A growing need to resist Beijing's call for Hong Kong judges to follow China's model and the increasingly indigenous nature of legal disputes have presented the city's top judge with unprecedented challenges, a law expert has said in his new book.
Lo Pui-yin, chairman of the Bar Association's constitutional affairs and human rights committee, argues in his book for the need to keep a common-law approach in interpreting the Basic Law, the city's mini-constitution.
"The [Hong Kong] courts under … Chief Justice [Geoffrey Ma Tao-li] will face challenges that are hardly the incidences of managing a rising caseload and maintaining the quality of judgments," Lo wrote in his new book, The Judicial Construction of Hong Kong's Basic Law: Courts, Politics and Society after 1997.
While former top judge Andrew Li Kwok-nang - the first to chair the Court of Final Appeal after the handover in 1997 - focused mainly on keeping Hong Kong's constitutional jurisdiction distinct from the rest of China's, Lo said, the incumbent Ma - who took over in 2010 - would have to insist that Beijing's understanding of judicial functions was incompatible with Hong Kong's.
"The so-called 'new policy' of the central authorities towards Hong Kong in general has manifested in repeated calls for co-operative or supportive approach on the part of the judiciary with the executive and the legislature.
"Judges of the HKSAR have to be outgoing, receptive and at times courageous to underline and apply internationally adopted judicial standards so as not to be assimilated to become part of the China Model."
Adding to the difficulty of doing so was the need to deal with cases unique to Hong Kong society, Lo told the South China Morning Post.
The issues before Ma's benches were nothing "so classic like the arguments about freedom of speech and assembly". The top court could draw reference from few overseas decisions, if any at all, when adjudicating cases such as a transsexual woman's recent case for the right to marriage.
"Sometimes, the cases before Ma are rather cutting-edge [and] there are few overseas precedents," Lo said, adding that being required to interpret the Basic Law on their own could sometimes have an "erosive" impact on judges.
"The thinking process ended in an interpretation of the Basic Law that was other than progressive," he said of previous cases.
"One must be wary of the eroding risk of indigenisation of jurisprudence … The application of indigenous resources may place the user under the subtle influence of the thinking of the drafters of the Basic Law and others explaining [it] from the mainland Chinese perspective," Lo wrote in his book.
"Mainstream mainland jurisprudence, legis-prudence or academic doctrine carries a strong emphasis on the political."