What do the right if abode cases tell us about judicial independence in Hong Kong and, more broadly, about relations between the central government and Hong Kong?

Essay Topic: What do the right if abode cases tell us about judicial independence in Hong Kong and, more broadly, about relations between the central government and Hong Kong?

Introduction

The Basic Law (BL) served as an instrument for the protection of Hong Kong’s autonomy, human rights, freedoms and democracy after the changover in 1997. The right of abode cases in 1999 aroused a great challenge to the concepts of “high degree of autonomy”, “one country, two systems” and most importantly, the judicial independence that were to be enshrined in the BL for the Hong Kong Special Administrative Region (SAR). Through the cases, more people started noticing some relationships specified in the BL between the central and Hong Kong government, that they used to be overlooked.

This essay mainly comprised of three sections. First, I will define what judicial independence is. Secondly, I will then discuss right of abode cases and the drawbacks they have brought to the judicial system in Hong Kong. With reference to the role of the National People’s of Congress (NPC) and the Standard Committee of the National People’s of Congress (SCNPC), I will finally analyze the relationships between the central and Hong Kong government in terms of the legislation and interpretation power of the BL. Generally this paper argues not only the threatening of judicial independence of Hong Kong by those right of abode cases, but also the overwhelming controls of Chinese government over Hong Kong.

Judicial Independence

In most of the constitutional systems, separation of power can be regarded as the pre-condition in achieving judicial independence. According to the Article 2 of the BL, it stated that the judiciary shall be independence from the executive and legislative branches of government, while the Article 85 of the BL stated that “the courts of the SAR shall exercise judicial power independently, free from any interference”.

In the BL, there seems to be no provision of power to the executive which can stipulate an interference to the judiciary. On the surface, therefore, the BL can successfully safeguard the judiciary from the interference of executive branches. Nonetheless, the right of abode cases showed an opposite picture and I will discuss it in the later part of this paper.

On the other side, certain powers vested in legislature may lead to potential interference in the judicial decisions too. According to the Article 73 of the BL, Legislative Council (LegCo) has the power “to enact, amend or repeal laws”. As such, the LegCo may pass laws or ordinances to alter or limit the power of the courts. It can also “endorse the appointment and removal of the judges of the Court of Final Appeal and the Chief Judge of the High Court” (Paragraph 7). Therefore, there is an opportunity for the legislature “to block the way of a particular judge from being appointed or removed” (Weng, 2001, p. 52).

In fact, interference should not emphasis merely on the executive or legislative branches. In a broader sense, “interference should refer to both institutions and individuals, public and private, from inside or outside the judicial system, except where called by law” (Weng, 2001, p. 50).

Right of Abode Cases

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Right of Abode Cases

In January 1999, the Court of Final Appeal (CFA) ruled that all Chinese citizens who are children of Hong Kong permanent residents born outside of Hong Kong have the right of abode in the Hong Kong, irrespective of whether their parents had became a permanent resident at the time of their birth (Asian Human Rights Commission, 2002). However, the Hong Kong SAR government tried to approach the SCNPC in Beijing for a interpretation of the Article 22(4), 22(4)(3) of the BL in order to appeal against the CFA’s earlier ruling.

As a result, these children were not entitled to have the right of abode after the interpretation. In this ruling, the SCNPC said that those who were born before one of their parents became a permanent resident of Hong Kong did not have the right of abode in Hong Kong. For those who quality, the mechanism for gaining right of abode in Hong Kong is to get a one-way permit from mainland authorities before they could settle in Hong Kong.

According to the BL, Hong Kong’s autonomy is to be protected primarily through a legal and judicial system which is separated from China. But the right of abode cases have shown that the CPG attempted to intervene Hong Kong’s internal affairs. It seems that the ultimate judiciary authority in Hong Kong does not have the ‘final say’ over the law’s interpretation and, most importantly, NPC could indeed challenge the rulings of CFA.

From another view, it is considerably controversy for the Chief Executive, Mr. Tung Chee-wah, to ask for interpretation for the sake of overturning a judicial decision. As such, the judicial independence of Hong Kong was seriously threatened more by a precedent set by Hong Hong government itself (or Tung Chee-wah) in seeking reinterpretation rather than by the National People's Congress granting it. The Asian Human Rights Committee (2001) reports, “the Hong Kong government has set a dangerous precedent, effectively giving notice that any time the Court of Final Appeal rules in a way that the executive branch of the SAR find objectionable, it will turn to China for assistance".

In short, there is no doubt to argue that the judicial independence of Hong Kong has been undermined after the right of abode cases few years ago. At the same time, the above discussions do imply some relationships behind, for instance, the central authority retained the final constitutional jurisdiction concerning the relationship between itself and Hong Kong.

Judicial independence is one of the essential yardsticks indicating how much degree of autonomy Hong Kong is having. As a result, the degree of autonomy in Hong Kong after the right of abode cases is not as high as what described in the BL. There may probably be some political influences, opinions or even invisible controls from CPG over Hong Kong. In the following, I will further illustrate these overwhelming controls in terms of the legislative and interpretation powers of the BL.

Legislation Power

As what the BL described, Hong Kong government can legislate its own laws in most circumstances. With reference to the Article 18 of the BL, HKSAR enjoys a high degree of judicial independence since it can maintain its own legal system including the common law and rules of equity. Article 17 of the BL suggested that the HKSAR enjoy extensive legislative power under certain conditions on the condition that “all laws enacted by the SAR legislature must be reported to the SCNPC for recording”.

The Chief Executive of Hong Kong SAR, Mr. Tung Chee-wah, kept emphasizing that Hong Kong would make laws by itself, instead of the NPC. Accordingly, Hong Kong government can legislate on almost any matter that a national legislature is entitled to legislate except foreign affairs and defence. Li (1999, p. 175) adds, “the SCNPC confine to those laws relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by the BL”. So it is not surprising to have the comments from Daniel Fung, Hong Kong’s former Solicitor-General, “No federal state of which I am aware would tolerate a similar degree of separateness or autonomy on the part of any one region within the country” (Li, 1999, 163).

However, many people wondered if the Hong Kong can make laws on its own initiative, free from other opinions, pressures or even instructions from the Central government. Li argues (1999, p. 164), “The Hong Kong SAR was established directly under China’s Central People’s Government and therefore its powers can be limited, altered or even withdrawn by Beijing deemed necessary”.

On the other hand, the Hong Kong government is executive-led in nature which the executive branches have a relatively greater power and responsibility than the legislature in terms of public policy formulation and implementation. Most importantly, the Chief Executive of Hong Kong is not popularly elected and required the appointment from the central government. He or she has “to implement the directives issued by the CPG in respect of the relevant matters provided for in the Law”, according to the Article 48 (8) of the BL. As such, the Chief Executive may not powerful enough to resist the directives when the CPG gives substantial pressures towards Hong Kong’s judicial issues.

Despite Hong Kong has an entitlement in making laws, the SCNPC has the power to return any law that contravening the BL ‘regarding the affairs within the responsibility of the Central Authorities or the relationship between the Central Authorities and the Region”. In fact, it is difficult to define what constitute the “affairs within the responsibility if the Central Authorities” and “the relationship between the Central Authorities and the Region”. As the definitions are so vague that the above terms can be interpreted in any way by the SCNPC or Committee of the Basic Law (CBL). Therefore, there is hard to generate a concrete answer to the question whether a particular law is contravene to the BL and should be returned.

Interpretation Power

Li (1999, p. 172) argues, “if a local law conflicts with an national law, the former must be amended to conform the latter. Otherwise it can be nullified by the constitutional interpreter”. In the case of Hong Kong, the national laws generally do not applied in the Region so that conflicts seldom existed. With reference to the Article 158 of the BL, it delegates the power of interpretation of the BL to the SCNPC. The legislature of Hong Kong may subject to the control by the central government as the SCNPC and NPC hold the powers of the interpretation and amendment of the Law respectively. Hong Kong courts can only review and interpret the matters within the SAR.

The Article 158 of the BL also stated that the Court of Final Appeal (CFA) has to seek interpretation from the SCNPC on the issues “concerning affairs which are the responsibility of the Central People’s Government, or the relationship between the Central Authorities and the Region”. Owing to the unclear definition of what constitutes the matters concerning central-regional relationship, the CFA may have difficulties in deciding when to seek interpretation from SCNPC. As the SCNPC has already made a “reference”, they could have their overwhelming political influences to Hong Kong’s internal affairs through interpretation. Consequently, it is considerably dangerous to the judicial system of Hong Kong in the future. And yet, it is not clear how or under what circumstances that SCNPC will choose to invoke its authority to Hong Kong. In the light of this, the Hong Kong courts should strive to avoid the conflict by the way of seeking interpretation from the SCNPC.

Conclusion

As far as I have mentioned, the interpretation of the BL by the SCNPC for the right of abode cases has certainly hampered Hong Kong in exercising the ‘high degree of autonomy’ and ‘One country, Two systems’. It cannot be denied that these cases have brought substantial erosion of judicial independence in Hong Kong. And, such erosion is destructive and adversely affects the image Hong Kong. In the meantime, the cases have also implied some special relationships between the CPG and Hong Kong government that has always been overlooked under the BL i.e. the central government has the power to alter or influence the Hong Kong’s internal affairs if they wish to do so.

From my point of view, the central government will not tighten the controls over Hong Kong in a near future, though the BL has empowered the CPG to do so. Conversely, the Central government is always trying to take a balance between the holding of national unity and the maintaining of Hong Kong’s high degree of autonomy.

Bibliography

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Asian Human Rights Commission 2002 Hong Kong: Right of abode policy separates families,

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Ghai, Y. 1999 “Interpretation of the Basic Law”, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (2nd ed.), Hong Kong University Press, Hong Kong. pp.189 – 230.

Lee, J. 1999 A Crisis of Public Confidence in Hong Kong :

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Li, Y. 1999 “The Central-HKSAR Legislative Relationship: A Constitutional Assessment. In Wacks, R., The New Legal Order in Hong Kong, Hong Kong University Press. pp. 163 – 181.

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