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.
US consul general for Hong Kong and Macau Gregory May recently lamented that the latest interpretation of the Hong Kong national security law by the National People’s Congress Standing Committee could erode the independence of the city’s judiciary.
Such a view suggests May has not understood the Sino-British Joint Declaration or the Hong Kong Basic Law, which would be regrettable given his role as US envoy to Hong Kong. But more disconcerting is the fact that such a misunderstanding appears to be pervasive, at least as far as the West is concerned. So let’s try to clear this up once and for all.
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.
In remarks given at a Centre for Strategic and International Studies
event last month, US consul general Gregory May warned that a recent
interpretation of the Hong Kong national security law could “further
undermine the independence of Hong Kong’s judiciary system”.
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.
Doubters need only look back in time to see that all interpretations by the NPC Standing Committee since 1997 were concerned with either the constitution, the Hong Kong-mainland relationship, foreign relations or, as in the latest case, national security; they never strayed outside the powers of the NPC or encroached on Hong Kong’s high degree of autonomy.
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.
One need look no further than the latest spate of proposed legislation in the UK to strengthen national security and restrict strikes and demonstrations to appreciate that the preservation of sovereignty, public order and safety are regarded as important issues of national interest the world over.
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.