By Suzanne Sataline
A Hong Kong court could soon decide on the future legal relationship between the city and the mainland.
Hong Kong’s colonial past is still alive in the city’s courtrooms. There, judges are called “my lord” or “my lady,” and barristers stride in black robes and heavy wigs that ripple with thick skeins of horsehair. The scenes connote sobriety, stability, and, for many Hong Kongers, equality before the law — even though they unfold within the People’s Republic of China, where legal proceedings are cloaked in mystery.
Hong Kong has the only legal system in the world with an independent judiciary that operates within a socialist dictatorship, according to Cora Chan, an associate law professor at the University of Hong Kong. It’s been a struggle to balance the odd marriage between Leninist doctrine and Western common law, especially at those moments when the Communist government tips the scales and privileges party preservation over transparency and fairness.
This week saw one such moment. On Nov. 7, China’s de facto legislature, the Standing Committee of the National People’s Congress (NPCSC), intervened in an ongoing Hong Kong court case and effectively banished two newly elected lawmakers who champion the region’s independence. Sixtus “Baggio” Leung and Yao Wai-ching derided the People’s Republic during their swearing-in ceremony last month, and the city’s executive went to court to bar them from retaking their oaths. Before the judge could rule, the Standing Committee issued a rare legal directive on Nov. 7.
The directive effectively imposes a loyalty test on Hong Kong officeholders, and clouds the future not just of Leung and Yao but of two other lawmakers, whose initial vows were deemed invalid. The document could also prevent pro-independence residents from seeking office and muzzle secessionist talk by opposition lawmakers. “[The central government] is determined to firmly confront the pro-independence forces without any ambiguity,” said Li Fei, the chairman of the Beijing-based committee that oversees Hong Kong’s constitution, known as the Basic Law, as he explained the decision. Hong Kong Chief Executive C.Y. Leung said his government will enact the Beijing doctrine in full.
To advocates of Hong Kong’s legal — if not national — independence, this was a death knell. On Nov. 8, Hong Kong’s lawyers organized a silent march to protest the NPCSC’s decision. Hundreds of lawyers and other residents, dressed in black, quietly walked the city’s streets. Three days earlier, a much larger protest over Beijing’s intrusion drew young Hong Kongers; a few hundred defied police and were pepper-sprayed.
Beijing’s intervention puts the Hong Kong government in a bind. Using a one-sentence line in Hong Kong’s constitution concerning oaths, Beijing expanded the duties of Hong Kong officials and suppressed free speech — a rewriting of city law that violates the established process to amend Hong Kong’s constitution.
If Hong Kong follows Beijing’s directive, as Chief Executive C.Y. Leung has promised, the impact could be enormous. The city would lose at least two lawmakers chosen by popular vote, possibly more, and some legislators critical of the government would be silenced. The directive might also be applied retroactively, legal scholars say, allowing the government to remove more lawmakers whose oaths — or politics — might not match the Beijing line.
Most troubling is that the decision threatens the city’s independence and punctures the 50-year firewall, created in 1997, that protects Hong Kong’s rights and powers from the authoritarian system to the north in a framework called “one country, two systems.”
“This is the most brutal form of intervention with a judicial interpretation,” says Johannes Chan, a law professor at the University of Hong Kong and former faculty dean. “It’s interfering with the judicial process. It’s far worse than any time before … The NPC has no power to make law for Hong Kong, as such. The blow, apart from the fatal blow to the judicial system, is how could anyone have confidence in one country, two systems?”
Nineteen years after Britain ceded Hong Kong to Chinese control, many residents are furious with what they consider Beijing’s encroachments and demands for allegiance. Thousands of people attended a rally in August to support five candidates who were blocked from running for Legislative Council, or Legco, after they voiced support for independence or a referendum on the city’s future. Many protested last year after five employees of a publishing house disappeared, believed to have been kidnapped and detained on the mainland. A Chinese legal decision in 2014 promised free elections in Hong Kong, but only for candidates vetted by Beijing. The resulting fury fanned a vast street occupation that lasted nearly three months.
The Basic Law allows China to step in and issue interpretations of law, but legal scholars who have studied the process to draft the constitution with the PRC say that the intent was not to invite blatant interference in Hong Kong local governance. Yet, the NPCSC has tried to break the spirit of the agreement repeatedly since reunification, at least four times prior to this week. Because Hong Kong’s constitution permits China’s legislature to offer its views, Hong Kong can’t ignore Beijing’s legal decrees, Johannes Chan says, but must find ways to work with or around them.
Hong Kong lawyers are now debating how to handle China’s latest intervention. Hong Kong’s government argued in court on Nov. 10 that China’s directive justified an order to bar Baggio Leung and Yao from office, but lawyers for the dissenting lawmakers, both from the new party Youngspiration, asked that the edict be disregarded.
Other pro-Beijing groups are making use of the Beijing directive. That same day, a member of a taxi driver’s group — one which successfully petitioned the court in 2014 to shut down the street occupation — asked the court to reject eight pro-democracy lawmakers because their oaths had been improper by Beijing’s definition.
“The community is still hopelessly split on this,” Johannes Chan said about city residents. “There are no shortage of people who embrace the NPC interpretation.” He noted the advertisements in some newspapers placed by pro-China associations and commerce groups lauding Beijing’s move. “Society is more polarized and this creates more problems than it resolves.”
What happens next is now in the hands of the Hong Kong judge presiding over the case. He could dodge the constitutional conundrum, decide that oath-taking is a legislative issue, and kick the problem back to that chamber. That would avoid some problems and create others. The president of Legco, who is considered a Beijing loyalist, would be expected to follow the NPC dictates. “They now feel that whenever they interpret the Basic Law they can add whatever they like to it,” says Kevin Yam, one of three conveners of the Progressive Lawyers Group. The Legco president will comply. “Of course he’s going to follow the interpretation, regardless of any legal basis for it … It’s one rotten mess, really.”
Or, the judge could accept China’s legal directive and bar the two lawmakers from office. That might require that the courts review the words and actions of every sitting lawmaker, to ensure their oaths were declaimed “sincerely and solemnly,” as proscribed by Beijing. Ejecting the lawmakers in this way would also neuter the veto power of the legislature’s pro-democracy camp, several lawyers said. What’s more, a decision to follow Beijing’s order would likely invite more interference from Beijing. “The possibilities are endless,” says Yam. “They could interpret Basic Law and vastly expand the scope of executive power under the Basic Law.” Alternatively, the judge could accept a less expansive version of Beijing’s argument, and decide that it applies only to future lawmakers and candidates.
A final option is what Cora Chan calls the “nuclear” choice. In theory, the court could reject Beijing’s paper as a nonbinding opinion that exceeds the framework of Hong Kong’s constitution.
That would risk the wrath of the Chinese Communist Party.
“There’s always this possibility that whatever the courts do, it might antagonize China and China might then issue another interpretation to overrule the court’s understanding,” she says. “One might argue, if you antagonize Beijing, they might take away the entire common law legal system in Hong Kong. That’s a possibility.”
There is precedent, though, for Hong Kong’s resistance. In 1999, the city’s Court of Final Appeal found that Hong Kong judges have the right to reject legislative acts from the NPC or its committee if they are inconsistent with Basic Law. In a 2001 case, Hong Kong judges found that a statement in Beijing interpretation was not binding and had no bearing on common law practice. “The courts,” the justices wrote, “will not on the basis of any extrinsic materials depart from the clear meaning and give the language a meaning which the language cannot bear.”
Cora Chan says Hong Kong could test Beijing’s limits and take a similar approach with the new interpretation; there’s always a chance, she says, that Beijing won’t intervene further.
In the long run, she says, Hong Kong must consider effective controls — political or legal — on Beijing’s power over Hong Kong. In Britain, Parliament is checked through elections. China’s lawmakers aren’t subject to public choice. “Going forward it’s not going to work,” she says. “Without effective political controls, we should probably start exploring other sources of control … We just can’t have a high decision-maker over Hong Kong that is not subject to any limits.”
Whether the interpretation shapes the current court’s decision or not, the battle over national — or local — loyalties is intense. C.Y. Leung, the city’s chief executive, said he will adhere to Beijing’s repeated request to reintroduce a constitutional security act that would bar treason, secession, sedition and subversion. When the proposed amendment, known as Article 23, was last broached, the broad range of offenses enraged the public. Waves of massive demonstrations in 2003 pushed the government to shelve the bill.
“Beijing has no respect for Hong Kong’s legal system at all. So it’s determined to kneecap the judiciary, to kneecap the legislature, and it already has the executive [on its side],” says Alvin Cheung, a Hong Kong lawyer and legal scholar at New York University. Then the government could delay having elections to replace the disbarred lawmakers “to get whatever legislation they want passed. Then they can run the by-elections then and no one who’s remotely sympathetic to democracy would be allowed to run, because they’re all national security threats. Unfortunately, that’s all dangerously plausible.”
Article originally appeared in Foreign Policy on 11 November 2016.