Judicial Independence Under Rising Threat in Hong Kong

Beijing has just delivered the biggest blow to Hong Kong’s judicial independence since the 1997 handover. It has intervened to pre-empt a judgment by Hong Kong’s courts on interpretation of local legislation by claiming the issue falls directly under the Basic Law, Hong Kong’s mini-constitution, for which the final interpreter is the National People’s Congress.

It remains to be seen how far the NPC now goes with its pending ruling but could well go beyond the oath-taking specifics to demand more evidence of loyalty to itself and restrict discussion of issues such as independence of any current part of the PRC plus Taiwan.

Whatever the details the very fact of the NPC making a ruling before the Hong Kong courts had first ruled on it indicates that China will use the NPC to impose its will on issues which appear to be solely the concern of Hong Kong but which are seen as politically significant by Beijing.

The long-term consequences of this for Hong Kong’s role in the region are very serious. The issue has caused widespread unease not merely among pro-democracy critics of Beijing but from many pro-government figures in Hong Kong, and the legal profession.

On Nov. 6, a crowd estimated by police at 8,000 people and 13,000 by protesters took to the streets to demonstrate against the decision. The protest ended when police broke it up as protesters hurled bricks at them.

The case arose from the actions of two young newly elected legislators, Yau Wai-ching and Baggio Leung, making a nonsense of the Legislative Council swearing-in ceremony by referring to the “Hong Kong nation” and to “Cheena” – a derogatory Japanese term for the country.

The oaths were voided but the President of Legco subsequently decided (though then reversed himself) that the two could re-take the oath. This decision was immediately challenged by the government. A decision on the case was awaited. But rather than wait for the local courts to decide the issue Beijing decided to step in with an NPC ruling which may go well beyond the specific case and law to erect new barriers to freedom of speech.

Even the government itself and some pro-Beijing politicians were annoyed that the matter was not allowed to go through the local court system. Even in the (unlikely) event that the government lost, it would still have been able to appeal to the NPC and win.

That Beijing has intervened now clearly shows it is determined to use the rather juvenile behavior of the two localists to tighten its grip on a rebellious Hong Kong. That could well mean that however unpopular he may be with the public and with large sections of the elite, it will continue to back Hong Kong’s hard-line Chief executive Leung Chun-ying for a second term when the selection process reaches its climax in March.

In the past the NPC has overturned two significant Hong Kong court decisions. One was on right of abode for mainland-born children with a Hong Kong parent. This was at the request of the Hong Kong government which had provided deliberately exaggerated figures of the numbers involved. In another it trashed commercial norms by giving protection to a company owned by the government of the Democratic Republic of Congo on grounds of sovereign immunity, For Beijing, some minor diplomatic gain justified an extraordinary and damaging NPC decision.

The NPC move on the oath-taking case is naturally being supported by the most senior of Hong Kong’s members of the NPC, Maria Tam and Rita Fan. “It is an important issue involving national unity and territorial integrity” claimed Tam. Hong Kong people need no reminding that both Tam and Fan were originally among the foremost advocates of the colonial government, persons of modest personal achievement who got to influential positions of influence in the executive and legislative councils by being accommodating.

Both switched sides in time to become two of Beijing’s favorite acolytes. (Tam had earlier been removed from the Transport Advisory Committee for failing to declare her large personal interest in the taxi ownership business, one of Hong Kong’s most notorious, government protected oligopolies).

Given such background, hearing the likes of Tam and Fan, both now 71, talk of patriotism partly explains the rage of local youth as represented by the two would-be legislators. Nonetheless, the two must take some blame for what has now happened by having so enraged a Beijing in the grip of the notoriously intolerant Xi Jinping with his centralist demands and aggressive nationalism.