Editor’s note: The following are remarks by Grenville Cross SC at the Seminar on Studying and Implementing the Spirit of the Speech of President Xi Jinping, which was held at the meeting celebrating the 25th anniversary of Hong Kong’s return to the motherland and the inaugural ceremony of the sixth-term government of the Hong Kong Special Administrative Region held by the Chinese Association of Hong Kong and Macao Studies on July 18.
I am most grateful to the Chinese Association of Hong Kong and Macao Studies for inviting me to address you today on significant developments in the judicial system since 1997.
President Xi Jinping and the common law legal system of Hong Kong
When President Xi Jinping delivered his seminal address on the future of the Hong Kong Special Administrative Region on July 1, 2022, his observations reassured many people, including within the legal community.
Although the Basic Law makes provision for the continuity of the common law (Art.8), as well as for judicial independence (Art.2) and prosecutorial independence (Art.63), there was some uncertainty over whether these would subsist after 2047, given the “50 years unchanged” provision (Art.5). After he commended Hong Kong for displaying “strong vitality”, President Xi laid those concerns to rest.
In describing the future direction of travel, President Xi indicated that the “one country, two systems” policy has been successful, and “must be adhered to over the long run”. If he had only been referring to the next 25 years, he would presumably have confined his remarks to the “short run”, but he did not, and this can only mean he was looking well into the future, and certainly beyond 2047.
Having recognized that, as part of Hong Kong’s high degree of autonomy, its “judiciary exercises judicial power independently in accordance with the law”, he underlined the importance of the city retaining its “unique status and strengths on a long-term basis”.
Quite clearly, although the HKSAR is the only part of China with a common-law-based legal system, President Xi would not have confirmed its long-term future if the central government did not have trust in it, and it is worth considering how that confidence has been earned after the resumption of the exercise of sovereignty in 1997
Then, to leave nobody in any doubt, he emphasized that the central government “fully supports Hong Kong in retaining its common law system”, and indicated that this is one of the factors that will contribute to the “rejuvenation of the Chinese nation”.
ALSO READ: HKMAO: Xi's speech bolsters confidence, shows way for HK
This is clearly heartening news, as the common law has guided Hong Kong since its earliest days. It has always sought to promote public confidence by ensuring consistent outcomes through the application of the same standards of interpretation, and this provides a degree of certainty for those involved in legal proceedings, enabling people to know where they stand.
The common law depends upon a system of case precedent, and this is not confined to local judgments. Although consistent approaches are primarily achieved through the judgments of the HKSAR’s superior courts, notably the Hong Kong Court of Final Appeal and the Court of Appeal of the High Court, the Basic Law provides that the courts may also refer to the precedents of other common law jurisdictions (Art.84), and this is invariably beneficial.
Through their judgments, the HKSAR’s courts have established the legal principles regulating the relationship between the authorities and the citizen, and between citizen and citizen. These cover such things as freedom of assembly, freedom of speech and freedom from arbitrary arrest. All such rights, underpinned as they are now are by the Basic Law, enable everybody, including the law enforcement agencies, to understand what behavior is acceptable and what is not.
At the heart of the common law lies the notion that an independent judiciary plays a key role in construing legislation, providing reasoned opinions, and ensuring just outcomes, and this inspires confidence.
Quite clearly, although the HKSAR is the only part of China with a common-law-based legal system, President Xi would not have confirmed its long-term future if the central government did not have trust in it, and it is worth considering how that confidence has been earned after the resumption of the exercise of sovereignty in 1997.
ALSO READ: HK civil servants learn the spirit of Xi's speech
Before doing so, however, it should be recalled that it was always Deng Xiaoping’s hope that the “one country, two systems” policy would endure after 2047, and this necessarily included its legal system. If, however, the policy had failed, which is what some people wanted in 2019-20, this would not have been possible.
At this point, it is necessary to step back briefly in time, to the Information Office of the State Council’s white paper on “one country, two systems” of 2014, as this helps to provide a context for President Xi’s conclusions.
The practice of the ‘one country, two systems’ policy in the HKSAR
In its white paper of 2014, the Information Office of the State Council indicated that the central government exercises “comprehensive jurisdiction” over Hong Kong, and is the source of its autonomy. In other words, “one country” is paramount, and “two systems” is subordinate to, and dependent upon, the nation.
The white paper identified the city’s judges as being among “those who administrate Hong Kong”, and, as such, have a “basic political requirement” to love the country. It also indicated that judges have a responsibility of “correctly understanding and implementing the Basic Law”.
Although these were self-evident truths, they attracted the ire of, for example, the Civic Party and its local and foreign allies, who claimed they were “against the principles of the rule of law”, and threatened judicial independence.
At that time, and for some years afterwards, the Hong Kong Bar Association was heavily influenced by the Civic Party. Its higher echelons were infiltrated by people who made common cause with hostile legal entities in other jurisdictions, and one of its leaders, who fortunately did not last long, even belonged to a foreign political party that made no secret of its anti-China agenda.
It galvanized legal opinion against the white paper, even organizing a march by lawyers who were led to believe that the judiciary was being politicized and that the requirement of loving the country was somehow objectionable for judges.
ALSO READ: President Xi's speech makes clear that Hong Kong is entering a new era
Quite clearly, this was pure mischief-making, although it played very well with anti-China audiences everywhere. While judges were considered by the white paper to be “administrators”, because the judiciary is part of the political structure as outlined by the Basic Law, this does not mean they are part of the governance team and it, in no way, affects their objectivity in the determination of cases.
By their judicial oaths, the judges swear allegiance to the HKSAR under the “one country, two systems” policy, and this is not inconsistent with loyalty to the country, or with taking into account national security interests. They honor that oath when they adjudicate on cases fairly, freely and fearlessly, which obviously includes ensuring that governmental acts comply with the law.
In the event, therefore, the white paper in no way threatened judicial independence. As Lord (David) Neuberger, a British non-permanent judge on the Hong Kong Court of Final Appeal and, at the time, the president of the United Kingdom’s Supreme Court, noted, “Judicial independence is not inconsistent with judicial patriotism.”
He explained that, having himself taken a judicial oath of allegiance to Hong Kong, “the way in which judges demonstrate their patriotism is by an irrevocable and undiluted commitment to the rule of law”.
The judicial system in operation since 1997
Once the HKCFA was established in 1997, it became the city’s ultimate appellate body, and a new judicial era was inaugurated. As the successor to the Judicial Committee of the Privy Council, it had big shoes to fill, and it more than rose to the challenge.
Under the leadership of three distinguished chief justices, Andrew Li Kwok-nang, Geoffrey Ma Tao-li and Andrew Cheung Kui-nung, it has achieved much. Although the HKCFA primarily comprises permanent residents, it is also currently serviced by 10 overseas non-permanent judges, and they are not just any old judges.
They include two former chief justices of Australia, Murray Gleeson and Robert French; the former chief justice of Canada, Beverley McLachlin; and two former presidents of the United Kingdom’s Supreme Court, Lord (Nicholas) Phillips and Lord (David) Neuberger.
This is a unique arrangement, and the central government demonstrated great prescience in authorizing it. No other major common law jurisdiction allows overseas judges to serve on its top court, and the decision to approve it for Hong Kong has yielded rich dividends.
As was hoped, the HKCFA enjoys wide public trust, it commands the respect of the business community, and it has close links with the wider common law world, as befits a global city. By working closely together, the local and overseas judges have developed a formidable body of jurisprudence that has served Hong Kong well, and their judgments are often cited with approval by the courts of other common law jurisdictions, which is no mean feat for a small city like ours.
By highlighting the importance of the existing legal system in the long term, President Xi has helped to allay concerns over the city’s future. His indication that the judiciary will continue to exercise its powers independently shows his trust in the common law, and transmits a powerful message to those who have sought to undermine it
ALSO READ: Full text: Xi's speech marking HKSAR's 25th anniversary
Hong Kong’s judges and magistrates, moreover, have not only demonstrated their professional abilities since 1997, but also their courage and determination in upholding the rule of law against pressure and intimidation.
This took various forms, beginning with the petrol bombings of the HKCFA, the High Court and the Magistrates’ Court in 2019, as retaliation for the judiciary having punished those who had created mayhem in order to wreck the “one country, two systems” policy. Thereafter, individual judges were singled out for character vilification and doxxing after they sentenced insurrectionists, while others still received threats to themselves and their families.
Elsewhere, a parallel campaign was mounted against the overseas judges who serve on the HKCFA, with authority figures in their respective countries trying to pressurize them into resigning after the enactment of the National Security Law for Hong Kong in 2020. Even though the new law is human-rights heavy, and despite it having rescued Hong Kong from the chaos that was then engulfing it, the anti-China lobbies ramped up into top gear, doing all they could to weaken the city’s judicial system by forcing the overseas judges into resigning.
Although two buckled on March 30, giving reasons that fooled nobody, 10 did not, and they made it absolutely clear that they were committed to serving the people of Hong Kong to the best of their ability and upholding the rule of law. They thereby showed themselves to be judges of principle, not people of straw, and they demonstrated to the world they could not be pushed around by people whose motives were impure.
Indeed, very few, if any, judiciaries in the common law world have had to face challenges like these, and it was certainly not something any of the judges would have expected when they swore their judicial oath to “safeguard the law and administer justice without fear or favor, self-interest or deceit”. However, once the threats emerged, most of them stood their ground, thereby bringing great credit upon their calling.
Although, in most places, “judicial independence” is simply a catchy phrase banded about by people who want to give their legal system a good look, in Hong Kong, it is a quality that, having been tested, has ultimately triumphed, to the chagrin of the anti-China forces. In consequence, the rule of law itself has emerged even stronger than previously.
The central government, of course, will have witnessed all this, and I feel sure that the way in which the judiciary has conducted itself in what have sometimes been alarming circumstances will have heightened its respect not only for the judges themselves, but also for the common law based legal system of which they are an integral part.
ALSO READ: HKMAO: Xi's visit to HK to boost 'one country, two systems'
After all, any judge can do their job in times of tranquility, but the real test comes in times of turbulence, when the going is tough. Hong Kong’s judiciary has been tested in a way not experienced by most of their counterparts elsewhere, and they have passed with flying colors, an achievement that President Xi will undoubtedly have appreciated.
Significance of President Xi’s commitment to the common law
In his speech, President Xi provided a clear context for the HKSAR’s governance, including its common law arrangements. He emphasized that the central government exercises overall jurisdiction over the city, and that the upholding of the country’s sovereignty, security and development interests is the “paramount principle in the policy of one country, two systems”.
So long as people are prepared to contribute to upholding this policy, there is, he said, an assured future for them in Hong Kong, which is reassuring for people from different traditions. When President Xi identified the need to improve governance and ensure harmony, he clearly recognized that the city’s long-standing legal arrangements are not only still relevant, but have a continuing role to play.
Indeed, these indications, while enhancing public confidence and reassuring the international community, fit neatly into national policy objectives. The maintenance of the common law will, for example, help to secure Hong Kong’s status as a global center for dispute resolution, something envisaged by China’s current Five-Year Plan (2021-25).
As the city develops its role as an international innovation and technology hub, its legal system will be no less important in ensuring its success than it has been previously in upholding its status as a global financial, trading and transportation center.
When, moreover, commercial enterprises, whether local or foreign, take advantage of the opportunities available in the Qianhai Cooperation Zone in Shenzhen, they can choose, when entering into civil or commercial contracts with other parties, to have Hong Kong law as the applicable law, which they find very attractive because of its common law credentials.
READ MORE: Xi's speech hailed for drawing blueprint for HK's future
By highlighting the importance of the existing legal system in the long term, President Xi has helped to allay concerns over the city’s future. His indication that the judiciary will continue to exercise its powers independently shows his trust in the common law, and transmits a powerful message to those who have sought to undermine it.
Apart from the judges themselves, the public and the business community can now see the shape of things to come. This demonstrates that the “one country, two systems” policy that Deng Xiaoping devised in the 1980s is as relevant now as it was then, and that, with President Xi’s backing, it will go from strength to strength as the 21st century unfolds.
Thank you.
July 18, 2022
Grenville Cross is a senior counsel and professor of law, and was previously director of public prosecutions of the Hong Kong SAR.