Generation 40s – 四十世代

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Hong Kong’s young democracy campaigners risk losing sight of the real changes needed in society

Anson Au says democracy is just another form of government, far from perfect and equally prone to ideological excess. Instead of chasing universal suffrage, Hong Kong needs to negotiate the best way forward to create a better society

The past couple of weeks have seen a resurgence in the push for democracy among youth in Hong Kong. Zealous cries for a new order have filled the air once more, in the wake of the anniversary on September 28 of Occupy Central, which ignited massive dissent among thousands of youth bound to the vision of democracy.

And just two weeks ago, former governor Chris Patten concluded his four-day visit by rallying Hongkongers to the pursuit of democracy and urging Beijing to consent.

Joined by a host of global media outlets, these sentiments betray a belief in the inherent good of ­democracy – but overlook the purpose of governance itself.

We must stay grounded. ­Democracy, as with all forms of governance, is but a means to an end – which is the establishment of a good society. My research explores what constitutes a good society and what can destroy it, and it shows that the answers don’t lie in any one form of governance.

We must separate ideology from practicality in the context of governance for a good society. As history tells us, it’s when we fail to do so that a society moves to atrocious ­extremes.

First, democracy is not without its dark side. Whereas popular belief holds that it’s inherently good, political research uncovers the ­uncomfortable truth that this isn’t the case. Democracy is not built upon the premise of bringing about “the most good for the majority”. Rather, it’s structured upon “the most good decided by the majority”.

Both modern history and the ­recent past have witnessed atrocities willed into being by the majority of a given society. Minorities in a populace often belong to economically impoverished and politically marginalised categories. As such, they possess significantly less ability to resist convenient and swift suppression by a hostile, intolerant majority. In Yugoslavia, they were the Bosnian Muslims and Croats, popularly hated minorities unable to resist violence by Serb militants.

In the days leading up to the establishment of Nazi Germany, they were the already stigmatised Jews, homosexuals, elderly and disabled – powerless to resist oppression, arrest and cleansing by a regime that channelled, rather than moderated, ideological hatred among the majority.

In Rwanda, they were the Tutsi and moderate Hutu leaders, defenceless against the anti-Tutsi radicalism washing over the Hutu state. The result was the infamous Rwandan genocide, whose ghosts still haunt the nation and human rights committees the world over. When organised by the majority alone, the state becomes a voice for the majority alone – rather than moderate hateful sentiments harboured by the majority, it channels them.

Strongman ­tyrants can ascend to power in democracies by capitalising on ideological fervour and insecurities among the majority. We need not look very far into history: the broad, recent rise of the far right across Europe and America prove the contemporary relevance of this admonition.

Both Geert Wilders in the Netherlands and Marine Le Pen in France championed, to great success, Islamophobia and the rejection of refugees in appealing to lower- and middle-class xenophobia. They were only narrowly beaten by more moderate candidates.

In the UK, Brexit attracted popular support, despite the economic disasters that pundits confirmed it would bring. On the ill-informed, misleading platform that Britain could accrue more capital outside the European Union, Brexit succeeded in convincing a majority more invested in nationalism than practicality. And most recently, Donald Trump rose to the White House by targeting immigrants and trumpeting the purge of big money from governance. Manipulated for their insecurities with employment, a majority rallied behind his claims, despite his very apparent financial conflicts of interest.

Second, Hong Kong is seeing divisions between the young and old. Young adults have lashed out against older citizens for retreating from the push for democracy, ­accusing them of political apathy, or worse, treason against Hong Kong society. But difference should beget discussion, not exclusion.

The legacy of Occupy Central has been … distorted into ideological fervour among youth

Incendiary reactions to difference show how the legacy of Occupy Central has been an improved consciousness of democracy, but distorted into ideological fervour among youth not unlike that of the Red Guard and other cross-national cases in world history. The convergences evoke historical memories of very real dangers.

In China, the Red Guards turned over their families, peers, teachers and schools to state punishment. In Cambodia, French-trained cadres led by Pol Pot swept the country with party purges and fratricides for a modernised, agrarian society.

Both cases show what happens when a country’s young ideologues rally behind a mode of governance for its own sake. Families are divided; the younger and older generations are split; unrest and violence ensue. Institutions embodying tradition are destroyed, and evidence-based assessments of what’s good for society are abandoned. Uprooting a plant always pulls up with it soil, grass, and living creatures. What does a heavy-handed democratic revolution threaten to uproot – policies, relations, institutions – along with the existing mode of governance? What will fill the gaping hole left in the earth afterwards? Who will benefit?

What does a heavy-handed democratic revolution threaten to uproot along with the existing mode of governance?

Third, stop focusing on democracy. Democracy, as with any governance, is only a means to an end. Thinking otherwise gives rise to ideological sentiments with disastrous consequences, as historical precedents have shown.

Furthermore, it distracts us from discussing the changes, the actual fruits of governance, that we want to see. Affordable housing; more ­resources for health services; a better old-age living allowance.

The calls for universal suffrage fail to address how any such issues or policies would be improved.

Real, positive change can only happen in Hong Kong by negotiating at the table, not by overturning it and attempting to build a new one; by engaging with actual policies and relations, instead of an abstract “fight”; by discussing the real, concrete needs of Hong Kong citizens, more than ideals written by a few on paper. We must forego visions of governance motivated by ideology to see the ends, rather than the means, in order to build a better society and prevent disaster.

I do not blame ethnic majorities for extreme crises. Ethnic majorities do not create extreme crises, but they can empower the ones who do: ranging from the endorsement of right-wing fascism to platforms that literally fracture nations.

Democracy claims to benefit all of society, but so does virtually every other mode of governance – what matters is how it is brought to effect.

A system lives for the people – not the other way around. We must refocus on the practical consequences of governance itself.

As Nelson Mandela – at a widely televised New York town hall in 1990 with American news anchor Ted Koppel – said in response to a question about the type of economy he envisioned for South Africa: “We are not concerned with models. We are not concerned with labels. We are practical men and women whose solutions are dictated by the actual conditions existing in our country. It does not matter whether the cat is black or white – so long as it can catch mice.”

Anson Au is a visiting researcher in the Department of Sociology at the Hong Kong Baptist University and a research officer at the LSE Health and Social Care and Department of Social Policy (joint) at the London School of Economics and Political Science.


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With Hong Kong’s young faces of democracy in jail, is civil society being put in chains?

CommentInsight & Opinion
Michael Davis says the political symbolism of locking up young activists over excessive zeal is telling, and the lack of prosecutorial restraint may put at risk the reputation of Hong Kong’s independent judiciary

Last Thursday may qualify as one of the darkest days in Hong Kong’s history. The tragedy of young civic activists being dragged off to jail is bad enough. The political symbolism of Hong Kong’s three “faces of democracy,” being thrown in jail is even more telling. It is as if Hong Kong’s civil society is being jailed.

One can only wonder what the Department of Justice was thinking in pushing the courts to lock up so far 16 of Hong Kong’s dedicated young men and women, over moments of excessive zeal. Is Hong Kong on its way to joining other unsavoury regimes in filling its jails with political prisoners, as the international response suggests? Would prosecutorial restraint have been warranted?

The only logic offered by the government and accepted by the Court of Appeal is “deterrence”. There are deeper social and political issues at stake. Deterring the occasional excess in an otherwise non-violent movement also deters the exercise of valued free expression rights.

To understand the importance of such risk, it is important to know how the Hong Kong political system works. The “one country, two systems” model under the Sino-British Joint Declaration provided Hong Kong with an open rule-of-law-based society, but without the democratic constitutional tools to defend it.

This open autonomous region is lodged under a hardline regime with a strong political ethic of control as a fundamental principle of national security. This regime in its normal practice shows little inclination to exercise restraint.

The executive and legislative branches of the local “autonomous” government are effectively under the appointment and control of the central government, in a largely authoritarian system.

Local officials and appointees depend on Beijing’s approval and have little incentive or inclination to defend Hong Kong’s autonomy or core values.

Rather, the incentives favour a well-developed tendency to lecture Hong Kong on Beijing’s concerns.

The difficult task of defending Hong Kong’s autonomy, rule of law and basic freedoms has been largely left to civil society. Seeking a government that will perform its autonomous role, civil society activists have long promoted democracy as the key to sustaining Hong Kong’s autonomy and associated rule of law, and have kept the drumbeats of freedom alive on the streets by resisting government encroachment.

The local courts have backed this up as the legal guardians of civil liberties. In the common law tradition, this has included restraint in convicting or punishing civil society activists where fundamental rights are at stake. The courts have long distinguished themselves as the only independent branch of government. Will the government’s resorting to the courts to exclude and lock up its political opponents put that reputation at risk?

In protests over Article 23, the high-speed rail, national education, development projects and democracy, civil society activists have long represented core concerns of Hong Kong people.

In the face of countless lectures about how grateful people should be for Beijing’s kindness in giving Hong Kong its freedoms, Hong Kong people have stood their ground to defend those freedoms, as they did again over the past weekend.

Given the complicity of the Hong Kong government in assisting Beijing’s efforts at control, one can only wonder what sort of Hong Kong we would have today without this pushback from civil society. Alternatively, if Beijing had fulfilled its Basic Law promise of democratic reform, would Hong Kong have been more peaceful and less contentious?

Hong Kong civil society has faced a parade of difficult challenges. In Beijing’s 2014 white paper on “one country, two systems”, Hong Kong lawyers and activists were accused of a “confused and lopsided” view. We were told all guarantees in the Joint Declaration and the Basic Law come from Beijing and can be taken away by Beijing.

The local parade of challenges have included Beijing’s foot-dragging over promised political reforms, years of pressure on the media through economic rewards and intimidation, the emergence of corruption as Beijing-friendly businesses and elites are favoured, efforts at national education aimed at brainwashing youngsters in Hong Kong schools, and efforts to stack university councils to vet appointments and bring world-class universities to heel.

With the “umbrella movement”, Hong Kong’s civil society stood up against this degradation, to defend the solemn commitments to democracy and the rule of law. While non-violent civil disobedience involves breaking the law, as recognised by the trial judges in both of this past week’s cases, it has a long tradition as a noble last resort. The common law encourages judicial restraint in overseeing prosecutions where such precious rights are involved.

It seems our politicians have not learned the lesson that repression and unwarranted interference under the undemocratic Hong Kong system will invariably encounter civil society resistance. A government that repeatedly does this has only itself to blame for the increased resistance that follows.

Over the many years since the handover, civil society activism – involving hundreds of thousands of protesters – has, with rare exception, been non-violent.

Now three young civic activist leaders have been given six to eight months in prison for essentially, as found by the magistrate at the trial, climbing a fence to claim the “Civic Square”.

In lockstep with Beijing, the Hong Kong government has now taken to using the courts to eliminate its political opposition.

Through the oath-taking saga, with the assistance of a timely Beijing interpretation, it first took control of the legislature. Now it has gone back to the courts to lock up its civic opponents.

It is in this volatile context, in the shadow of Hong Kong’s rich civil society tradition, that locking up the youthful “faces of democracy” in Hong Kong looks pretty much like an attempt to lock up Hong Kong’s civil society.

Professor Michael C. Davis specialises in constitutional law and human rights

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Why a focus on proper procedure is essential to Hong Kong’s rule of law

South China Morning Post
Comment›Insight & Opinion

Andrew Li

Andrew Li says the growth in the number of applications for judicial review is more a sign that the political process isn’t working properly, and recent remarks by retired judge Henry Litton risk confusing the pursuit of efficiency with the delivery of justice

The citizen’s right of access to the courts to challenge decisions of public authorities by judicial review is an essential feature of our legal system based on the common law. Judicial review by an independent judiciary is fundamental to the rule of law and enables our rights and freedoms to be fully protected. It is rightly regarded as a distinctive feature of our system under “one country, two systems”.

A judicial review challenge cannot be made on political grounds. It must be made on legal grounds. These would include that the challenged decision was inconsistent with statute or the Basic Law, that there had been procedural impropriety in making it, and that it was irrational in the sense that it was beyond the range of decisions open to a reasonable decision-maker.

Consistent with developments in other common law jurisdictions, judicial review cases have increased in the last two decades. The challenges are often funded by legal aid. It is not an exaggeration to say that the growth of judicial review has redefined our legal landscape. This has been due to various factors, including the increase in the volume of legislation for the governance of a complex modern society, the enactment of the Bill of Rights and the Basic Law and citizens’ greater awareness of their rights.

Time and time again, I have tried to explain to the community the nature and limits of judicial review. Judicial review cannot provide a solution to the complex political, economic and social problems which confront our society. The role of the courts is only to determine the limits of legality in accordance with legal principles. Within those limits, the answers to those difficult problems must be found through debate and compromise in the political arena. Citizens must look to the political process for their resolution. The responsibility for the proper and effective functioning of the political process of course rests with the executive authorities and the Legislative Council.

With the growth of judicial review, there has been concern that there have been cases where this process has been abused. In these cases, attempts were made to mount a judicial review challenge on political and not legal grounds. In a recent robust and colourful speech, which is characteristic of this senior legal figure, Henry Litton also expressed such concern.

I too am concerned about this phenomenon. I do not, however, think that attributing improper motives to the unsuccessful applicants in such cases would contribute to a constructive debate on this matter. The common view, which I share, is that this is mainly a reflection of the unsatisfactory functioning of the political process. This is, of course, entirely outside the judiciary’s responsibility.

However, it must be emphasised that the courts have effective ways to stop any attempt to abuse judicial review. Unlike ordinary civil proceedings, an applicant must seek the permission of the court to commence judicial review proceedings. Where such permission is refused, they cannot even begin.

Further, an application must be made promptly and in any event within three months from the time when the grounds first arose unless the court considers that there is good reason for extending time. Moreover, the court may make an appropriate costs order.

Before 2007, the threshold for the granting of permission was relatively low. The test was merely that the case was potentially arguable. In 2007, the Court of Final Appeal discarded this and raised the threshold significantly. The test to be applied is that the court has to be satisfied that there is a reasonably arguable case which enjoys realistic prospects of success. The court observed that it is in the public interest that challenges which fail this test should not proceed.

The granting of permission is an effective filter. By applying this test, the courts are able to screen out attempts to abuse the judicial review process. Many challenges have been stopped in this way.

But once the court is satisfied that the applicant has shown a reasonably arguable case and grants permission for proceedings to commence, the judicial review challenge cannot be regarded as an abuse of the process. Whatever its eventual outcome, the challenge was allowed to commence as the court was satisfied that it had a realistic prospect of success.

Where a judicial review challenge has been allowed to proceed, this may well result in inconvenience to the public authority as it would involve time, expense and delay in the implementation of the decision under challenge. But under the rule of law, convenience and justice are sometimes not on speaking terms.

It would not be right to view judicial review negatively as a nuisance to government. On the contrary, it should be viewed positively.

As our widely respected former secretary for justice, Wong Yan-lung, observed in a speech in 2008: “Effective judicial review is and remains a cornerstone for good governance”. He stated: “I am convinced and … [this] is shared by many … in the government, that the commitment to the high standards of legality, reasonableness and fairness, and the metamorphosis brought about by judicial discipline at times, will improve public administration, and will make Hong Kong a better society and home for our next generation.”

Litton’s speech, as reported in the media, criticised judges for being insufficiently robust in dealing with judicial review cases and the judiciary generally for not meeting contemporary needs. His comments were no doubt well intended. But, in my view, his criticisms are unjustified.

Litton is known to be an enthusiastic advocate of rigorous efficiency in judicial work. Judges must of course deal with cases with reasonable expedition. This is particularly important in judicial review cases. But it must be strongly emphasised that the pursuit of efficiency must not be at the expense of justice. It is of paramount importance to appreciate that the quality of justice must never be compromised.

In dealing with applications for permission to commence judicial review proceedings, a judge must give the matter due consideration before he can decide whether the test of a reasonably arguable case is met. Where he refuses permission, I can understand why, in appropriate cases, a judge decides to deliver full reasons rather than a terse judgment of a few lines. This would enable the disappointed applicant and the public to understand fully why permission was refused. This would enhance respect for the judicial process. Judges should certainly not be criticised for being conscientious or overconscientious.

The impression conveyed by Litton’s speech is that all is not well with the state of the judiciary. In my view, this does not reflect the true position. While there is always room for improvement and reform, I believe that the judiciary is in good shape. There have been many developments in recent years, including civil justice reform, the promotion of mediation and the progress in bilingualism.

I believe that the judiciary continues to be highly respected by the community. We have good and dedicated judges who are fully committed to serving the community by adjudicating disputes, including those involving government, without fear or favour. Our legal system, based on the common law, enshrines the rule of law and is a cornerstone of our society under “one country, two systems”. It commands confidence both within and outside Hong Kong. I have every confidence that it will continue to serve us well in the coming years and beyond 2047.

The honourable Andrew Li Kwok-nang was first chief justice of the Court of Final Appeal from 1997 to 2010

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Can Hong Kong’s new competition law help break the current taxi monopoly?

South China Morning Post
Comment›Insight & Opinion

James Marshall and Karen Leung

James Marshall and Karen Leung say Hong Kong’s Competition Ordinance, which comes into force next month, could provide a vital boost to the so-called ‘sharing economy’

Hong Kong’s tech-savvy consumers expect personalised, convenient and cost-effective services, and the so-called “sharing economy” has developed to meet this demand. New technologies like Uber connect customers directly with suppliers – in this case, by linking passengers with self-employed taxi drivers in more than 300 cities worldwide.

But Uber has been the subject of fierce debate internationally. Taxi drivers have brought cities such as Paris and London to a standstill in protest over new forms of competition. In Hong Kong, the government faces a choice between protecting 18,000 licensed taxi drivers and promoting the growth of this more innovative sharing economy. Could Hong Kong’s new competition law – which comes into force in December – have a role in shaping the outcome?

The sharing economy challenges traditional business models by offering consumers direct access to business owners, and sectors that have previously been highly regulated – including taxis – are feeling the strain. Uber faces the twin challenge of protests by existing market players and increased regulatory scrutiny. There are questions over whether the legislative framework designed for an “offline” world can deal effectively with business models like Uber.

In August, Hong Kong police raided Uber’s office and arrested staff and five driver-partners for allegedly operating unlicensed transport and failing to carry adequate insurance. Uber has not been charged – yet – but it cannot rest easy given the legal maze it still faces. For example, it is not clear whether Uber is even a taxi service or simply a form of technology. It may seem an esoteric point, but until this question is answered, it remains unclear how Uber should be regulated – if at all. While Uber continues to operate in Hong Kong in spite of the uncertainty, consumers may not be able to take full advantage of its innovative business model until the legal picture becomes clearer.

“Private kitchens” are often regarded as Hong Kong’s earliest form of the sharing economy. They emerged as a popular alternative to licensed restaurants more than a decade ago when “home chefs” began feeding customers from their domestic kitchens. Despite such a practice technically breaching health and safety rules, the government responded with a more flexible regulatory regime that balanced innovation and consumer safety. In Hong Kong, it seems that if there is a will to support innovative business models, a way can be found.

Taxi drivers block a road during a protest against Uber in central London. Photo: ReutersSo could Hong Kong’s new Competition Ordinance be the boost Uber needs? Hong Kong has restricted available taxi licences to 18,000 – a ratio of nearly 1 to 400 people. The sector has been relatively protected, with regulatory and policy barriers to prevent unlicensed competitors entering the market. Uber has changed the landscape significantly.

Hong Kong’s new competition law will prohibit abuse of market power and anti-competitive agreements. It remains to be seen how the government, which has invested so much in promoting the ordinance, will respond to a case like Uber – will the new law help break up the current licensed taxi monopoly?

This debate is not confined to Hong Kong. The High Court in London recently dismissed a claim that Uber’s app is a “taximeter” – a device only permitted in licensed black cabs. While competition law arguments have not been at the centre of this case, Uber could potentially challenge restrictions on its operations as an abuse of market power.

The European Commission is also investigating bans on Uber in France, Germany and Spain. Hong Kong shares the same fundamental rules as the UK and EU, so where Europe leads in competition policy, Hong Kong may follow.

Hong Kong prides itself on being one of the most open and pro-business economies in the world. This new legal framework presents an exciting potential new route to fast-track change and innovation.

James Marshall is a partner, and Karen Leung is an associate, in the antitrust and competition team at Berwin Leighton Paisner LLP

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Hong Kong’s judicial independence is here to stay – as long as ‘one country’ and ‘two systems’ are both fully recognised

South China Morning Post
Comment›Insight & Opinion

Andrew Li

Andrew Li believes Hong Kong’s judicial independence and rule of law will thrive beyond 2047

This week will mark the official opening of the new premises of the Court of Final Appeal at the building which housed previously the Legislative Council and originally the Supreme Court. This is an event of great significance.

This will be the court’s permanent home. The renovations are of the highest standard. The community can be justly proud of it. With its central location, this historic monument will stand as a strong symbol of the continuing vigour of the rule of law with an independent judiciary in Hong Kong as part of China under “one country, two systems”. Under the rule of law, no one, however high his position, is above the law.

These are challenging times for our community. We are undergoing rapid changes – politically, socially and economically. In the process of change, the engagement and involvement of our young generation will be essential. In these uncertain times, it is all the more important that the rule of law with an independent judiciary should remain an unshakeable foundation of our society.

A statue of Themis, the Greek goddess of justice, is seen in the basement of Hong Kong’s new Court of Final Appeal building. Photo: EPA

This is an appropriate moment to reflect on the court’s progress over the last 18 years. The court must essentially be judged by the quality of its jurisprudence. It can confidently be claimed that its judgments are widely respected both within and outside Hong Kong where they are increasingly cited. The court has earned its place among final appellate courts around the globe. I believe that, with successive generations of judges, it will go from strength to strength.

The composition of the court has the unique feature of having an overseas judge. The court is made up of five judges. Four are Hong Kong judges: the chief justice and three permanent judges. (Where one of them is unavailable, his place is taken by a non-permanent Hong Kong judge chosen from the panel of retired Hong Kong judges.) The remaining judge is a non-permanent overseas judge selected from the panel which has consisted of eminent jurists from Australia, New Zealand and the United Kingdom. These are the three jurisdictions with whose legal traditions Hong Kong has the closest affinity. Although the remaining judge can be a non-permanent Hong Kong judge, a convention has been established since 1997 that an overseas judge would be selected.

From time to time, reservations have been expressed by some commentators, including academics in mainland China, as to the presence of the overseas judge. One mainland academic expressed the view that all judges of the court should be Chinese nationals with the right of abode in Hong Kong. Recently, another opined that the feature of the overseas judge should be regarded as a transitional arrangement for 50 years. I understand these views. But I respectfully do not agree with them.

It is important to emphasise two matters. First, the overseas judge swears the same judicial oath as any Hong Kong judge: To uphold the Basic Law, to bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and to administer justice without fear or favour. When he sits, he is discharging his duties as and only as a Hong Kong judge in our own times and circumstances. Secondly, he is one member of a collegiate court. The five judges may end up in agreement or disagreement. Each judge is independent and makes an essential contribution. No judge enjoys any special position in judicial decision-making.

The arrangement of the participation of an overseas judge cannot be regarded as any infringement of China’s sovereignty or Hong Kong’s autonomy. In fact, it is by the exercise of sovereignty (by permitting this in the Basic Law ) and autonomy (by making the arrangements) that he is invited to sit.

It is in the best interests of Hong Kong as part of China under “one country, two systems” to have an overseas judge on its final appellate court. First, his participation ensures that the court benefits from comparative perspectives and experience. Secondly, it is an arrangement which has gained the confidence of the public as well as that of the international community. Thirdly, it is conducive to enhancing confidence in the independence of our judiciary. I believe that the participation of the overseas judge should be regarded as a lasting feature of the court. It must be acknowledged that the arrangement is a unique one. But so is the great concept of “one country, two systems”.

In reflecting on the past 18 years, a special feature of the new order should be referred to. As the court had held, the Standing Committee of the National People’s Congress has the plenary power to interpret the Basic Law and any interpretation is binding on the courts in Hong Kong. This power is expressly provided for in the Basic Law and reflects the provision in the Chinese constitution empowering the Standing Committee to interpret laws.

Under the Basic Law, our courts are authorised to interpret it. But the court has the duty to refer the interpretation of the excluded provisions to the Standing Committee. Those provisions are those concerning affairs which are the responsibility of the central government, that is, essentially defence and foreign policy and those concerning the relationship between the central authorities and the region.

Since 1997, the Standing Committee has issued four interpretations: one, in 1999, to override the court’s judgment in the right of abode cases; two, in 2004, to lay down the process for political reform; three, in 2005, to deal with the length of the chief executive’s term; and four, in 2011, upon a judicial reference by the court, to deal with the doctrine of state immunity. The second and third interpretations were issued in the absence of any legal proceedings.

The right of abode episode was very controversial. I believe that it provided a salutary experience in the formative years of the new order. The episode has led to a consensus in Hong Kong and, I believe, also in Beijing that apart from an interpretation of an excluded provision made on a judicial reference by the court, the Standing Committee’s power to interpret should only be exercised in the most exceptional circumstances.

In any event, as I have publicly stated, the Standing Committee should refrain from exercising its power to override a court judgment in Hong Kong, especially one of the Court of Final Appeal. Although it would be legally valid and binding, such an interpretation would have an adverse effect on judicial independence in Hong Kong. I believe that this view is widely shared in Hong Kong. However, my understanding is that it is not shared by the authorities in Beijing. They consider that an interpretation even after a court judgment could be justified in very exceptional circumstances and this should not adversely affect judicial independence in Hong Kong.

The Basic Law contains no sunset clause whereby it will automatically cease to have any effect on June 30, 2047. But it provides that the previous capitalist system and way of life shall remain unchanged for 50 years. This reflects the 1984 Joint Declaration in which China stated that its basic policies regarding Hong Kong will remain unchanged for 50 years.

The destiny of Hong Kong is and will forever be as part of China. Photo: Nora Tam

We are already past the one-third mark of the 50 years. The future after 2047 will be an internal matter for China. I believe that it will have to be settled in the early 2030s. Extensive discussion and consultation will be required. The coming 10-15 years in the run-up to those discussions will be very important.

The destiny of Hong Kong is and will forever be as part of China. In the governance of Hong Kong, the sovereignty of China must always be fully respected. It is always important to remember that “one country” as well as “two systems” are essential and integral parts of the formula. So long as this is fully recognised, I have every confidence and expectation that Hong Kong as part of China will continue to enjoy our own system and that the rule of law with an independent judiciary will continue to thrive in the coming years and beyond 2047.

The honourable Andrew Li Kwok-nang was first chief justice of the Court of Final Appeal from 1997 to 2010