The Heritage Foundation is wrong about HK’s judiciary

The Heritage Foundation was established in 1973, with offices on Capitol Hill, close to the US Congress. Its mission is “to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense”.

For the last 25 years, the foundation has used its Index of Economic Freedom to assess the impact of liberty and free markets around the world. Its latest index, for 2018, examines 180 countries and territories, and arrives at an average 61.1 points out of 100. It concludes that this survey confirms “the formidable positive relationship between economic freedom and progress”.

For the 25th consecutive year, the foundation has adjudged Hong Kong as the world’s freest economy, with a score of 90.2, which is no mean feat. By contrast, the United Kingdom, for example, is ranked at 7th, with a score of 78.9, the United States at 12th, with a score of 76.8, and Germany at 24, with a score of 73.5. Hong Kong, therefore, is well ahead of the pack, and has been for many years.

Given its ranking, Hong Kong is also first among the 43 places surveyed in the Asia-Pacific region. In comparison to 2017, it has actually increased its ranking in such areas as trade freedom, monetary freedom and government integrity. The index notes that Hong Kong “has an excellent record of combating corruption”, which confirms its commitment to a clean society.

However, as regards judicial effectiveness, Hong Kong’s ranking is reduced from 84.3 in 2017 to 75.3, for reasons which are puzzling.

The index, having acknowledged that “the judiciary is independent”, then refers to the right of the Standing Committee of the National People’s Congress to issue interpretations of the Basic Law, thereby “effectively limiting the power of Hong Kong’s Court of Final Appeal”. Quite why the foundation should suddenly have highlighted this issue now, given that the right of interpretation has existed since 1997, is anybody’s guess. There were, moreover, no interpretations in 2018, which makes the downgrade even harder to fathom.

However, the heightened activities of anti-China think tanks and pressure groups on Capitol Hill in recent times are well known, and it is certainly possible that their messages have been taken at face value.

The government, therefore, must set the record straight, so the foundation fully appreciates the actual situation.

The government should explain that, far from being a threat, the NPCSC has only interpreted the Basic Law on its own initiative twice in 21 years, the first in 2004 and the second in 2016. Although there were three other interpretations, these were all at the request of Hong Kong itself. It is clear, therefore, that the right of constitutional interpretation is rarely invoked, and that it certainly does not impair the judicial system.

As the Basic Law’s Article 158 makes clear, an NPCSC interpretation is only ever appropriate in clearly defined circumstances. The Hong Kong courts are empowered, when adjudicating cases, to interpret the Basic Law themselves, provided, of course, this is within the scope of local autonomy. If, however, in interpreting the Basic Law, the courts encounter matters which are the responsibility of the central government, or which concern the relationship between the central authorities and Hong Kong, the NPCSC will need to consider an interpretation.

This mechanism, therefore, provides an interface between the mainland, which adopts the continental legal system of legislative interpretation under the Constitution of the People’s Republic of China, and Hong Kong, which applies the common law system of judicial interpretation. Far from being a concern, the Basic Law clearly identifies which matters are outside of local autonomy, and thereby helps to ensure the success of the “one country, two systems” paradigm. This has worked well since 1997, and it has facilitated smooth relations between the two places.

The foundation’s second area of concern involves the alleged political interference by the mainland in Hong Kong. Reference is made to the banning of a pro-independence political party, which “raised concerns about future prospects for freedom of speech and association”. This concern, of course, is easily rebutted, but again the government must take up cudgels.

When Secretary for Security John Lee Ka-chiu banned the Hong Kong National Party, he said he feared that it might use force to achieve an independent republic. He explained that the party was “building up ties with anti-China and pro-independence activists overseas”, and that it was also spreading “hatred and discrimination” against mainland visitors to Hong Kong. Once, therefore, he reached these conclusions, Lee was entitled to ban the party, as the Societies Ordinance enables him to do this “in the interests of national security or public safety, public order or the protection of the rights and freedoms of others”. No civilized The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR. society can be expected to countenance such conduct, which confronts the rule of law. The United Kingdom, for example, banned National Action in 2016, along with its affiliates, because of its extremist platform.

Although the HKNP is now appealing against the order, the foundation appears to be unaware that rights of appeal are integral to Hong Kong’s legal system. It also does not seem to appreciate that, under the Basic Law’s Article 39, the International Covenant on Civil and Political Rights applies in Hong Kong, and that this guarantees not only freedom of expression, but also of association. There are, however, limits, and the right of association may be limited “in the interests of national security or public safety”, and this happens around the world.

When the government explains all this to the foundation, it should also advise it that Hong Kong has one of the finest judiciaries in Asia, manned by judges of the highest quality who enjoy constitutional protection. Thus, the Basic Law’s Article 85 provides that they “shall exercise judicial power independently, free from any interference”. The Court of Final Appeal, moreover, contains eminent judges from other common law jurisdictions, including the president of the United Kingdom’s Supreme Court, Baroness Hale, her predecessor, Lord Neuberger, and the former chief justice of Canada, Beverley McLachlin. There can be no doubt that the rule of law is safe in the hands of judges of this caliber, and it is one of Hong Kong’s greatest strengths.

Instead, therefore, of simply bemoaning the judicial downgrade, the government must now be proactive. It should trumpet the virtues of Hong Kong’s legal system, so that the foundation will not be under any illusions when it compiles its next index.