A Hong Kong judge prepares to deliver a landmark ruling of constitutional significance. But before he can do so, Beijing steps in. It issues a legal interpretation that effectively ties the courts hands and settles the case.
These events, which saw two radical opposition lawmakers disqualified for making offensive remarks while taking their oaths, occurred six years ago tomorrow. It marked the beginning of the central government’s moves to quash Hong Kong’s nascent independence movement and bring the legislature into line.
But it is also significant because this was the last time China’s top legislative body delivered an interpretation of the city’s de facto constitution, the Basic Law. Only once before, between 2005 and 2011, has Hong Kong gone as long as six years without this legal “weapon” being used by Beijing to settle a constitutional dispute in the city in its favour.
There have been five interpretations by the National People’s Congress Standing Committee since Hong Kong returned to China in 1997. All have been controversial. They prompted concerns that the city’s high degree of autonomy was being limited and its judiciary undermined.
The interpretations became part of the legal landscape. But after the transformative changes in Hong Kong in recent years, their future use is open to question.
Much has changed since the last interpretation. Months of civil unrest in 2019 led to the new national security law, mass arrests of opposition figures and the imposition of a “patriots only” political system. Beijing took control.
But this reshaping of the city was achieved through resolutions, decisions and the direct imposition of the security law by the country’s top legislature. Interpretations of the Basic Law took a back seat, amid the use of these more direct means.
The power of the Standing Committee to interpret the Basic Law is, however, an integral part of the constitutional arrangements governing relations between Hong Kong and Beijing. These interpretations are binding on Hong Kong’s courts. Before the handover, many assumed Beijing would only interpret the Basic Law if requested to do so by the city’s top court. It quickly became clear this was not the case.
The first interpretation, in 1999, effectively overturned a Court of Final Appeal judgment. It was requested by the city’s leader. The bold attempt by judges in that case to ring-fence Hong Kong’s system and act as the prime arbiter in constitutional disputes fell at the first hurdle. Five years later, Beijing used an interpretation of the Basic Law to take control of electoral reform. The mechanism was deployed again in 2005 to settle the length of the new chief executive’s term.
Only once has the court requested an interpretation from Beijing, in 2011. The city’s judges have been reluctant to make such referrals, knowing the move would be controversial. They took the opportunity to deliver a “draft” judgment for approval by Beijing.
The scope for constitutional disputes arising in today’s much-changed political landscape is more limited than in the past. The legislature can be expected to follow Beijing’s line. Dissenting voices on sensitive issues have faded with the application of the national security law.
But the courts will still need to decide constitutional cases. The ultimate power to interpret the national security law, as with the Basic Law, lies with the Standing Committee in Beijing. It remains to be seen how the judges will approach this. It may be that in the new political environment, interpretations of the Basic Law are seen in a new light. The courts must continue to decide cases independently, in accordance with their own methods of interpretation, rooted in the city’s common law traditions. They must protect human rights.
There were once hopes the mechanism for interpretations would lead to a “dialogue” between Hong Kong’s courts and Beijing, bridging the two systems either side of the border. This proved to be too optimistic. But it might yet, in the new political environment, prove a better way of resolving disputes than the more direct means open to Beijing.