Chinese legislature’s right to interpret Hong Kong laws should be respected in the West
- The US consul general’s warning of an erosion of judicial independence fails to understand the nature of Hong Kong’s ‘high degree of autonomy’
- The power of interpretation in a civil law system is legislative in nature, not judicial, and it deals with the constitutional or legislative intent of a law, rather than specific cases
First, the single most important fact of the Joint Declaration is China and the UK’s reaffirmation of Chinese sovereignty over Hong Kong. This is in fact; not in name only. It includes not only China’s right to administer Hong Kong, whether directly or indirectly, but also its right to defend and preserve its sovereignty.
Second, both the Joint Declaration and the Basic Law make it clear that Hong Kong’s “high degree of autonomy” is neither absolute nor complete but a relative autonomy enjoyed by a subject region of China. Its autonomy ends at the clear boundary of constitutional issues, and matters of defence and foreign relations.
It goes without saying that national security is not within Hong Kong’s high degree of autonomy. This is in line not only with the framework of “one country, two systems”, the Joint Declaration and the Basic Law, but also common sense.
Clearly, Hong Kong’s autonomy does not include a right to alienate itself from China under one country, two systems; that would contradict the very concept of Chinese sovereignty over Hong Kong.
Apart from the Joint Declaration and the Basic Law, May and others should also respect the Chinese constitutional order. The NPC Standing Committee, as the name suggests, is an arm of China’s legislature. Under the national constitution, the Standing Committee has the power and duty to interpret the constitution and all national laws, which include the Basic Law and the Hong Kong national security law.
Such power of interpretation, under the continental system, is a form of minor amendment to and elucidation of the national constitution and national laws. It is thus legislative and never judicial in nature.
Such interpretations only deal with constitutional or legislative intent and content and never the merits of any individual litigant. This is a function wholly separate and different from the courts under the common law system. No one who understands the Western concept of separation of powers can pretend not to understand this difference.
If the legislature passes a law for the courts to apply, it does not erode the independence of the judiciary; it simply plays its part in the holistic concept of the administration of justice within the constitutional order of a functioning government.
In any event, all the interpretations have been forward-looking; none has attempted to overturn any court decision. To claim that such an interpretation could erode the independence of our judiciary can only be described as serious misinformation.
One country, two systems is a novel political concept never tried before. However, its basic tenets are still rooted in the common concepts of constitutionalism and individual rights.
At the end of the day, May’s views have less to do with the Joint Declaration, Basic Law or one country, two systems, but more with essential respect for other nations’ independence and national interest. A seasoned diplomat like May should understand this.
Ronny Tong, KC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy