The withdrawal of two eminent British judges, Lord Reed and Lord Hodge, from Hong Kong’s Court of Final Appeal sent shock waves through our legal and judicial circles. Their allegation that the local administration had departed from “values of political freedom, and freedom of expression” drew sharp rebukes from the Ministry of Foreign Affairs. The Hong Kong Special Administrative Region government likewise vehemently rejected the accusation.
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The decision did not come easily to the two justices who had continued to serve on our Court of Final Appeal for more than a year and a half after the implementation of the National Security Law for Hong Kong. On 27 Aug, 2021, Lord Reed actually confirmed that both he and Lord Hodge would continue to serve on our top court as decisions “continue to be consistent with the rule of law”.
The statement issued by British Foreign Secretary Liz Truss welcoming the withdrawal, citing discussions with the deputy prime minister and the lord chancellor, is indicative of the extreme political pressure that had been brought to bear on the two justices.
In Hong Kong, some welcomed the departure of foreign judges from our highest court, as few jurisdictions allow foreign judges to sit on their courts, let alone serving judges of a foreign country’s supreme court.
On the other hand, former chief justice Andrew Li Kwok-nang, who was instrumental in forging an agreement with Britain to send serving judges of Britain’s supreme court to Hong Kong, warned that “the level of participation of overseas non-permanent judges may not be the same as before”. He did not give reasons for his pessimism.
It is timely to revisit why it is important to have overseas participation in our highest court. The arrangement is based on Article 82 of the Basic Law, which says that the Court of Final Appeal may “as required invite judges from other common law jurisdictions to sit on the Court of Final Appeal”. This provision would not have been included but for tacit acceptance of the benefits of overseas participation to Hong Kong’s rule of law.
In the light of many important decisions made by our courts in the past 25 years, I believe the strongest argument lies in the important contributions our Court of Final Appeal, with support from overseas jurists, has made to the implementation of “one country, two systems”.
As a constitutional document, the Basic Law contains many provisions setting out basic structure and relationship, fundamental rights and duties and outlines of Hong Kong’s separate systems that are open to judicial challenge. In the course of adjudicating on numerous judicial review applications involving interpretation of the Basic Law, the Court of Final Appeal has clarified many constitutional issues and laid down many important principles.
For example, in Lau Kong Yung vs Director of Immigration (December 1999), a case involving claims of right of abode in Hong Kong made by some Chinese mainland residents, the court affirmed that the National People’s Congress Standing Committee’s power of interpretation of the Basic Law is a plenary power that is “general and unqualified”.
In passing judgment, Sir Anthony Mason, an overseas judge sitting on the court, observed that the “conjunction of a common law system under a national law within the larger framework of Chinese constitutional law is a fundamental aspect of the principle of ‘one country, two systems’”.
Justice Mason went on to explain that under this unique arrangement, the link between the courts of the region and the institutions of the People’s Republic of China is provided through the “general and freestanding” power of interpretation enjoyed by the Standing Committee under Article 67(4) of the PRC Constitution and Article 158(1) of the Basic Law. He added that although this conclusion might seem strange to a common lawyer, “it follows inevitably from a consideration of the text and structure of Article 158, in the light of the context of the Basic Law and its character as the constitution for the HKSAR embodied in a national law enacted by the PRC”.
This willingness to accept the authority of the Standing Committee as the final arbiter of disputes over interpretation of the Basic Law laid a sound foundation for the region to resolve many subsequent controversies of paramount importance. In Leung Chung Hang, Sixtus vs President of the Legislative Council and Secretary for Justice, heard together (December 2018), a case questioning whether the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance is consistent with the Basic Law, Justice Anderson Chow affirmed that the ordinance is consistent, and cited the binding power of the Standing Committee’s Decision of Dec 27, 2017, on the co-location of mainland and Hong Kong port authorities at the West Kowloon terminus of the high-speed rail. Justice Chow affirmed that under the PRC’s Constitution, the Standing Committee exercises the will of the state. It has the power to supervise the implementation of the PRC Constitution and is part of the sovereign body that authorized the establishment of the HKSAR and its governmental institutions.
The supreme authority of the Basic Law is re-affirmed at the highest level in a recent case, Kwok Cheuk Kin vs Director of Lands, Secretary for Justice & Heung Yee Kuk (November 2021), a case which challenges the discriminatory nature of male New Territories indigenous residents’ right to a small house. The court ruled that Article 40 of the Basic Law, which preserves the “lawful traditional rights and interests of the indigenous inhabitants of the New Territories”, prevails over the general provisions on equality in Articles 25 and 39 of the Basic Law, and relevant provisions in the Bill of Rights Ordinance. Lord Sumption, a retired British Supreme Court judge, was one of the judges who made the landmark decision.
These cases illustrate that the common law system is capable of adapting and thriving in different constitutional and societal contexts, while adhering to fundamental legal norms and principles. The common law systems in India, Malaysia and Singapore have different characteristics from that in the United Kingdom, but all share a common purpose — supporting national interests and the underlying constitutional system. So does our common law system, as affirmed by our highest court. Despite the withdrawal of two British judges who are the victims of underhanded political machinations, it is reassuring that nine overseas judges, including five from Britain, have pledged to stay on. This is a powerful vote of confidence in Hong Kong’s rule of law and augurs well for the continuing success of “one country, two systems”.
The author is a member of the Executive Council and the Legislative Council.
The views do not necessarily reflect those of China Daily.