Hong Kong’s legal system is undergoing ‘nationalisation’, and the opposition must realise this

Tian Feilong says opposition lawmakers’ protests against the disqualification of their peers are misguided, as the case has strengthened the rule of law in Hong Kong and shows increased integration with the Chinese legal system

Legislative Council oath-taking saga

Tian Feilong

Published: 4:22pm, 25 Jul 2017

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After a court ruling unseated four of Hong Kong’s opposition lawmakers over their invalid oaths, the opposition camp criticised the government for abusing the rule of law for political purposes and working against voters’ wishes. They suggested that the court seemed to have succumbed to the interpretations of the Basic Law by the National People’s Congress and to government pressure.

However, the criticisms are not convincing. First, there is no clear boundary between politics and the law. Rulings for cases such as the oath-taking controversy – which concern the country, the loyalty of the people, the moral principles for people in public office, and the authority of the Basic Law – involve political considerations.

Second, the opposition camp have themselves used Hong Kong’s independent judiciary and the rule of law as political tools to challenge and interfere with government policy, abusing the right to judicial reviews. Their demands are not entirely based on a wish to protect the rule of law.

Oath-taking antics: The acts that got six Hong Kong lawmakers disqualified

In fact, the disqualification case has strengthened the rule of law in Hong Kong, allowing national interests to be gradually included as part of jurisprudence. The case also shows that the common law of Hong Kong is being fine-tuned, improved, and integrated into the Chinese legal system step-by-step.

Watch: Four more lawmakers disqualified over oath-taking

Since the handover, the rule of law in Hong Kong has been maintained and developed according to the common law tradition and under the Basic Law. However, since the change of sovereignty, the original common law system of Hong Kong and the characteristics of its legal system have been undergoing a process of “nationalisation”. The opposition has been resisting the trend, as seen in their attitudes towards interpretations of the Basic Law, and has made use of two political agendas to maintain and strengthen Hong Kong’s “quasi-fully autonomous” status.

Governing Hong Kong according to law is not equal to, but higher than, a high degree of autonomy

First, they have been fighting for universal suffrage, so they can build their governing powers democratically; second, they use the jurisprudence of the Basic Law based on the liberalism in the common law, to hedge against and weaken the jurisprudence of the Basic Law based on the positivism of the central government. Relying on the independent judiciary of Hong Kong and the rule of law, they are trying to shape a constitutional system where the judiciary is supreme, and which can be controlled by them.

The political positioning of this “quasi-complete autonomy” does not comply with the original intent of “one country, two systems”. It may even cause institutional damage to Basic Law principles, such as national sovereignty, security and developmental interests. In order to restrict and balance such political movements aimed at achieving “quasi-complete autonomy”, the National People’s Congress has resorted to institutional tools, such as interpreting the Basic Law.

For example, the interpretation of the Basic Law in 1999 was a rebuttal of Hong Kong courts over their “overstepping review”; the interpretation in 2004 and the NPC decision in 2014 laid out constitutional procedures and specific conditions for universal suffrage; and the interpretation in 2016 aimed at closely safeguarding the election order and oath-taking procedures.

Pro-independence legislators Yau Wai-ching and Baggio Leung, the first two to be disqualified over oath-taking, outside Eastern Law Courts in Sai Wan Ho, on April 28. Photo: Reuters

Beijing ‘would not hesitate’ to interpret Basic Law if Hong Kong hurt by Legco filibustering

Beijing is increasingly focused on “administering Hong Kong according to law”. That is based on the characteristics of “one country, two systems” and of Hong Kong as a society governed by law.

The principle of governing Hong Kong according to law is not equal to, but higher than, a high degree of autonomy. It is the main way for Beijing to fully and accurately implement “one country, two systems”. A high degree of autonomy is a part of the rule of law. By institutionalising its governing powers, Beijing can have grounds for normalising its governance of Hong Kong in accordance with law. This was not prominent in the past 20 years, but will be in the future.

Watch: Hong Kong – 20 years in four minutes

Further, the “Belt and Road Initiative” and the Greater Bay Area are accelerating the growth of the national economy and regional integration. This may also bring fundamental changes to the old-style governance thinking of “seeing Hong Kong from Hong Kong’s perspectives”, while ushering in a new era in which “one country” integrates with “two systems”.

The opposition camp should update their views of the world and their country, and also reduce their reliance on international intervention and their passion for localism.

Lawmakers Eddie Chu Hoi-dick (left) and Cheng Chung-tai meet the media about the disqualification of the four opposition lawmakers, at Tamar on July 17. Both face a civil action in an attempt to unseat them as well. Photo: Felix Wong

More Hong Kong pan-democrats in ‘highly risky’ position after ouster of four lawmakers

The court has explained the legal principles for the ruling on the disqualification case. This case, and the one involving localists Yau Wai-ching and Sixtus Baggio Leung Chung-hang, have become authoritative precedents for oath-taking cases. The cases link up and integrate the NPC interpretations and the case law, making them key components of the city’s legal system. As the judgment positively interpreted and recognised Chinese sovereignty as stipulated in the Basic Law, this manifests the intention to recognise and protect national interests.

The rule of law is conservative and cannot serve simply as a supporter for ‘adversarial politics’

Such a shift in the rule of law in Hong Kong has surprised the opposition camp, but is inevitable.

First, the rule of law is conservative and cannot serve simply as a supporter for “adversarial politics”.

Second, social movements in Hong Kong have become increasingly radical, affecting the rule of law. The court has a constitutional duty to rebuild it, so as to rebalance legal principles for the rights of protesters and the public order.

Third, the NPC interpreted the Basic Law based on the intent of legislation and the will of the country. Statutory bodies must follow and apply the interpretations, and this is part of the spirit of the rule of law.

Fourth, since Hong Kong’s judiciary is more authoritative than its legislative and executive bodies, judges must assume a more prudent constitutional responsibility. They should also be encouraged to create new and unique precedents under the Basic Law to build a new rule of law for Hong Kong. They should no longer simply see Hong Kong as a region where the common law is applicable.

Tian Feilong is an associate professor at Beihang University’s Law School in Beijing, and a director of the Chinese Association of Hong Kong and Macau Studies

This article appeared in the South China Morning Post print edition as: Lega lly bou nd

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