The US consul general to Hong Kong and Macao, Mr Gregory May, recently lamented that the latest interpretation of the National Security Law for Hong Kong by the Standing Committee of the National People’s Congress is tantamount to an erosion of the independence of our judiciary.
That Mr May seemed to harbor such a notion suggests he has not read nor understood either the Sino-British Joint Declaration or the Basic Law. While this appeared to be unforgivable as far as a consul general to Hong Kong is concerned, a far more disconcerting fact is that his misunderstanding is as fundamental as it is pervasive, at least as far as the West is concerned. So let’s try to clear this up once and for all.
First, the singularly most important fact of the Joint Declaration is China’s and the UK’s reaffirmation of Chinese sovereignty over Hong Kong. This is in fact, not in name only. What this encompasses is China’s right not only to administer Hong Kong whether directly or indirectly, but also exercise, as all sovereigns do, a right to defend and to preserve its sovereignty. All nations have this right. Not just China. It is an internationally accepted fact.
Secondly, both the Joint Declaration and the Basic Law make it clear the “high degree of autonomy” of Hong Kong is not an absolute, complete, or sovereign autonomy, but a high degree of autonomy as a subject region of China. This autonomy ends at the clear boundary of constitutional or national issues, issues of defense and foreign relations. It goes without saying that national security is not within the high degree of autonomy of Hong Kong. This is not only in line with the concept of “one country, two systems”, the Joint Declaration and the Basic Law, but also with common sense. No one can pretend to understand that Hong Kong’s autonomy includes a right to alienate itself from China under the “one country, two systems” principle; that would be wholly repugnant to the very concept of reaffirmation of Chinese sovereignty over Hong Kong, which is the only most important understanding between China and UK under the Joint Declaration.
One needs to look no further than the latest spate of proposed legislations like the national security, anti-strike, and anti-demonstration bills in the United Kingdom to appreciate that the world recognizes the important common national interest of preserving sovereignty, public order and safety
Apart from the Joint Declaration and the Basic Law, people like Mr May also need to pay attention to and respect the Chinese constitutional order. The NPCSC, as the name suggests, is an arm of China’s National People’s Congress, which is the legislature of China. Under China’s Constitution, the NPCSC has the power and duty to interpret the Constitution and all national laws that the Basic Law and the NSL come under. 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 deal only with constitutional or legislative intent and content, but never individual merits of any 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 administration of justice within the constitutional order of a functioning government.
Doubters like Mr May also need to pay heed to facts revealed by history. If one looks back in time at all the interpretations of the NPCSC since 1997, one will see they were all concerned with constitutional issues, Hong Kong SAR-central government relations issues, foreign-relations issues or, as in the latest case, national security issues, and they never strayed outside the powers of the NPCSC and intruded into the sphere of Hong Kong’s high degree of autonomy. In any event, all of these interpretations are forward-looking; none attempted to overturn any court decision. To claim that such an interpretation “erodes” the independence of our judiciary can only be described as proof of serious misinformation if not simple ignorance.
“One country, two systems” is a novel political concept never tried before. However, its basic tenets are still rooted in common concepts of constitutionalism and individual rights. One needs to look no further than the latest spate of proposed legislations like the national security, anti-strike, and anti-demonstration bills in the United Kingdom to appreciate that the world recognizes the important common national interest of preserving sovereignty, public order and safety. At the end, this has less to do with the Joint Declaration, the Basic Law or “one country, two systems”, but more to do with essential respect for other nations’ independence and national interests.
I hope a seasoned diplomat like Mr May will at least understand this.
The author is a member of the Executive Council and a senior counsel.
The views do not necessarily reflect those of China Daily.