Hong Kong Basic Law

Beijing scholar says Hong Kong judges’ ‘different understanding’ of Basic Law is behind ‘great disparity’ in court cases

But city’s top lawyers counter remarks by legal head of central government liaison office reflect ‘unfamiliarity’ with local system

PUBLISHED : Saturday, 21 April, 2018, 8:48pm
UPDATED : Saturday, 21 April, 2018, 11:26pm

A Beijing legal heavyweight has rekindled controversy by suggesting Hong Kong judges have a “different understanding” among themselves of the city’s mini-constitution that at times produced “great disparity” in their adjudicated cases.

Speaking at a seminar in the city on Saturday, Wang Zhenmin, the legal head of Beijing’s liaison office in Hong Kong as well as a mainland law scholar, defended the national legislature’s interpretations of the Basic Law. In response, the city’s top lawyers said his comments reflected an “unfamiliarity” with the local legal system and required greater faith in it.

Final interpretation of the Basic Law rests with the National People’s Congress Standing Committee, while courts in the city are empowered to interpret its clauses under the common law system. Hong Kong has seen five interpretations of its mini-constitution since the city was handed over from British to Chinese rule in 1997. The matters ranged from constitutional development to, most recently, a controversial oath-taking ruling in 2016 that led to six pro-democracy lawmakers being disqualified.

Defending the NPCSC’s past interpretations and comparing those of the city’s judges, Wang said: “In terms of quantity, frequency, depth and scope, the Hong Kong courts’ interpretations of Basic Law clauses far exceed those of the NPCSC’s.”

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“As all courts and judges are entitled to interpret the Basic Law [when hearing cases], different judges and courts have different understandings, resulting sometimes in great disparity when trying cases,” he added, without stating specific examples. 

Li Fei, former head of the Basic Law Committee, made a similar point in an interview last July with pro-establishment magazine Bauhinia addressing local courts’ authority to interpret.

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“It doesn’t mean each and every single case should be brought to a constitutional level,” he said at the time. “A lot of commercial disputes could be resolved by local legislation.” 

City lawyers hit back at Wang’s remarks, saying he did not properly understand the local legal system.

Speaking in a personal capacity, Bar Association chairman Philip Dykes told the Post there was no point comparing how NPCSC interpretations differed from those of local courts.

“That’s part of the Basic Law and what we signed up to do when the Basic Law was promulgated.” 

They shouldn’t be that terrified if only one or two judges’ decisions are not to their liking
Ronny Tong Ka-wah, senior barrister

Dykes said Wang’s remarks “could reflect unfamiliarity” with both the local legal system and common law interpretations and that not every discrepancy was a “tension or conflict”.

Ronny Tong Ka-wah, a senior barrister and adviser to Chief Executive Carrie Lam Cheng Yuet-ngor, said he understood Beijing preferred that Hong Kong’s top court – the Court of Final Appeal – handle “authoritative interpretations” of the city’s internal affairs, while leaving constitutional issues to the NPCSC. But he added it was impossible to bar lower courts from making interpretations.

Practically speaking, any legal party could raise an argument under the Basic Law “and the judge has to deal with it,” Tong said. “He cannot say, ‘Wait a minute, let me ask the Court of Final Appeal’ before resolving the incident’.”

“As the Basic Law has empowered Hong Kong with an independent judiciary, Beijing should trust Hong Kong’s legal system,” he added. “They shouldn’t be that terrified if only one or two judges’ decisions are not to their liking.”