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?
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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.
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".
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.
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