With the
fireworks at Hong Kong Polytechnic University dominating international media attention, it is easy to miss a far bigger watershed. After Hong Kong’s High Court rightly pronounced Chief Executive Carrie Lam Cheng Yuet-ngor’s application of the Emergency Regulations Ordinance
unconstitutional, China’s National People’s Congress made an announcement which could – if translated into policy – signal the end of Hong Kong’s rule of law as we know it.
Noting that China’s “constitution and the Basic Law jointly form the constitutional foundation of [Hong Kong]”, a spokesman for the NPC Standing Committee’s Legislative Affairs Commission
said: “Whether Hong Kong’s laws are consistent with the Basic Law can only be judged and decided by the NPCSC. No other authority has the right to make judgments and decisions.”
The statement also condemned the Hong Kong judgment as “severely weakening the legally enshrined power to govern enjoyed by the chief executive”.
The statement is a naked power grab by the central government from the Hong Kong judiciary, and is clearly in breach of both existing Hong Kong case law and the terms of the
Sino-British Joint Declaration.
The integrity of Hong Kong’s legal system was a key priority for us when we negotiated the handover settlement. This was why Article 3(3) of the Sino-British Joint Declaration states that, “The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication.”
Stripping the courts of their powers of final adjudication would have major ramifications for the city as an international financial hub, because of the implications it has for Hong Kong’s rule of law and the city’s autonomy.
If the NPC pushes through with the line of reasoning outlined in its statement, it would break down the firewall between Hong Kong’s legal system and the power of the executive, and potentially
critically compromise the integrity of the legal system.
Hong Kong’s system has historically been successful because there are appropriate checks on executive power, with the robust legal system ensuring trust in the system.
The rule of law is
critical for the city’s success as an international financial centre. More than 1,500 multinationals have their regional headquarters in Hong Kong. American Chamber of Commerce survey data shows that the rule of law is a key reason for the attractiveness of the territory.
Unlike in mainland China, firms in Hong Kong know they can trust that the courts will ensure contracts are honoured, with no prejudice shown to politically connected firms. The result has been that the city has been a key financial gateway between China and the world, and mainland businesses are
reliant on Hong Kong as a key source of capital.
Firms may not flee immediately, but those making long-term plans could easily see the interference of Communist Party cadres in the judicial review process as a
major new risk.
The erosion of autonomy implied by this power grab by the mainland executive adds additional concerns. Hong Kong was promised a high degree of autonomy by the handover agreement. Beijing’s
selection of Hong Kong’s chief executive and its decisions to
disqualify candidates from standing for election have prompted observers to question the autonomy of the executive and legislature respectively.
Until recently, the legal system has remained comparatively untarnished. The increasingly frequent interventions by the mainland in the interpretation of Hong Kong’s Basic Law have led to concerns, and the decision that
mainland law would apply at the West Kowloon Rail terminus sparked significant disquiet among the legal community, but there has been no imposition on Hong Kong’s judicial autonomy as blatant as this statement.
This could have major repercussions. Under the
US-Hong Kong Policy Act, Hong Kong is treated separately by the United States government to mainland China on the basis that the city remains sufficiently autonomous. There have already been scores of senators
questioning whether this special treatment remains justified. If the Hong Kong judiciary begins to imitate the mainland judiciary, this could be the death knell.
Without US endorsement of Hong Kong’s brand as an international financial centre, the city will struggle to play its unique role. Given that more than 70 per cent of offshore initial public offerings by mainland companies happen in Hong Kong, this would have a serious impact on China.
I hope that the NPC reconsiders its statement, and does not seek to strip the Hong Kong courts of their interpretative powers over the constitution. Upholding Hong Kong’s rule of law and autonomy is clearly in China’s best interests.
Sir Malcolm Rifkind QC was the UK Foreign Secretary between 1995 and 1997
