法治 Rule of Law
今年正值香港回歸二十週年，劍橋大學香港及中國事務會 (University of Cambridge Hong Kong and China Affairs Society) 與倫敦經濟與政治學院HKPASS聯手合作，一連四天出
In light of the 20th anniversary of Hong Kong’s Handover, the Cambridge University Hong Kong and China Affairs Society and the LSESU Hong Kong Public Affairs and Social Service Society jointly present our Handover series -- ‘A Place Like Hong Kong’. The series features major societal events that shaped Hong Kong in the past 20 years, and how the core values, deemed the cornerstone of our society, have evolved since then. While analysing the timeless societal values our society holds dear, we wish to explore with you the future of Hong Kong.
When one mentions the constitutional principles of Hong Kong’s ‘rule of law’, most evoke conceptions of equality, judicial independence and the fairness of judgement as embodiments of this very core value. The legal system of Hong Kong remains a source of pride for Hong Kong people and the sanctity of ‘rule of law’ remains our most treasured core value. So how does the Basic Law protect this core value and does it translate to our wider society?
Transparency and Fairness
Article 85 of the Basic Law dictates that the courts of the HKSAR shall exercise their judicial power independently, free from any interference. This is protected by the stipulation that members of the judiciary shall be immune from legal action in the performance of their judicial functions. Moreover, the transparency and fairness of our legal system is protected by a high standard of judges, as the Basic Law dictates that HKSAR judges must be appointed by the Chief Executive upon the recommendation of an independent commission composed of local judges, persons of the legal profession and eminent persons from other sectors.
Equality of all
According to Article 25 of the Basic Law, all Hong Kong residents shall be equal before the law, and under the same constraints, regardless of whether it is the government or a citizen under question. Concurrently,as per Article 27 and 28, all Hong Kong residents receive the same inviolable freedoms and protection -- of speech, press, publication, association, assembly, procession and demonstration among others.
Judicial decisions are not influenced by executive and legislative branches of the HKSAR Government. According to Article 2 of the Basic Law, the NPCSC authorises HKSAR to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication. Independent branches of government prevents the abuse of power by any singular branch, allowing decisions surrounding the rule of law to be influenced by courts and only courts, protecting judicial independence.
The Basic Law protects the freedom, property and livelihood of the Hong Kong people, creating a stable and prosperous environment that fosters Hong Kong’s position as a global financial hub. In a fair, transparent and equal system, businessmen and investors can have confidence in the financial environment of this city. An independent judicial system translates into better implementation of policies, lending to the protection of the rights and freedom of Hong Kong people.
Article 158 of the basic law grants the National People’s Congress (NPCSC) the power to interpret the law under three criteria; that it either concerns affairs that are the responsibility of Beijing or its relationship with Hong Kong, is issued at the request of the Hong Kong Court of Final Appeal (CFA) (except when it concerns China’s sovereignty), and is an interpretation rather than an amendment of the law. In the 20 years since Hong Kong’s handover, the NPCSC has interpreted the basic law five times, twice initiated by the Chief Executive, twice initiated by the NPCSC, and once by the CFA.
Here’s a brief history of how the NPCSC has interpreted the basic law in the past.
The Right to abode, 1999
Initiated by the HKSAR government, it concerned the question of whether children born in the mainland before their parents became permanent residents of Hong Kong qualified for a right to abode in the territory under Article 24. In the Ng Ka Ling and Chan Kam Nga cases of 1999, the CFA ruled that all children born of permanent residents regardless of when they were born had the right to abode in Hong Kong. However, if the CFA’s decision was implemented, the HKSAR government estimated that 1.6 million mainland residents would immigrate to Hong Kong over the next ten years, which was a burden Hong Kong could not cope with.
The NPCSC overturned the CFA’s judgement, saying it was ‘not consistent with the legislative intent’; their interpretation was that children born outside Hong Kong will be qualified for the right to abode if at least one of their parents had a permanent resident status at the time of their birth. According to NPCSC, the applicants for the right to abode in Hong Kong should also apply for permission from mainland authorities before entry to Hong Kong.
The election of the Chief Executive, 2004
Initiated by the NPCSC, two new rules were added to the process of electing a chief executive; which according to Article 45 of the Basic Law, should be elected by universal suffrage. The NPCSC added that the chief executive must first report to the NPCSC about any amendment to the method of election, and that only the NPCSC can decide when it is necessary. It preserved the status quo of having the Chief Executive chosen by an election committee under the effective control of Beijing, and the majority of seats in the Legislative Council elected by narrowly defined professional groups, ignoring the provisions in the Basic Law annexes that allowed for amendments to Hong Kong’s election system after 2007 and the obligation in Article 45 and 68 of Basic Law to move towards universal suffrage.
Replacing a Chief Executive, 2005
When Chief Executive Tung Chee-Hwa asked to resign from office in March of 2005, neither the Basic Law Article 53 nor the Chief Executive Ordinance specified what should happen next. The acting Chief Executive, Donald Tsang, requested an interpretation of the Basic Law and proposed that the succeeding chief executive should fulfill the remainder of Tung’s Term. NPCSC interpreted the law to agree with Tsang in this instance.
Diplomatic Immunity, 2011
Initiated by the Court of Final Appeal, the need for NPCSC interpretation stemmed from the Congo case in 2008. US Company FG Hemisphere Associates LLC (FG), a creditor to the Congo, wanted to seize $102 million of the entry fees for mining rights paid by China Railway Group to satisfy debts that Congo owed. Hong Kong Courts in 2010 ruled in favour of FG, stating that states do not have strict immunity in commercial proceedings. Congo took the case to CFA and CFA requested NPCSC interpretation; Beijing ruled that since the Central Government was responsible for Hong Kong’s foreign affairs, Congo should have the right to diplomatic immunity.
Taking the oath for office, 2016
NPCSC’s 5th interpretation comes after Youngspiration Party’s Leung and Yau declared Hong Kong a nation and used a racial slur to refer to China during their swearing-in ceremony on Oct 12. The HKSAR government filed a judicial review application to ban the two from re-taking their oaths. NPCSC passed the bill to intervene on the 5th of November 2016, enforcing the sanctity of the oath-taking process. On the 15th of November, the High Court of Hong Kong revoked Leung and Yau’s legislator positions.
According to CUHK’s survey findings on views on Hong Kong’s core values, over 90% of the 804 respondents strongly agreed or agreed that ‘rule of law’ (92.7&) and ‘just and corruption-free’ (92.3%) are the core values of Hong Kong. Moreover, among the 11 values that were deemed as Hong Kong’s core values, the largest proportion of respondents voted for ‘rule of law’ and ‘freedom’ as the most important one.
As one of the most treasured core values of Hong Kong society, ensuring that our legal system retains its judicial independence and trust of the Hong Kong people is of the utmost importance. Yet, it is not without reason to suggest that this trust between the people and the rule of law has wavered in the past few years under strain from political scandals such as the oath-taking debacle and the increasing issue of post- 2047 matters. In an SCMP article, ex-Court of Final Appeal Judge Henry Litton lambasted Hong Kong’s legal system for misusing judicial reviews and ‘sleepwalking’ towards 2047 without concrete plans for Hong Kong’s legal future. Litton argues that judgements derived from judicial reviews are ‘so obscure’ that no one can understand them, to the point that it is ‘drowning in irrelevance’; Moreover, he adds that failings in the judicial review has led to costly repercussions to the Hong Kong society, citing the delays and cost overruns of the Hong Kong-Zhuhai-Macau Bridge as a result of a ‘misjudged’ court case between a Tung Chung resident in 2010 and the director of environmental protection as a prime example of such failings.
Yet despite the wavering confidence in Hong Kong’s legal system lately, the city’s rule of law still ranks among the Top 20 in the world, reminding us that the general principles of the Basic Law are still protected, and that our fundamental rights and duties endowed upon us by the legal system remain inviolable.We are all equal before the law, our freedom of speech, press and publication, among others, are still inviolable, and our capitalist system is still under provision to remain unchanged for the next 50 years. Yet this is perhaps the biggest question facing this beloved core value -- what will happen after 2047? Will China grant Hong Kong an extension of the current autonomy and Basic Law? Will China only grant Hong Kong some but not all of our current privileges? Or will Hong Kong lose its special status and simply become a normal Chinese province without any autonomy? Food for thought.