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National People’s Congress ruling on Hong Kong Legco oath hurt idea of judicial independence: ex-top judge
June 7, 2017 by admin
But city’s former chief justice still backs ‘one country, two systems’ model
In a rare, wide-ranging interview with the Post, the city’s first chief justice after 1997 also spoke out against independence advocacy and in favour of holding on to the “one country, two systems” model for Hong Kong.
A month before the 20th anniversary of the city’s return to Chinese sovereignty, Li said it would be in both Hong Kong’s and the nation’s interest to maintain the formula after 2047, when the guarantee of a high degree of autonomy for the city expires.
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He also shared his optimism for the future of the rule of law, and noted the idea of independence for Hong Kong was “not viable” and “not worth discussing”.
“I understand why the central government considered the circumstances were so exceptional as to justify an interpretation [of the Basic Law] at that time, because issues of sovereignty were involved,” Li, 68, said of last year’s intervention by Beijing.
An interpretation ... would have a negative impact on at least the public perception of judicial independence
“But I have to say that an interpretation in those circumstances would have a negative impact on at least the public perception of judicial independence.”
The mainland’s top legislative body, the National People’s Congress Standing Committee, has the power to interpret the Basic Law and its decisions are binding on local courts.
Li suggested the national legislature should refrain from exercising this power when there was a court judgment.
Last November, the NPC Standing Committee waded into a court case involving two newly elected pro-independence lawmakers whom the government was trying to disqualify over their anti-China antics during their swearing-in ceremony.
Moving before the court delivered its judgment, Beijing prescribed strict rules on oath-taking, effectively disqualifying the pair. The legal profession held a silent march to protest against Beijing’s intervention, while the court officially disqualified the two.
Li acknowledged a gap between perspectives in Beijing and Hong Kong, with the former assuming an interpretation, being valid and binding on the city’s legal system, should not have any negative impact.
“I hope that while Beijing does not accept the Hong Kong view, they understand it, and they appreciate it that it is sincerely held by people in Hong Kong who absolutely accept ‘one country, two systems’, and are trying their best to make it work better. They have no wish to confront the central government, or cause it trouble.”
While recent calls from the mainland to “standardise” such interpretations have touched a nerve among some, Li said he found it difficult to assess the “vague” ideas. He would only say the more open and transparent the interpretation process and the reasons for it, the better.
As for the shelf life of the one country, two systems model, he said: “I see no advantage for China to subject Hong Kong to the same system as the mainland as especially this may well jeopardise its status as an international financial centre.
“We should remain a unique corner of China with our own core values. We should forever remain a vibrant society which is pluralistic, compassionate, and concerned with social justice.”
On Hong Kong’s part, he said, there was a need to enhance understanding of the mainland.
Li was not worried by Beijing’s latest position, as reflected by No.3 state leader Zhang Dejiang last Saturday when he highlighted the central government’s power to “supervise” Hong Kong’s public officials based on their allegiance to Chinese sovereignty.
Li said Zhang’s remarks “were not inconsistent” with judicial independence under the Basic Law, because judges were required to take an oath to uphold the mini-constitution and bear allegiance to Hong Kong as a part of China.
He added that Beijing’s concern about the city’s obligation to enact national security laws was understandable, but he would leave it to political leaders and the community to decide on an appropriate time to proceed.