Like other star lawyers of his era, Geoffrey Ma Tao-li’s career was at its peak when Hong Kong was reunited with mainland China in 1997. The city’s Basic Law or mini-constitution provided for the English common law system to continue for the next 50 years, complete with the wigs and gowns. Like many others, Ma wondered how it would all change in practice after July 1. Trained at the University of Birmingham, he was one of the city’s most sought-after senior counsel. In 2010, he was appointed chief justice, a position he served for 11 years, until 2021. ‘If everybody criticises you, you probably got it right’: Hong Kong’s former chief justice Things turned out to be “more or less the same” after the 1997 transition, he found. If anything, “it got better, I think,” he said, citing the improved quality of judges over the past two and a half decades. But questions about the future of Hong Kong’s much-vaunted legal system have surfaced now and then. They have grown more pressing as the city crosses the halfway point of that 50-year period. The imposition of the national security law in 2020 has heightened debate about the independence of the judiciary. To protest against the law, two sitting top judges from Britain’s Supreme Court pulled out of Hong Kong’s Court of Final Appeal in March. The government condemned their move as a case of double standards and being politically motivated, pointing out how Britain has its own draconian security laws. To Ma, the issue is not about the law’s imposition but its application. As the courts continued to maintain a high level of transparency, people had the opportunity to at least scrutinise the judgments, he maintained. “That debate is possible because the court has chosen to tell you what its reasons are,” he said. He said he believed, when adjudicating national security offences, judges would strike a balance by taking into account rights and freedoms guaranteed under the International Covenant on Civil and Political Rights. Ma also expressed confidence that public confidence in the city’s legal system had grown over the years. He cited people’s reliance on the courts to adjudicate increasingly complex cases, from commercial to family disputes as well as criminal issues. Another indicator was the sums of money being litigated in commercial cases. While there are no official figures, individual cases can easily hit billions of dollars when some of the city’s wealthiest families and mainland Chinese firms are parties in lawsuits. The complexity and high financial stakes had increased the demand for high-calibre judges and lawyers, lifting the quality of the legal sector, Ma said. His predecessor Andrew Li Kwok-nang, the city’s first chief justice after the handover, shared Ma’s sentiment, rejecting the criticisms of recent years. “During this period, the rule of law and judicial independence has been maintained,” he said. Li, who helmed the judiciary between 1997 and 2010, said over the past 25 years, the court had managed to recognise Beijing’s authority, while safeguarding the rights and freedoms of citizens. “The city’s top court has developed a considerable body of jurisprudence for interpreting and implementing the Basic Law,” he said. “The Court of Final Appeal has established an international reputation. Its judgments are widely respected and increasingly cited.” In 2019, the World Economic Forum placed judicial independence in Hong Kong at the 8th spot worldwide and second in Asia in its Global Competitiveness Report. China came in 47th out of 141 countries and territories the international body had surveyed. But this was before the national security law – which targets secession, subversion, terrorism and collusion with foreign forces – in 2020. Critic and former activist Eric Lai Yan-ho, now a law fellow at the Georgetown Centre for Asian Law, called it “a blow to judicial independence no matter how much goodwill there is to maintain it”. More than 100 opposition figures have been charged under various national security offences, with the biggest case centring on the prosecution of 47 opposition activists who held a non-official primary election. Legal heavyweights such as former chief justice Ma have urged people not to conflate politics with the law and judges’ work. John Lee dismisses Western criticism of arrests of cardinal and activists But Lai argued these cases demonstrated the city’s narrowing scope in interpreting human rights. This had hurt people’s confidence in the legal system, he said. Critics such as Lai, a former vice-convenor of the Civil Human Rights Front, the city’s most prominent march organiser, have also lamented the creation of a pool of judges specially appointed by the chief executive to hear national security cases as troubling. The law had also reversed the burden of bail on defendants, making it such that there was a presumption of no bail, again a departure from the common law system, critics said. Only 13 out of the 47 opposition figures in the subversion case were granted bail, with the rest in jail for more than a year with no date set on trials. But Law Society president Chan Chak-ming argued that one must consider the circumstances under which the national security law was introduced. “Like it or not, it basically brought stability back and law and order in Hong Kong,” said the head of the city’s 12,000-member solicitor body. “It’s quite normal and important to any sovereign state in the world [to have a national security law]. And the comprehensive national security law is necessary to safeguard a country’s sovereignty, and there’s no difference in Hong Kong.” He urged people not to jump to conclusions too early given the law was still new. With more rulings to come, there would be “more clarity”, he said. Chief Executive Carrie Lam Cheng Yuet-ngor and the government have also repeatedly rebutted allegations from critics locally and abroad, describing them as “unfounded accusations” especially by Western countries applying double standards when they had their own national security law. Hong Kong security chief warns UK on ‘double standards’ over new security bill At a recent conference, Lam stressed again the “rule of law has been a core value and the cornerstone of Hong Kong’s success” and that the city had “an independent judiciary and fundamental rights and freedoms fully protected under the Basic Law”. Former chief justice Li said the security law was “generally consistent with the rule of law”, with the standard of presumed innocence until proven guilty. Still, many leaders in the legal realm, including Li and Chan, have urged prosecutors to speed up their work given the personal liberties at stake. Ma said he noticed a number of magistrates and judges had already spoken out on the issue during court sessions, calling for expedition. On the issue of bail, he said although the law had given the government “in football terms, an advantage” when granting bail, people should not assume that the court was therefore prejudiced against the defendant. “It’s rather like saying in a criminal case, the burden is on the prosecution to prove beyond a reasonable doubt. Some people will say that’s biased because you’re biased in favour of the defence,” he said. He said when applying the law, judges would look at its human rights safeguards to strike a good balance with the kind of protection to which a defendant was entitled. “If you’re asking me whether I think [the national security law] is a good thing or a bad thing, it’s not really up to me to say that of any law because you may have asked me: ‘do I like the Sale of Goods Ordinance or, or the probate ordinance?” Ma said. “It doesn’t really matter whether I like it or not, because my only concern – or my former concern – was to apply it. How do we best apply it?” Both former chief justices Ma and Li stressed over the years that they had never been subject to undue pressure from any Beijing officials. In a 2020 report, the World Bank still found Hong Kong performing better than 91.8 per cent of places it surveyed that year in terms of the rule of law, while the World Justice Project placed the city at 19th globally in its rule of law index in 2021, a year after the implementation of the national security legislation. Yet, the exit of two UK Supreme Court judges, Lord Robert Reed and Lord Patrick Hodge, from Hong Kong’s Court of Final Appeal in late March this year because of the national security law caused ripples. It also prompted questions on the role of foreign judges. One overseas jurist from another common law jurisdiction can sit on the city’s top court when a full panel of five is convened. Legal scholar Simon Young Ngai-man, from the University of Hong Kong, said the unique arrangement since the handover had been an “extremely important force in the development of the law in Hong Kong for the first 25 years”. Not only had it enabled Hong Kong to stay in touch with other jurisdictions, he said, it also conferred “confidence on the business community and just ordinary people in Hong Kong”. Ma, who when he was chief justice had to scour for “the best legal brains” abroad, said it was more than that. “This is a matter of choosing your best team,” he said. The two leading legal bodies, the Law Society and Bar Association, both called the two UK judges’ departure regrettable, with the Hong Kong government blaming the worsening geopolitical relationship between Beijing and the West. But Ma pointed to the statement issued by Lord Reed during their resignation to reaffirm people’s confidence in the judiciary. He wrote: “The courts in Hong Kong continue to be internationally respected for their commitment to the rule of law.” Nine other retired foreign judges – made up of five from the UK, three from Australia and one from Canada – have pledged to stay on. Bar Association chairman Victor Dawes found encouragement in their vocal support. In his first formal speech as chief justice in January this year, Andrew Cheung Kui-nung warned that irresponsible criticisms would chip away at the city’s rule of law. Noting the reproach came not only locally but also from overseas, he said he welcomed constructive comments but cautioned: “When such attention and comments are not based on objective facts and rational arguments, but rather on surmises, political stances or geopolitical considerations, they are of no value to the advancement of the rule of law in Hong Kong or the upholding of judicial independence.” Dawes noted that lawyers had also been targeted for criticism and without naming anyone, he said unjustified criticism against them was just as bad as venom directed at judges. “We hope the public can understand that we are trying to do our job,” he said. Earlier this year, pro-Beijing newspapers attacked Paul Harris, Dawes’ predecessor as the Bar chairman. The human rights barrister, who has since left Hong Kong after being questioned by national security police, became a target after he suggested changes to the law. Looking ahead, Chan, the Law Society president, meanwhile, spoke of the business opportunities riding on China’s growth. In Beijing’s 14th five-year plan, which laid out the country’s economic and political direction between 2021 and 2025, Hong Kong has been earmarked as a dispute resolution hub and a legal portal connecting the mainland and the West. Echoing Chinese President Xi Jinping’s call to “enhance legal infrastructure facing outward as well as the efficiency of the judiciary, to safeguard national sovereignty, security and development interest”, Hong Kong’s Secretary for Justice Teresa Cheng Yeuk-wah wrote in a recent blog post that her office would step up training to nurture legal talent with international views. At a recent conference on the 25th anniversary of the city’s return to Chinese rule, Chinese Foreign Vice-Minister Xie Feng set out how the government saw Hong Kong’s rule of law as a source of strength for the country, citing it as an “edge” to help the city become a legal hub in the Asia-Pacific region. More than that, Hong Kong should tap into its rule of law to foster the country’s “foreign-related” work in fields such as forming treaties while using its “legal weapons” to oppose overseas intervention, he said. The Law Society’s Chan said he believed Hong Kong would continue to enjoy the advantage of being China’s only common law jurisdiction with much-valued bilingual talent. “So Hong Kong lawyers should grasp these opportunities. On the one hand, enhance yourself … but at the same time, help modernise China,” he said. Some wondered though whether in the new push towards the mainland, the city’s fundamental legal values would be diluted. Young, the HKU scholar said: “We’ll probably see greater convergence in the future, that the mainland system may adopt practices and ideas that come from Hong Kong. And then, we may also learn from and also adapt and borrow good ideas.” Li said he believed the key was through more exchanges. “This will enable judges to understand the mainland. It will also provide an opportunity for the Hong Kong system to be understood,” he said.