The Court of Final Appeal, Hong Kong’s highest court, has been at the centre of more than one dispute about the independence of the judiciary in 2018. Photo: Sam Tsang
Opinion
Regina Ip
Regina Ip
Does Carrie Lam support Hong Kong’s courts when they promote individual rights, or back Beijing?
Regina Ip says Hong Kong’s chief executive needs to decide where she stands because an independent judiciary, upholding individual rights over national interests, will remain at odds with Beijing and its backers here
All governments love to be loved. So, governments can be forgiven for wanting to dig deep into their pockets to do good, but no government can stand its ground without strongly held convictions.
In the colonial era, the British administration courted local support by hewing to traditional Chinese values. But, when push came to shove, the British rulers stood firmly by their “core values” – respect for the fundamental worth of the individual and distrust of power.
Holding firm to its humanitarian values, Hong Kong, under then-governor Sir Murray MacLehose, sheltered as many as 250,000 Vietnamese boatpeople after the fall of Saigon, even as close relatives of Hong Kong residents from mainland China were repatriated everyday. As the transfer of power in 1997 approached, Hong Kong decriminalised homosexual acts between consenting adults in private in 1991 and expunged the death penalty from its statute books in 1993. All were unpopular decisions at the time, but the government pushed ahead with its plans after token consultation.
Granted, the government at that time did not have to face periodic opinion polls on its approval rating, or lobby legislators for votes. But it did run the gauntlet of conservative Chinese opinion. Somehow, it was able to foist its beliefs on the predominantly Chinese community without causing too much discord.
It is not entirely clear what the current administration truly believes in. Ever since taking over as chief executive, Carrie Lam Cheng Yuet-ngor has positioned herself as a staunch defender of the judiciary. Lam had enhanced the appeal of serving on the bench, supporting fattening the salary and benefits of top judges and extending their retirement age.
Baroness Brenda Hale (left) of the UK and Beverley McLachlin of Canada became the first female justices to join Hong Kong’s Court of Final Appeal in July, despite questions from local lawmakers over whether they would uphold national interests. Photo: Handout
To demonstrate her commitment to judicial independence, in May, Lam appointed two top female Commonwealth judges, Baroness Brenda Hale, president of the UK’s Supreme Court, and Beverley McLachlin, recently retired chief justice of Canada, to the Court of Final Appeal as non-permanent judges. The appointments no doubt strengthened Hong Kong’s linkages to the common law world. But, for the first time, the chief executive’s judicial appointments drew fire from pro-Beijing legislators, who attacked the judges for supporting gay rights in their past judgments.
The truth is that the government cannot appoint eminent jurists from the Commonwealth to the highest court in Hong Kong without importing their liberal values. It does not look likely that Lam appointed them because of their support for gay rights, as Lam herself has more than once shied away from expressing any modicum of support for gay rights because of her religious beliefs, as have other senior officials, most of whom are either Catholics or Protestants.
Lam was so wary of upsetting fiercely anti-gay church groups that she declined even to congratulate the Hong Kong organisers after they succeeded in winning the bid to host Gay Games 2022 in Hong Kong.
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Successive Hong Kong Special Administrative Region governments have been loathe to recognise gay rights or introduce legislation prohibiting discrimination on the basis of sexual orientation or gender identification. Yet the CFA has proved itself to be more progressive than the government.
In recent years, the CFA had made one ruling after another upholding gay rights – recognising the right of a transgender person to get married in W v The Registrar of Marriages, and striking down the government’s visa policy on dependants as discriminatory against same-sex couples in QT v Director of Immigration. In consequence, the Security Bureau announced on September 18 a change in its visa policy on dependants, to allow a sponsor to bring in a same-sex spouse or partner.
The CFA’s judgment in QT v Director of Immigration quoted liberally from Hale’s rulings in various cases involving gay rights – Rodriguez v Minister of Housing, Bull and Bull v Hall and Preddy, Ghaidan v Godin-Mendoza. With Hale and other like-minded jurists likely to exert profound influence on legal issues involving gay rights in the foreseeable future, pundits are betting on the government losing more legal battles like the lawsuit brought by senior immigration officer Angus Leung Chun-kwong, for denying his gay partner the civil service benefits available to heterosexual couples.
Support for gay rights may not be the real reason Beijing loyalists launched an unprecedented attack on the latest CFA appointments. After all, support for the LGBT community, though repugnant to homophobic bigots, does not pose any threat to the core interests of the nation.
The Beijing loyalists’ real worry could be judgments like that handed down by the CFA on September 7, which reduced the sentences on 13 activists involved in violent protest against a development plan in northeast New Territories and allowed them to walk free. The fear could be that the CFA might follow a judicial philosophy which places the rights of the individual above national security or public order and make judgments which would seriously injure national interests.
Stanley Ng, head of the Hong Kong Federation of Trade Unions and a delegate to the national legislature, lambasted the Court of Final Appeal’s decision in September to free 13 pro-democracy activists. Photo: Simon Song
After trade union leader Stanley Ng Chau-pei, a delegate to the National People’s Congress, slammed the CFA for the judgment, Lam briskly rushed to the judiciary’s defence by condemning criticism of judges or their judgments. Pro-Beijing media responded by criticising Lam for suggesting that judges are unassailable, and for not taking tougher action against Hong Kong independence advocates. The war of words has ceased, but Lam has doubtless learned her lesson.
The chief executive of Hong Kong must sort out what she stands for and what she truly believes in – support for equality and human rights, as embodied by the CFA judges, or overriding national interests. It is truly not easy for her to please both her bosses in Beijing and the people of Hong Kong. Not even the redoubtable Lam seems able to find her feet in such a war of values.
Regina Ip Lau Suk-yee is a lawmaker and chairwoman of the New People’s Party
This article appeared in the South China Morning Post print edition as: A dilemma for Carrie Lam
