Sticking to his legal principles: former Hong Kong chief justice Andrew Li reflects on how rule of law has fared in last two decades

Today marks the one-month countdown to July 1 , the 20th anniversary of the return of Hong Kong to China. In the start of a weekly series on the handover, we focus on the rule of law in an interview with former chief justice Andrew Li Kwok-nang

PUBLISHED : Thursday, 01 June, 2017, 9:31am
UPDATED : Thursday, 01 June, 2017, 1:14pm

Hong Kong’s legal system has been through some tumultuous times in the two decades since 1997. The first post-handover chief justice, Andrew Li Kwok-nang, tackled challenges arising from the new constitutional order, where the city’s common law tradition came up against the mainland regime under “one country, two systems”.

As Li put it, there were bound to be “tensions and grey areas” under the unprecedented governing model: while Hong Kong enjoys a high degree of autonomy and judicial independence, China maintains the final say on how the Basic Law, the city’s mini-constitution, is interpreted. Often, it holds a different view on when and how it should intervene.

Since the handover, the mainland has interpreted the Basic Law five times over matters ranging from immigration and political reform to how lawmakers should swear their oaths. It has also issued a white paper declaring the country had “comprehensive jurisdiction” over Hong Kong and judges must be patriotic.

The legal profession has held silent marches and lamented “the darkest days for the rule of law”. But Li remains optimistic, while sounding a note of vigilance. Here is how he sees the past, present and future.

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‘No regrets’ over 1999 right of abode judgments

Li’s biggest challenge came barely two years after the handover, with the legal battle over the right of abode. The lawsuits began while the city was still celebrating the change of sovereignty. The High Court was swamped with applications from mainland-born children of Hong Kong permanent residents. It culminated in the two judgments delivered by the Court of Final Appeal in January 1999.

In the two cases, the court, presided over by Li, unanimously decided the Basic Law gave permanent residents the unqualified right of abode, and that all children born of permanent residents also had the right of abode, regardless of whether they were born before or after their parents acquired residency.

The government warned the judgments could trigger an influx of 1.67 million mainlanders to the city – a caution that hit the nerve of many Hongkongers but was criticised by some as a scare tactic.

In a bid to overturn the decision, then chief executive Tung Chee-hwa turned to Beijing, triggering an interpretation from the National People’s Congress Standing Committee.

In the end, the Standing Committee declared that right-of-abode applicants would require permission from the mainland and that children born before either of their parents became a permanent resident did not qualify for the right of abode. It said the court was wrong not to refer the cases to Beijing.

Looking back, Li said he had “no regrets” over the court decisions though he admitted the court did not expect the government to take that step to Beijing. “We interpreted the related provisions in the way we thought was appropriate,” he said.

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While Justice Kemal Bokhary, who also ruled on the cases, has said he considered quitting amid the storm, Li told the Post he never seriously considered doing so. If anything, it “strengthened my resolve to lead the judiciary to discharge its constitutional role effectively”, he said.

“It was a salutary experience in the early days of the new constitutional order. I believe it has led to a consensus between Beijing and Hong Kong that this power should only be exercised in the most exceptional circumstances.”

He said people must accept the Standing Committee had the “plenary” power to interpret the Basic Law, but also urged Beijing to refrain from acting, especially when the court had issued its judgment.

Separation of powers and the role of the chief executive

Whether Hong Kong enjoys separation of powers, a doctrine that has deeply influenced Western democracies, has been a subject of dispute between Hong Kong and the mainland.

The courts have recognised this as a common law doctrine applicable in cases. But over the years, mainland officials have cautioned that the doctrine does not apply to Hong Kong.

The latest came last week from Zhang Dejiang, the No 3 state leader, who defined the Hong Kong chief executive’s role as the “core” of an executive-led system, saying the political structure was not one of separation of powers. He did, however, recognise the judiciary was independent in adjudicating cases.

Li would not give a clear-cut answer on whether the doctrine had its place in Hong Kong.

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“Each jurisdiction has its own constitutional arrangements which reflect its history and circumstances,” he said. “As far as Hong Kong is concerned ... the NPC Standing Committee authorises Hong Kong to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power. The Basic Law distributes power between [the three branches] and provides for the relationships between them which involve checks and balances.”

The judiciary’s role, he said, was to adjudicate impartially disputes between citizens and between citizens and the government, and to ensure the executive and the legislature act in accordance with the law.

That said, Li does feel strongly about subjecting the city’s leader to the law. In 2012, in the wake of a misconduct scandal involving former chief executive Donald Tsang Yam-kuen, Li was tasked with chairing a committee to look into rules to prevent conflicts of interest involving the leader. But the committee’s recommendations have not been implemented by incumbent Leung Chun-ying.

The panel suggested the top official be subject to a criminal offence for soliciting or accepting any advantage if they did not receive permission from a new statutory independent committee, which was to consist of the chief justice and the legislature head. “The present position is unsatisfactory and unacceptable,” he said. “I’m glad that Mrs Lam [Carrie Lam Cheng Yuet-ngor] has pledged in her election platform that she will implement this recommendation.”

Polarisation of society; hopes for the new administration

Li said he viewed the polarisation of society with deep concern. The insufficient trust between the government and the people and between Beijing and Hong Kong was also worrying. Such polarisation arose from very different views over political reform, Li noted, and Occupy was a reflection of the deep divide.

“We must all remember that we are all in the same boat. If one has a good place on the boat, one would not rock the boat,” he said.

He looked up to Lam to address discontent in society, particularly housing and reduced social mobility, through providing more and better education opportunities.

“Mrs Lam is a public servant of outstanding ability and total dedication. I believe that she should be able to transform into a successful political leader and she deserves the community’s support.”

Future of ‘one country, two systems’

Looking ahead, Li said he believed the model should continue to govern Hong Kong beyond 2047, when the 50-year guarantee that the capitalist system and way of life remain unchanged expires.

“The Basic Law has no sunset clause,” he said. “It doesn’t automatically cease to effect on June 30, 2047. I see no advantage for Hong Kong to be subject to the same system as the mainland as this may well jeopardise its status as a financial centre.”

Hong Kong should remain a part of China but with its own values, a society which is pluralistic, compassionate and concerned with social justice, he said.

Regarding recent calls for independence from a few radicals and demands for self-determination by mainstream activists, Li dismissed both ideas as “not worth discussing” though people had the freedom to talk about them.

“The idea of independence is ridiculous,” he said, adding it led to mistrust in Hong Kong by the central government.

LANDMARK CASES SINCE THE HANDOVER

March 1998

The then justice secretary Elsie Leung Oi-sie decides not to prosecute Hong Kong Standard owner Sally Aw Sian over circulation fraud, partly because she thinks it will not be in the public interest and because it may cause the company’s collapse with the loss of many jobs. The decision sparks a public outcry. Aw was a member of the Chinese People’s Political Consultative Conference and a family friend of then chief executive Tung Chee-hwa. Leung survives a motion of no-confidence against her in the Legislative Council.

June 1999

Beijing overrules the Court of Final Appeal over the right of abode issue, fuelling debate about who is in charge. The Court of Final Appeal rules that the children of parents with the right of abode in Hong Kong also have the right of abode, irrespective of whether their parents are already permanent residents at the time of their birth. The government asks the National People’s Congress Standing Committee for an interpretation of Article 24 of the Basic Law. It decides that children born outside Hong Kong will have right of abode only if at least one of their parents has already acquired permanent residence status at the time of birth. Those eligible for the right of abode still need to apply for approval from mainland authorities before their entry into Hong Kong.

April 2004

The National People’s Congress Standing Committee issues an interpretation to Annex I and Annex III of the Basic Law, effectively adding two new rules to Hong Kong’s electoral reform process stating that the chief executive must first report any amendment to the method of election to the committee, which decides if it is necessary.

April 2005

At the request of acting chief executive Donald Tsang Yam-kuen, the National People’s Congress Standing Committee issues an interpretation of Article 53 of the Basic Law stating that if the office of chief executive becomes vacant mid-term, the succeeding chief executive should serve the remainder of the original five-year term.

April 2005

The Court of Final Appeal overturns the convictions of eight Falun Gong practitioners for wilful obstruction of police and assault during a 2002 protest outside the central government’s liaison office. It says the importance of the fundamental right to demonstrate must be given substantial weight in deciding whether the obstruction is reasonable.

February 2006

The Court of First Instance rules it was unconstitutional for the chief executive to grant orders to law enforcers for intercepting telecommunications, prompting the enactment of a new law that requires them to obtain a court order for such surveillance activities.

August 2009

The then chief justice Andrew Li Kwok-nang announces he will resign early, leaving office at the end of August 2010. Li, who has served as chief justice for 13 years, dismisses speculation that his resignation is due to political pressure.

August 2011

The National People’s Congress Standing Committee, at the request of the Court of Final Appeal, issues an interpretation of Articles 13 and 19 of the Basic Law, confirming the Democratic Republic of Congo’s entitlement to absolute state immunity in the so-called “Congo case”. It is the first time the top court has invoked the mechanism under Article 158 of the Basic Law to seek the NPC Standing Committee’s interpretation as to whether a foreign state can be sued in Hong Kong courts. The case was launched by US company FG Hemisphere Associates against the DRC seeking enforcement of two arbitral awards in Hong Kong.

October 2012

Court of Final Appeal judge Kemal Bokhary, who has gained a reputation as the city’s most liberal judge, retires. He warns that clouds heralding a storm of unprecedented ferocity are gathering over the rule of law in Hong Kong.

May 2013

The Court of Final Appeal effectively gives transgender people the right to marry as their identified gender rather than their biological sex at birth, saying Article 37 of the Basic Law and Article 19 of the Bill of Rights protect a person’s right to marry.

December 2013

The Court of Final Appeal rules that it is unconstitutional for the government to deny social security to new immigrants, meaning that new arrivals will no longer be required to live in the city for at least seven years before they can apply for benefits.

January 2014

Weighing in over whether Hong Kong adopts the system of separation of powers, Chief Justice Geoffrey Ma Tao-li says that the Basic Law sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary, and the different roles of the three institutions.

June 2014

A record number of some 1,800 lawyers and members of the legal profession take to the street to protest against Beijing’s white paper on Hong Kong, which categorises judges in Hong Kong as administrators who need to be patriotic. The protesters say this could jeopardise judicial independence.

November 2016

Amid the Legco oath-taking controversy, the National People’s Congress Standing Committee hands down an interpretation of Article 104 of the Basic Law. It states that lawmakers must swear allegiance to Hong Kong as part of China, describes how they should do it, and the consequences of failing to do so. This pre-empts a Hong Kong court over a case for which an initial hearing had been held and full submissions yet to be given. It also effectively bars two elected pro-independence politicians from assuming office because of their improper oath-taking.