Hong Kong’s legal system is undergoing ‘nationalisation’, and the opposition must realise this

Tian Feilong says opposition lawmakers’ protests against the disqualification of their peers are misguided, as the case has strengthened the rule of law in Hong Kong and shows increased integration with the Chinese legal system

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Since the change of sovereignty, the common law system of Hong Kong and the characteristics of its legal system have been undergoing a process of “nationalisation”. Illustration: Craig Stephens

Published: 4:22pm, 25 Jul 2017Updated: 6:57pm, 25 Jul 2017

After a court ruling unseated four of Hong Kong’s opposition lawmakers over their invalid oaths, the opposition camp criticised the government for abusing the rule of law for political purposes and working against voters’ wishes. They suggested that the court seemed to have succumbed to the interpretations of the Basic Law by the National People’s Congress and to government pressure.

However, the criticisms are not convincing. First, there is no clear boundary between politics and the law. Rulings for cases such as the oath-taking controversy – which concern the country, the loyalty of the people, the moral principles for people in public office, and the authority of the Basic Law – involve political considerations.

Second, the opposition camp have themselves used Hong Kong’s independent judiciary and the rule of law as political tools to challenge and interfere with government policy, abusing the right to judicial reviews. Their demands are not entirely based on a wish to protect the rule of law.

Oath-taking antics: The acts that got six Hong Kong lawmakers disqualified

In fact, the disqualification case has strengthened the rule of law in Hong Kong, allowing national interests to be gradually included as part of jurisprudence. The case also shows that the common law of Hong Kong is being fine-tuned, improved, and integrated into the Chinese legal system step-by-step.

Watch: Four more lawmakers disqualified over oath-taking

Since the handover, the rule of law in Hong Kong has been maintained and developed according to the common law tradition and under the Basic Law. However, since the change of sovereignty, the original common law system of Hong Kong and the characteristics of its legal system have been undergoing a process of “nationalisation”. The opposition has been resisting the trend, as seen in their attitudes towards interpretations of the Basic Law, and has made use of two political agendas to maintain and strengthen Hong Kong’s “quasi-fully autonomous” status.

Governing Hong Kong according to law is not equal to, but higher than, a high degree of autonomy

First, they have been fighting for universal suffrage, so they can build their governing powers democratically; second, they use the jurisprudence of the Basic Law based on the liberalism in the common law, to hedge against and weaken the jurisprudence of the Basic Law based on the positivism of the central government. Relying on the independent judiciary of Hong Kong and the rule of law, they are trying to shape a constitutional system where the judiciary is supreme, and which can be controlled by them.

The political positioning of this “quasi-complete autonomy” does not comply with the original intent of “one country, two systems”. It may even cause institutional damage to Basic Law principles, such as national sovereignty, security and developmental interests. In order to restrict and balance such political movements aimed at achieving “quasi-complete autonomy”, the National People’s Congress has resorted to institutional tools, such as interpreting the Basic Law.

For example, the interpretation of the Basic Law in 1999 was a rebuttal of Hong Kong courts over their “overstepping review”; the interpretation in 2004 and the NPC decision in 2014 laid out constitutional procedures and specific conditions for universal suffrage; and the interpretation in 2016 aimed at closely safeguarding the election order and oath-taking procedures.

Pro-independence legislators Yau Wai-ching and Baggio Leung, the first two to be disqualified over oath-taking, outside Eastern Law Courts in Sai Wan Ho, on April 28. Photo: Reuters

Beijing ‘would not hesitate’ to interpret Basic Law if Hong Kong hurt by Legco filibustering

Beijing is increasingly focused on “administering Hong Kong according to law”. That is based on the characteristics of “one country, two systems” and of Hong Kong as a society governed by law.