Hong Kong Basic Law

Leading Hong Kong law scholar proposes rules limiting Beijing’s power to interfere with local court decisions

Former University of Hong Kong law dean Johannes Chan warns that power to interpret Basic Law will continue to be a major challenge for judicial independence

PUBLISHED : Monday, 09 July, 2018, 7:16am
UPDATED : Monday, 09 July, 2018, 11:20am

A leading Hong Kong law scholar has devised a set of principles to limit Beijing’s power to interfere with local court rulings in his latest crusade to safeguard judicial independence.

Former University of Hong Kong law dean Johannes Chan Man-mun SC floated the idea in an interview with the Post, warning that Beijing’s power to interpret the Basic Law, the city’s mini-constitution, would continue to be a major challenge for the city’s independent courts.

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“If the National People’s Congress is to issue an interpretation again, which it certainly will … at least we can set out some limiting principles,” he said.

Under the Basic Law, the National People’s Congress Standing Committee (NPCSC), China’s top legislative body, is entitled to give an interpretation when a matter of law arises from the mini-constitution.

But critics fear the exercise will eat away at the city’s judicial independence one interpretation at a time, as it overrides the local courts’ power to adjudicate.

Chan said when a court case is ongoing or involves no “public interest, urgency or exceptional circumstances”, Beijing should refrain from exercising this power of interpretation.

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He also said Beijing should also think twice when the matter involves ongoing litigation, or if it falls well within the local courts’ jurisdiction to deal with it.

For the Hong Kong government, Chan said it should not seek an interpretation unless there is a referral by the court or it has the legislature’s endorsement.

There have been five interpretations since Britain handed the city back to China in 1997, with two being initiated by Beijing, two by the Hong Kong government and one by a local court.

Chan, a human rights specialist, shared the principles in a wide-ranging interview, in which he also talked about his new book, Paths of Justice. The book chronicles his journey to becoming one of Hong Kong’s most prominent legal scholars while preaching the rule of law by reflecting on some of the city’s most significant cases.

His thoughts on a mechanism are akin to a suggestion last year by mainland Chinese law scholar Rao Geping, a key member of the Basic Law Committee under the NPCSC, to “standardise” the interpretation system.

The scholar said that while he was not opposed to such a suggestion, he believed his principles should be followed.

He said, for example, that it was unnecessary for Beijing to issue an interpretation after Donald Tsang Yam-kuen took over as chief executive from Tung Chee-hwa, who in 2005 stepped down early. The NPCSC said Tsang’s succession should be considered as the remainder of Tung’s two-year term and not the start of a new five-year term.

“You had at least seven years to resolve a matter that affected only one person, which the local court could fully deal with,” he said, referring to the period that would include a full second five-year term.

“Why did you need an interpretation?”

Equally undesirable, he said, was when Beijing issued an interpretation on oath-taking requirements when the local court was still deliberating on whether localists Yau Wai-ching and Sixtus Baggio Leung Chung-hang should be disqualified as lawmakers over their antics during their swearing in.

The court later ruled to disqualify the pair and four other pro-democracy lawmakers in separate cases over their oaths.

Chan said people might perceive the interpretation as a move intended to influence a court decision.

The interpretation in the lawmakers’ case also raised questions on its retrospective effect – something deemed unacceptable in the city’s common law system – and whether it was so far-reaching that the NPCSC was in effect creating new laws.

Chan also suggested Beijing should only use its power to clarify constitutional issues, not to plug loopholes or meddle with local laws.

Whether there is a retrospective effect should be decided on a case-by-case basis, he said.

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Chan said recent events had left him more pessimistic than ever about the city’s judicial independence in his 30 years of legal practice and teaching career.

While admitting Beijing may not accept his idea, Chan said one must not assume that mainland leaders will be “irrational” and immediately turn a deaf ear, as there is a commercial interest in Hong Kong maintaining its international image.

He said it might take a lot of communication with Beijing.

“The secretary of justice plays a big role. The secretary has the formal role of striking a dialogue with counterparts up north,” he said.

Former pan-democratic lawmaker Alan Leong Kah-kit said that while Chan’s intention to preserve the city’s judicial independence and high autonomy was good, he believed the plan was “futile” unless Beijing was willing to play its part.

Similarly, executive councillor Ronny Tong Ka-wah said while Chan’s idea could spark fruitful debate, he saw no room for the suggestions to be implemented.

He was in favour of standardising the practice but said it could only be done by making it more transparent rather than restraining Beijing’s power. He said Beijing may consider setting up a more solid system, as well as allowing parties affected by the interpretation to observe the procedure.