As Hong Kong’s judges and senior lawyers paraded in ceremonial wigs and gowns on Jan. 8 to mark the start of the legal year, anxieties over China’s growing reach into the territory’s vaunted legal system swirled with the wintry winds.
At a private cocktail reception with leading judges before the event, one of the topics of discussion was concerns over Beijing’s influence in the judiciary, said one participant, who requested anonymity.
Hong Kong’s judges are increasingly expressing such fears in private, concerned that interpretations and amendments from China’s National People’s Congress (NPC) could soon force them to curb the territory’s freedoms, according to interviews with four veteran judges, as well as with sources close to several others.
The judges interviewed said that while they believe the independence and integrity of the judiciary remains intact, such interpretations could effectively mean Beijing is telling them what to do, limiting their authority on key political and security issues.
“We know Beijing has their own fears [about Hong Kong], but if they interpret too frequently, the risk is they will leave us nothing left on which to rule,” said one judge, a veteran of Hong Kong under both British and Chinese rule.
Such remarks are highly rare from Hong Kong judges, who tend to be cautious and are prevented by convention from publicly raising political issues.
Hong Kong’s rule of law is widely seen as a cornerstone of the territory’s international reputation as a business hub, key to protecting its autonomy from a Chinese Communist Party leadership wanting greater control.
Any erosion of that reputation could undermine Hong Kong’s relative attractiveness as a business center for investors compared with Chinese cities such as Shanghai or Shenzhen, or regional rival Singapore.
Neighboring Macau has also been facing such pressures.
China’s Hong Kong and Macau Affairs Office, which is overseen by the Chinese State Council, did not immediately respond to questions from Reuters.
Hong Kong’s legal and social freedoms are far greater than those that exist across China, and like Hong Kong’s separate legal traditions that are based on common law, they are detailed in a mini-constitution known as the Basic Law under a “one country, two systems” formula.
While Beijing’s leaders publicly say they respect Hong Kong’s rule of law as part of its high degree of autonomy, some judges and lawyers remain skeptical.
“There is a marked climate of unease among my peers ... [that] wasn’t there a few years ago,” a second judge said.
With the prospect of Chinese President Xi Jinping (習近平) ruling China indefinitely following the scrapping of term limits this month, anxieties have resurfaced over his stance toward Hong Kong.
In a landmark speech in the territory last June, Xi warned that Beijing would brook no challenge to its authority. In previous speeches he has suggested a blurring of the separation of powers between the government and judiciary in Hong Kong.
For some, the situation highlights an awkward contradiction within the Basic Law: Even as it guarantees Hong Kong’s judicial independence, the document still grants final power of interpretation to a committee of the National People’s Congress.
That puts the parliament beyond Hong Kong’s top Court of Final Appeal, a body that includes leading jurists from Britain, Australia and other common-law jurisdictions.
Some judges have also expressed concern to Hong Kong Chief Justice Geoffrey Ma (馬道立), people familiar with the situation have said.
“They use the constitution as a protector of their rule, not as a protector of civil rights,” senior barrister and former lawmaker Audrey Eu (余若薇) said, referring to Beijing. “They can interpret it any way they like.”
“The judges see themselves as trapped,” one diplomat close to the situation said. “They might be independent as ever, but the National People’s Congress in Beijing is not independent and they will have to increasingly implement party diktat.”
Asian and Western envoys are watching closely, with some describing Hong Kong’s legal system as the one institution that Beijing has yet to fully penetrate, unlike other spheres such as politics, academia and the media.
Hong Kong corporate lawyers say international clients such as hedge funds are now questioning the territory’s legal future and the potential role of Beijing. In contracts, some are stipulating that Singapore be used as a host for any arbitration, they say.
Commercial lawyer and media columnist Kevin Yam (任建峰) said that even if interpretations were political rather than commercial, “the perceptions created by them could still lead to much more work needed to be done to convince international investors that Hong Kong’s rule of law is largely intact.”
A US-China Economic and Security Review Commission report in November last year noted the importance of the link between Hong Kong’s strong rule of law and economic openness.
During the commission’s trip to Hong Kong in May last year, observers “noted the risk for Hong Kong’s continued importance as Asia’s financial center if companies and individuals lose confidence in Hong Kong’s rule of law and other freedoms as they are eroded by Beijing,” the US congressional report said.
Beijing’s power of interpretation has been used sparingly since Britain returned Hong Kong to Chinese rule in 1997. The last interpretation, in November 2016, was made pre-emptively ahead of a local court hearing to effectively bar pro-democracy lawmakers who had mocked their oath taking.
The prospect of tougher national security laws, a crackdown on an independence movement and a plan to give mainland security personnel legal control of a local rail platform could all spark legal challenges and risk interpretations as Beijing seeks greater control.
Some judges and lawyers said that when Beijing issued its first interpretation in 1999, it was seen as a last resort. The threshold is now far lower, they fear.
Elsie Leung (梁愛詩), a lawyer who served for eight years as Hong Kong’s first secretary for justice after the handover, acknowledged those fears, but said the system is working well and Beijing is entitled to interpret where it sees it is necessary.
When asked if Beijing has grown more confident about exercising its Basic Law powers, even pre-emptively, she said: “Now, after the accumulation of all their experience they are able to do things more expeditiously.”
However, Leung, who serves on the NPC’s Basic Law Committee, added that “the rule of law and judicial independence are well protected under the Basic Law” and that interpretations would still be made sparingly.
She said that Beijing needs certainty on key judgements that it feels have affected national sovereignty, adding that such matters are “in the interests of any government.”
When he opened the legal year, Ma did not directly address fears of pressures from Beijing, but repeatedly stressed the importance of common law.
“It is regarded as vital to the continuing success of Hong Kong, not only from financial or business points of view, but also for everyone in the community as a whole,” he said.
When asked later about judges’ fears of interference from Beijing, he skirted the issue, but stressed the “professionalism” of the Hong Kong judiciary.
The main pressures on them are “that they act in accordance with the law and to get it right,” he said.
As well as making judgements, Ma heads a body that oversees judicial promotions and appointments, making recommendations to Hong Kong’s chief executive.
By convention, those recommendations are always accepted, but the Hong Kong chief executive maintains veto power.
Some judges and those close to them see that veto power as a potential weak point should Beijing lean on the Hong Kong government to exert greater control.
“So far the system works and we are left alone, and we all want to ensure that continues,” said one committee member, speaking on condition of anonymity. “It would be truly shocking for the Chinese government to meddle with us.”
A spokesman for the judiciary said Ma would not comment on written questions submitted by Reuters.
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