Beijing could face Hong Kong court hurdles in ruling
THERE were no banners. No raised fists. As night fell on Tuesday, more than 1,000 protesters dressed in black held a silent march through the central business area of Hong Kong. They took care not to jaywalk. Then they quietly dispersed into the night.
Collectively, the hundreds of participants in the march had more power than most demonstrators. They were Hong Kong lawyers, angered by China’s move Monday to effectively rewrite a clause in Hong Kong’s charter in order to prevent two young pro-independence politicians from taking office as legislators.
As a group, Hong Kong’s lawyers say Beijing’s decision to step into a legal case in this city has dealt a blow to its judiciary, famed for its fairness and independence and central to Hong Kong’s success as a global financial hub.
The local bar association called the decision, announced by China’s parliament, “unnecessary and inappropriate” and damaging to the concept of “one country, two systems” that has allowed this former British colony to maintain considerable autonomy from the mainland since the 1997 handover of sovereignty. But many practicing lawyers and legal scholars here also say Hong Kong’s judiciary will have to implement the decision, and in doing so will apply legal standards evolved over centuries of precedent – common law – that may soften or perhaps even stymie Beijing’s will.
“We have to show the world that this is not the accepted norm,” said Dennis Kwok, a lawyer and organiser of the march who also serves on Hong Kong’s 70-member Legislative Council. “It does damage to ‘one country, two systems’, but at the same time we do have faith in the legal system.”
It’s a phenomenon that China may not have foreseen: the artful implementation of a communist legal diktat in a delicate, rules-based system where judges wear wigs, are often educated in England and are trained to make rulings that protect civil liberties. China’s government, accustomed to law being a mere appendage of state power, may be in for an unpleasant surprise.
“I don’t think we should underestimate the power or resilience of the common law to protect the autonomy and rights of the Hong Kong people,” Cora Chan, an associate professor who focuses on constitutional law at the Univer- sity of Hong Kong, said in an interview. “The irony here is Hong Kong courts, being common law courts, would be using common law techniques to interpret an interpretation handed down from a Leninist legal system.”
Beijing’s interpretation, issued Monday by a committee in the National People’s Congress, specifies that office holders in Hong Kong have to “sincerely and solemnly” take loyalty oaths or be forced to vacate their posts, with no chance for a redo.
The ruling came after the two young politicians, Sixtus Leung, 30, and Yau Wai-ching, 25, inserted a derogatory term for China in their oaths. That infuriated Beijing, which bristles at any talk of separatism.
The interpretation of an article in the territory’s governing Basic Law was tailor-made to compel Hong Kong courts and its Legislature to force the duo to vacate their office, and no lawyer interviewed expected the courts to come to their rescue.
But Eric Cheung, who teaches law at the University of Hong Kong, said it was possible that the Hong Kong court that is adjudicating their case could rule that Beijing’s interpretation was not retroactive. That may give the duo a chance to retake their oaths, though he said it would take a brave judge to make a ruling that could invite a new, even more specific, interpretation from Beijing.
The Chinese interpretation was also aimed at preventing people who back Hong Kong’s independence from running for office. In July, Hong Kong’s government introduced a new loyalty pledge, requiring that candidates sign a document acknowledging that the city is an “inalienable part” of China.
Several candidates were disqualified and went to court; that case hasn’t yet been decided. A judge could make a narrow ruling that Beijing’s interpretation applies only to taking oaths, which candidates, as opposed to officeholders, do not have to do.
“If the Chinese government’s ultimate aim is to keep separatists out of the Legislature, then this interpretation is not going to be able to do that,” said Simon Young, a law professor at the University of Hong Kong.
Several lawyers pointed out that Beijing’s ruling was novel because it effectively amended the Basic Law, which serves as Hong Kong’s constitution.
“If you look at it closely, it is more like an amendment, or an addition,” said Peter Chiu, who participated in Tuesday’s march.
That is problematic, because amendments to the Basic Law must be approved by the entire National People’s Congress, which meets once a year, in March. That raises the possibility, however remote, that Hong Kong’s highest court, the Court of Final Appeal, may rule that Beijing’s interpretation, which hasn’t been approved by the entire NPC, is an amendment and not enforceable, Chan said.
That’s the nuclear option. In 1999, the Court of Final Appeal found that it had the power to declare “invalid” acts by the Chinese parliament or its standing committee that violated the Basic Law, Chan said. That kind of weapon – “hard legal controls”, in Chan’s words – is most effective when it isn’t used.
“Simply claiming that courts in Hong Kong have those powers might well give an incentive to China to exercise restraint in issuing decisions or interpretations on Hong Kong,” she said.