taking scandal has seemed to stop the speculation about the decision’s repercussions.

A range of commentators have opined about the ruling’s probable consequences for weeks. Martin Lee Chu-ming and others have warned that the ruling will undermine Hong Kong’s judiciary, rule of law and thus self-autonomy. Alice Wu has warned that the decision would undermine Hong Kong’s sovereignty. Cora Chan’s relatively dispassionate (and insightful) analysis of the related constitutional issues represents a welcome relief from the emotion-led analysis so far.

Almost everyone in Hong Kong and beyond has an opinion about the effects and consequences of the Standing Committee’s ruling. What does three generations of social science research tell us about the ruling’s likely effects, costs and benefits?

Financial markets ... care not about values and who is right or wrong in Tamar

A raft of theoretical and empirical findings from fields with names like New Comparative Economics, New Institutionalism and Jurimetrics/Leximetrics provide the basis for testable predictions. Such studies myopically look only at costs and benefits – rather than assess impacts on justice, rights, autonomy and so forth. Not every historical event is one of a kind. And the whole reason we pay so much for studies revolves around their ability to make predictions and guide leaders.

The emerging consensus among social scientists’ findings would probably back the Standing Committee’s speedy decision. Social scientists might not personally opine on this specific issue. Yet, many models of political economy note that a “dictator” (in the jargon of the literature) helps to resolve costly political in-fighting. In a strictly parliamentary, coalitional setting, in-fighting can lock up government for months or years in wars of attrition. The British provided Hong Kong with such a deus ex machina previously. Presidents and monarchs often provide stability and a final say when national politics goes crazy (ie physical fighting of the kind we saw two weeks ago).

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

Many a political scientist and institutional historian have similarly argued that if the Standing Committee didn’t have the power and speed to act, constitution drafters would have needed to find or make one. From the Ottoman Empire to the United Arab Emirates, from Morocco to the Ukraine of old, higher authorities have helped break political deadlocks by deciding who sits in government, and who does not. Few of the semi-autonomous cities/regions experienced a rapid decrease in autonomy when such rules came into force. The benefits of strong-hand politician winnowing tended to exceed the costs from uncertainty and instability.

Financial markets favour stability more than most else. They care not about values and who is right or wrong in Tamar.

So pragmatism wins over Hong Kong’s autonomy? Legal scholarship may give Hong Kong lovers reason to hold on to hope. Since the Ng Ka-ling right of abode case (about 17 years ago), many of my peers have documented how Hong Kong’s common law system has been flexible enough to deal with challenges of NPC interpretations coming from the north. Few of these scholars fret about the destiny of Hong Kong’s autonomy, as long as independent organisations like the Bar Society keep pressuring the government for democratic, Western rights. Everything will be all right, as long as the Court of Final Appeal acts as a ballast for maintaining the status quo.

Of course, legal consequentialism should not determine policy. Legal judgments – thankfully – rely on more than simple pragmatism.

Yet a body of evidence suggests even Hong Kong’s tear gas clouds may have a silver lining.

Dr Bryane Michael is a senior fellow with the University of Hong Kong’s Asian Institute for International Financial Law (AIIFL)