Recently, the Hong Kong Special Administrative Region government invited a high-level central government delegation to speak at a seminar, elaborating on the essence of a work report to the 20th National Congress of the Communist Party of China.
The seminar was held in conjunction with a National Constitution Day forum on Dec 4 to reinforce two important messages: The “one country, two systems” policy will be implemented for a long time; and Hong Kong needs to strengthen its mechanism for safeguarding national security.
While Hong Kong society generally welcomes the first message, some people are getting bored with the second one, apparently because of a false sense of security in light of the successful implementation of “patriots administering Hong Kong”, the promulgation of the National Security Law for Hong Kong and the staunch support from the central government in weeding out external interference and remnants of political saboteurs.
In reality, there are two issues that are yet to be addressed under the purview of national security. First, it is incumbent on Hong Kong to enact legislation according to Article 23 of the Basic Law, which will complement the prevailing National Security Law to provide comprehensive legal protection against all forms of national security threats. The HKSAR administration has not announced a timetable for the legislation because of the need to work on specific provisions that are needed to cope with evolving global security concerns.
Second, the controversy over whether an overseas defense counsel should be admitted in media tycoon Jimmy Lai Chee-ying’s national security case has given rise to the question of whether there is any conflict between safeguarding national security under “one country, two systems” and upholding judicial independence.
Conceivably, when asserting judicial independence, one should not assume the common law system, which is a legacy of British rule, is a rigid legal regime that resists any adaptation to the new constitutional order of the HKSAR under the “one country, two systems” framework.
The common law system in force is by and large the same as the one before the reunification. However, circumstances have evolved in such a way that at least two major aspects have changed drastically from the pre-1997 era.
Therefore, if Hong Kong is to safeguard national security while upholding judicial independence under “one country, two systems”, its common law system needs to change with the times. Safeguarding national security and upholding judicial independence in the special administrative region are not in conflict; they can reinforce each other
The change in Sino-British relations is one aspect, as evidenced by the recent proclamation of British Prime Minister Rishi Sunak that the “golden era” of Sino-British relations is over.
How the British judiciary has changed its attitude toward China and the HKSAR is another. Not only did the president of the UK Supreme Court Robert Reed and his deputy Patrick Hodge resign from the Court of Final Appeal in March, citing “concerns” about the NSL, but also the British Foreign Office and Parliament demonstrated their hostility toward Hong Kong by threatening to withdraw all British judges serving in the city.
Even though a prominent British barrister is supposed to be shrewd enough not to comment on the practice of “one country, two systems” in the HKSAR, common sense suggests that a Briton of high social status usually maintains close ties within British political circles.
Against this background, the involvement of a British counsel in a high-profile national security trial, which could become a precedent case, poses a real risk of compromising the HKSAR’s national security mechanism.
Therefore, if Hong Kong is to safeguard national security while upholding judicial independence under “one country, two systems”, its common law system needs to change with the times. Safeguarding national security and upholding judicial independence in the special administrative region are not in conflict; they can reinforce each other.
Hong Kong has to proactively explore how to align its common law system with the continental law system that is practiced in the mainland. After all, any system — including a legal system — must keep abreast of the times.
Furthermore, there is a need for Hong Kong to install a “safety valve” between Hong Kong’s common law system and that of the US’ and the UK’s, lest anti-China forces in these two countries infiltrate the HKSAR and sabotage China by leveraging the common law system.
Last but not least, Hong Kong’s judiciary, while striving to maintain its stability, should undertake reforms in response to the change in the actual situation.
In line with the country’s foreign policy goal of building a community with a shared future for mankind, Hong Kong is in a position to establish and maintain cordial relations with other jurisdictions and their legal practitioners who are friendly to China. As long as the ongoing once-in-a-century paradigm shift in global governance does not veer off course too much, Hong Kong can keep the practice of enlisting foreign judges and lawyers, who shall be allowed to represent either the prosecution or the defense side in court cases other than national security cases. As to the local legal practitioners, they must pledge allegiance to the HKSAR and strictly observe the country’s Constitution and the Basic Law.
The author is a senior research fellow of China Everbright Holdings.
The views do not necessarily reflect those of China Daily.