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COMMENTARY
Hong Kong appeal
court in the dock
By Henry C K
Liu
To strengthen the rule of law in the
Hong Kong Special Administrative Region (HKSAR)
and to prevent the use of the law for veiled
geopolitical purposes, there is a need to limit
the jurisdiction of the Hong Kong Court of Final
Appeal (CFA) to legal issues; and to create a new
Basic Law Constitutional Council in Beijing with
exclusive jurisdiction over constitutional issues.
The Standing Committee of the National People's
Congress (NPCSC) should amend the Basic Law, Hong
Kong's mini-constitution, to eliminate once and
for all any ambiguity about Chinese sovereignty
over Hong Kong. Amending a constitution poses no
threat to liberty. The United States Constitution
was signed on September 17, 1787, and ratified by
the required number of states, nine, by June 21,
1788. Within a year, 10 amendments were passed by
Congress on September 25, 1789.
Under the
policy of "one country, two systems," the HKSAR
has retained its common-law system developed
through one-and-a-half centuries of British
colonial rule. The laws previously in force before
the return of Hong Kong to Chinese sovereignty in
1997 - the common laws, rules of equity,
ordinances, subordinate legislation, customary
laws and security laws - have been maintained in
accordance with the Basic Law.
The power
of final adjudication is vested in Hong Kong's new
CFA, replacing the former role of the Privy
Council in London. The CFA is headed by the chief
justice, who also heads the judiciary. It is a
collegiate court of five judges, comprising the
chief justice, three permanent judges and one
non-permanent judge. A pool of non-permanent Hong
Kong judges and non-permanent judges from other
common law jurisdictions may be invited to sit on
the court. This allows the CFA to tap the
expertise of the judges and maintain close links
with other common law jurisdictions. At present,
nine highly respected overseas judges may be
called on to sit on the full bench of the CFA.
Nineteen months into the establishment of
the HKSAR, a constitutional crisis arose out of
rulings the CFA issued on January 29, 1999. The
CFA took on itself to challenge Chinese
sovereignty over Hong Kong by ruling that: "What
has been controversial is the jurisdiction of the
courts of the region to examine whether any
legislative acts of the National People's Congress
or its Standing Committee are consistent with the
Basic Law and to declare them to be invalid if
found to be inconsistent. In our view, the courts
of the region do have this jurisdiction and indeed
the duty to declare invalidity if inconsistency is
found."
This was equivalent to a state
Supreme Court in the US challenging the
legislative authority of Congress to pass national
laws inconsistent with the constitution of that
particular state. In the US, authority to rule on
the constitutionality of legislation belongs
exclusively to the US Supreme Court.
The
CFA clearly overreached its authority by
misinterpreting a high degree of autonomy as
independent sovereignty. The CFA was claiming to
be legally and constitutionally more authoritative
than the NPC, which the Chinese constitution
identifies as "the highest organ of state power".
In China, unlike the US, not even the Supreme
People's Court has the constitutional authority to
strike down NPC legislation. Now, here was a HKSAR
court claiming this extraordinary authority over
national laws.
Several of Hong Kong's
first constitutional test cases revolved around
the question of the right of abode (permanent
residency) in Hong Kong under the Basic Law after
July 1, 1997. These cases resulted in two CFA
decisions delivered on January 29, 1999. These
decisions set in motion a number of other legal
challenges on constitutional issues. The HKSAR
government requested the State Council of the
People's Central Government to seek an
interpretation from the Standing Committee of the
National People's Congress (NPCSC) on the true
legislative intent of the Basic Law articles in
question. Under the Basic Law, the CFA has the
power of final adjudication while the NPCSC has
the power of final interpretation of the Basic
Law.
In keeping with common law tradition
and Basic Law provisions, the government did not
seek to overturn the effect of the January 29
ruling on the parties to that case. On June 26,
1999, the NPCSC issued an interpretation of the
relevant Basic Law provisions. This interpretation
has since been followed by the courts in other
cases dealing with the right of abode matter. In a
subsequent right of abode ruling in December 1999,
the CFA confirmed that the NPCSC interpretation
was both lawful and constitutional. The chief
justice of the CFA told the press that the rule of
law and the independence of the judiciary in Hong
Kong had not been undermined as a result.
On March 23, I wrote in Asia Times Online
on the structural constitutional defect of the
CFA. (See The glorious role of Tung
Chee-hwa) From the very start in the
negotiations for the return of Hong Kong to
Chinese sovereignty, China made a fatal
constitutional concession by agreeing that the CFA
of post-colonial Hong Kong, the counterpart of the
Privy Council during colonial times, which was
based in London, be based in Hong Kong instead of
Beijing. The most serious error committed by the
first chief executive was his insistence to
Beijing on accepting a historically anti-China
judiciary for Hong Kong be headed by a member of a
pro-British running-dog family.
Predictably, such a chief justice
repeatedly led a pro-British judiciary in Hong
Kong to create unnecessary constitutional crises
over the issue of Chinese sovereignty over Hong
Kong. The CFA tried to interpret a "high degree of
autonomy" as independent sovereignty and has
gleefully ruled against the SAR government on
every opportunity. Had the CFA been based in
Beijing, headed by the pro-China chief justice,
there would have been no question of China's
interference with Hong Kong's high degree of
autonomy when constitutional issues are ruled on,
and there would have been no need for the NPC to
interpret or amend Hong Kong constitutional law to
neutralize a hostile court.
Political
control of the highest court of the land is a
legitimate political aim in all political systems.
The choice of the chief justice of the United
States Supreme Court is a political act. By
surrendering political control of the judiciary on
constitutional issues, China has placed itself in
a position of being constitutionally handicapped
over the exercise of sovereignty over Hong Kong.
The term "rule of law" has been bandied
about recklessly in Hong Kong politics as a
righteous anti-China slogan, echoing US
propaganda. Yet the fact that law constitutes two
separate aspects, legal and constitutional, is not
properly acknowledged even in learned circles.
Under the English common-law system, legality is
based on precedent, with the inclusion of
extensive non-statuary law. Unlike the civil law
system derived from the Roman concept of statuary
law and commonly used outside of the British
Empire, non-statutory law is the basis of the
common law system. The legal authority in common
law rests not on legislation passed by the
legislature and/or statutes issued by executive
order and eventually codified into a body of law,
but rather on tradition, custom, and especially
precedent. Common law is recognized within the US
constitution as being essentially inviolable, such
as the concept of inalienable rights. However, as
customs and traditions change and evolve, the
common, non-statutory law must change and evolve
with them, and occasionally be amended by statute.
According to the legal origin theory
promoted by some economists, civil law countries
tend to emphasize social stability, while common
law countries focus on individual rights. This
contrast has a considerable impact of different
countries' economic-financial development. In
economics, the Legal Origin Theory states that
many aspects of a country's economic development
are the result of its legal system and the source
of its legal authority. Thus, "one country, two
systems" will continue to create structural
contradiction and conflicts between Hong Kong's
common law system that promotes individual rights
and China's civil law system that promotes social
stability.
On May 5, the CFA, led by Chief
Justice Andrew Li, unanimously overturned the
lower court convictions of eight Falungong members
for assaulting and obstructing police in a case
that was widely seen as a test of judicial
independence and the right of protest in Hong
Kong. In a summary of the verdict, the CFA said
the freedom to demonstrate peacefully is protected
by the Basic Law. "Those freedoms are at the heart
of Hong Kong's system and the courts should give
them a generous interpretation," it said.
In its ruling, the CFA was pronouncing a
constitutional judgment based on a fantasy of the
"heart of the Hong Kong System". Demonstration
against the British Crown and British colonial
rule was punishable by imprisonment in Hong Kong
under colonial rule. In colonial Hong Kong,
criticism of British imperialism and colonialism
was subject to criminal prosecution. In
post-colonial Hong Kong, criticism of China and
its socialist system is celebrated as a defense of
democratic freedom. It remains to be seen if the
court takes a similar "generous interpretation" of
the freedom to demonstrate during the World Trade
Organization Sixth Ministerial Conference in Hong
Kong this December.
The Falungong case
originated in March 2002, when 16 Falungong
members staged a protest outside the Central
Liaison Office (CLO), the representative office of
the Central People's government in Hong Kong. A
large banner reading: "Jiang Zemin: Stop killing"
was unfurled at the CLO main entrance while
Falungong members meditated in front. During
colonial rule, if a large banner reading: "King
George: Stop killing" was unfurled in front of the
British governor's mansion, the demonstrators
would have been arrested and sentenced to long
imprisonment, quite possibly without a public
trial. But in 2002, in Hong Kong under Chinese
sovereignty, following complaints by the CLO, the
demonstrators were arrested only for obstructing
access to a public building. Once inside a police
van, several demonstrators refused to cooperate
and had to be forcibly removed at Western police
station for interrogation. All 16 were later
convicted of charges of obstructing a public place
and several others were also convicted of
assaulting police officers and preventing them
from executing their duties.
Chief Justice
Andrew Li said in the CFA ruling that there should
be "some reasonable objective justification for an
arrest", and that an arrest cannot be made merely
on the basis of what an officer believes. The
ruling negates a section of the century-old Hong
Kong Police Force Ordinance that states that a
police officer can apprehend "any person who he
reasonably believes will be charged, or whom he
reasonably suspects of being guilty of an
offense".
In an extraordinary display of
judicial sophistry that requires judicial
penetration into the mind of a police official at
the time of arrest, CFA Justice Kemal Bokhary said
that "it would be sinister if a police officer
reasonably believed that a person would be charged
with an offense even though he did not reasonably
suspect him of being guilty". The justices
unanimously agreed the ordinance should ensure
that officers must reasonably believe a suspect
will be charged and reasonably believe the suspect
is guilty. Since the officers merely believed that
the suspects would be charged and were not
necessarily guilty of an offense, the CFA justices
concluded that the officers were not exercising a
lawful arrest. As a result, the protesters had a
right to resist an arrest that was interfering
with their right to demonstrate. Such judiciary
logic is amazing. According to that argument, all
arrest will be unlawful, since police officers are
not judges and are generally unable and
unqualified to determine if the perpetrators were
necessarily guilty as charged. That is the court's
job, while the job of the police is only to make
the charges. Besides, the lower courts had already
ruled that the perpetrators were guilty as
charged, albeit that the chief justice
subsequently admonished the lower courts for not
having been sufficiently "generous" in
interpreting freedom.
Falungong was
outlawed in 1999 by Chinese authorities after the
group staged a political demonstration in
Tiananmen Square. The group has been designated
officially as a "cult" that represents a clear
danger to society. It is a puzzle why in Hong
Kong, a territory of China, Falungong is still not
outlawed. The demonstration in Hong Kong occurred
on a property of the People's Central government,
where Falungong is officially outlawed and where
Falungong does not enjoy extraterritorial rights.
Legally, the demonstrators could have been
arrested by Chinese security police if they were
present, just as the Secret Service could arrest a
terrorist on White House property or any federal
property within the United States without waiting
for the local police. In September 2003, the CFA
ruled the argument that a banner could lead to an
offense of public obstruction was "nonsensical"
and the justices vacated those convictions. This
was certainly a departure from colonial judiciary
practice in which the Privy Council in London
would view any anti-British banner a serious
political crime. However, the lower court upheld
the convictions of eight other Falungong members
for obstructing the police officers in the
exercise of their duties.
These problems
exposed a structural flaw in the "one country, two
systems" principle: the contradictions between the
two fundamentally different legal systems within
one country. Under the Chinese system, the
legislature interprets the law; in the HKSAR, the
court also has that duty, albeit historically the
Hong Kong court had always interpreted the law in
favor of the colonial government and the Privy
Council in London, the supposed counterpart of the
CFA, had inevitably ruled on behalf of the British
Crown.
In China, the national legislature,
the NPC, cannot be overruled even by the Supreme
People's Court. In colonial Hong Kong, however,
common law left it up to the court to interpret
all laws, at least those that were not
anti-British. Thus in Hong Kong, the political
ideology of the judges becomes critical. During
colonial rule, the justices were all appointed by
the British governor. The court and the government
were of one mind: that colonialism was God's
greatest gift to the savage natives and the
British Crown was the law. But after Hong Kong's
returned to China, the CFA has set itself up as
anti-China institution to usurp powers that it
does not have under the Basic Law. The US Supreme
Court went through similar periods when it failed
to rule unconstitutional the Smith Act, an
anti-communist legislation based on thought
crimes.
By definition, since the Basic Law
was a creation of the NPC, interpretation by the
NPC cannot be inconsistent with the Basic Law, and
its interpretation cannot be questioned. It was
presumptuous and offensive for a Hong Kong court
to arrogate to itself the legal right to examine
NPC legislative acts and to pronounce on their
validity.
The CFA claimed constitutional
jurisdiction for the HKSAR courts, especially with
regard to "the legislative acts of the National
People's Congress (NPC) and its Standing
Committee". The jurisdictional issue involves the
power of judicial review of the Hong Kong courts
as provided for in Articles 158(2) and 158(3). In
two unanimous judgments signed by all five
justices, the CFA said that among other things
that (1) the courts of the region have the
jurisdiction to "examine whether any legislative
acts of the NPC or its Standing Committee ... are
consistent with the Basic Law and to declare them
to be invalid if found to be inconsistent"; (2)
that the court does not have to make a reference
to the Standing Committee of the NPC for an
interpretation of Article 24(2) even though
Article 22(4) is "arguably relevant".
On
February 5, 1999, Beijing expressed its
displeasure over the CFA rulings through four
prominent mainland legal scholars, Xiao Edifying,
Shao Tianren, Wu Jianfan and Xu Congde. In their
view, the CFA had put itself above the national
government when it asserted its power to review
legislation by the NPC and its Standing Committee.
They argued that this had no legal basis. The
HKSAR is not a sovereign entity and the CFA enjoys
no power of judicial review. Further, it is
important that Hong Kong people understand that
"one country" is the premise for "two systems".
Judicial review in Hong Kong's British
tradition encompasses three types of authority.
One is the power to invalidate statutes because
they are unconstitutional. In colonial Hong Kong,
courts could invalidate Hong Kong statutes if they
contravened British legislation and constitutional
law for Hong Kong, namely, the Letters Patent and
the Orders in Council. In post-colonial HKSAR,
there are potentially two types of constitutional
issues, those arising from the People's Republic
of China constitution and those arising from the
Basic Law. The CFA has no jurisdiction over either
type of constitutional issue because the CFA is
itself a creation of the two constitutions. It is
the cause that explains the effect, not the
reverse.
Another kind of judicial review
is the power to declare administrative acts either
contrary to the enabling statute or
unconstitutional. In colonial Hong Kong courts
exercised this power, and they continue to do so
under Chinese sovereignty, although this power is
complicated by the two-tiered structure of
government in the Hong Kong SAR, in which Hong
Kong is subject to the administrative decisions of
both a local administration and a national
administration, and it is ambiguous whether Hong
Kong courts may review PRC administrative acts, at
least in the eyes of the CFA. A third sense of
judicial review is the power to review acts in
general, or, in other words, the jurisdiction of
the court. Here the CFA has been clearly
expansionary and ambitiously so. The National
People's Congress Standing Committee (NPCSC), when
it handed down on June 26, 1999, an interpretation
of the constitutional provisions at issue in the
landmark constitutional cases did not restore for
all affected parties the portions of the Hong Kong
statute invalidated by the CFA.
Thus, to
the extent that this decision interfered with the
CFA's power to invalidate local law, the degree of
its interference was limited in its application.
The NPCSC did not nullify the power of Hong Kong
courts to invalidate local statutes in that
decision, nor did the CFA in its application of
the decision nullify this power. While the NPCSC
decision restored the statute that the CFA had
declared unconstitutional, it refrained from
vacating any of the court's language in these two
opinions that asserted that it had broad power to
review constitutional issues. The Standing
Committee decision did not necessarily set a
precedent for procedures whereby constitutional
review is not final in the HKSAR. Hong Kong courts
have not yet refused to take jurisdiction over any
administrative act by either Hong Kong or People's
Republic of China government bodies, not citing
the grounds that these are acts of state that are
not reviewable under Article 19 of the Basic Law.
Therefore, the door is still open to Hong
Kong courts reviewing the constitutionality not
just of Hong Kong statutes, but also PRC statutes.
Thus constitutional crises will re-emerge as test
cases surface.The Hong Kong government, the media,
the legal profession and all other relevant
components in the SAR, have an obligation to
foster respect for judicial independence. But the
corollary to this principle demands that the
courts must earn that respect through their
judicial decisions, especially those decisions
that unavoidably relate to domestic and
geopolitics.
The CFA did itself and the
principle of judicial independence a disservice by
its mishandling of constitutional issues. Its
January 29, 1999, decision was unwisely
provocative and precipitated the constitutional
and political crisis that led to the Hong Kong
government seeking an interpretation of the Basic
Law by the Standing Committee of the National
People's Congress. The experience of two centuries
of federal constitutional adjudication in the US
should provide a good lesson to the CFA to avoid
unnecessary political confrontation with the other
branches of government.
In Marbury v
Madison in 1803, chief justice John Marshall made
a forceful assertion of the right of the court to
invalidate acts of Congress. During the
administrations of Washington and his successor,
John Adams, only members of the ruling Federalist
Party were appointed to the bench, and under the
terms of the US Constitution, they held office for
life during "good behavior". Thus, when the
opposing Republicans won the election of 1800, the
Jeffersonians found that while they controlled the
presidency and Congress, the Federalists still
dominated the judiciary. One of the first acts of
the new administration was to repeal the Judiciary
Act of 1800, which had created a number of new
judgeships. Although president Adams had attempted
to fill the vacancies prior to the end of his
term, a number of commissions had not been
delivered, and one of the appointees, William
Marbury, sued Secretary of State James Madison to
force him to deliver his commission as a justice
of the peace.The new chief justice, John Marshall,
understood that if the court awarded Marbury a
writ of mandamus (an order to force Madison to
deliver the commission) the administration of
president Thomas Jefferson would ignore it, and
thus significantly weaken the authority of the
courts.
On the other hand, if the court
denied the writ, it might well appear that the
justices had acted out of fear. Either case would
be a denial of the basic principle of the
supremacy of the law. Marshall's decision in this
case has been hailed as a judicial tour de force.
In essence, he declared that Madison should have
delivered the commission to Marbury, but then held
that the section of the Judiciary Act of 1789 that
gave the Supreme Court the power to issue writs of
mandamus exceeded the authority allotted the court
under Article III of the US constitution, and was
therefore null and void. Thus he was able to
chastise the Jeffersonians and yet not create a
situation in which a court order would be flouted.
The critical importance of Marbury is the
assumption of several powers by the Supreme Court.
One was the authority to declare acts of Congress,
and by implication acts of the president,
unconstitutional if they exceeded the powers
granted by the US constitution. But even more
important, the court became the arbiter of the
constitution, the final authority on what the
document meant. As such, the Supreme Court became
in fact as well as in theory an equal partner in
government, and it has played that role ever
since. The court would not declare another act of
Congress unconstitutional until 1857, and it has
used that power sparingly. But through its role as
arbiter of the US constitution, it has, especially
in the 20th century, been the chief agency for the
expansion of individual rights.
The
decision written by Marshall was a master piece of
legal logic as well as political dexterity. While
by asserting the power of the court to review
legislative acts, the court made clear that the
power of Congress was not without limits, it at
the same time denied the request for a writ of
mandamus on constitutional grounds to avoid the
prospect of forcing the Jefferson administration
to ignore an order of the court.
In 1816,
Congress chartered The Second Bank of the United
States. In 1818, the state of Maryland passed
legislation to impose taxes on the bank. James W
McCulloch, the cashier of the Baltimore branch of
the bank, refused to pay the tax. In McCulloch v
Maryland in 1819, the case presented two
questions: Did Congress have the authority to
establish the bank? And did the Maryland law
unconstitutionally interfere with congressional
powers? In a unanimous decision, the court held
that Congress had the power to incorporate the
bank and that Maryland could not tax instruments
of the national government employed in the
execution of constitutional powers. Writing for
the Supreme Court, Chief Justice Marshall noted
that Congress possessed unenumerated powers not
explicitly outlined in the US constitution.
Marshall also held that while the states retained
the power of taxation, "the constitution and the
laws made in pursuance thereof are supreme ...
they control the constitution and laws of the
respective states, and cannot be controlled by
them."
Marshall declared legitimate the
implied powers theory of Alexander Hamilton to
assert that the Federal government was fully
sovereign within its own sphere and not merely the
creature of the states. In this most significant
decision in the history of the US Supreme Court,
Marshall declared that the government of the Union
was created by the people, not by the states and
was supreme within its own sphere of action and in
pursuing an end that is both legitimate an
constitutional, the federal government could adopt
any means that might be appropriate, as long as it
was not explicitly prohibited by the US
Constitution, and that the states had no right to
interfere with the federal government in the
exercise of its constitutional powers.
In
Hong Kong, the CFA erred in claiming that it had
the power to invalidate legislation enacted by the
National People's Congress. When called on to
interpret a provision of the Basic Law that on its
face appeared to be one "concerning the
relationship between the central authorities and
the region", instead of referring the question to
the NPC Standing Committee as required by Article
158, the court created a new test for applying
Article 158 that rationalized its refusal to make
the reference. Moreover, when deciding how to
interpret two ambiguous provisions of the Basic
Law relating to the "right of abode", it
needlessly chose in each case the interpretation
that was more likely to ignite community tensions
and challenged the sovereignty of the central
government over Hong Kong. When the wording of the
law permits two plausible interpretations, a wise
court should assume that the lawmakers intended
the one less likely to stir political passions.
The justices of the CFA, with their neo-colonial
mentality disguised as liberalism, unnecessarily
cast the court in a combative mode with regard to
Chinese sovereignty over Hong Kong.
The
CFA has repeatedly exhibited a deficiency in
jurisprudent wisdom and caution and a predilection
for audacious declarations over modest decisions
that echo pat neo-liberal political slogans. Yet
the lesson of the United States Supreme Court,
learned through much bitter experience, is that a
high court that seeks respect and independence
should decide on the basis of wisdom as well as
logic. In the US, state supreme courts are the
court of final adjudication within the states
except on constitutional issues that are the
purview of the US Supreme Court. The existence of
the US Supreme Court does not constitute a threat
to the judicial independence of the states. The
granting of a regional court the jurisdiction over
constitutional issues is detrimental to the rule
of law.
The CFA is the highest court in
the region, but not the high court in the nation,
even that has no authority to overrule laws passed
by the National Congress in the Chinese
constitutional regime. When the British proposed
in 1982 the Basic Law as the constitutional
framework for the return of Hong Kong to Chinese
sovereignty, it drew on the model of post World
War II West Germany where the very term Basic Law
(Grundgesetz)as adopted on May 23, 1949,
was first used to condone the division of Germany
into two separate states. The British had hoped to
effectuate de facto independence for Hong Kong
under the guise of the rule of law, even if such
treachery would in fact endanger the rule of law
in Hong Kong.
With the lack of self
restraint demonstrated repeatedly by the CFA
justices, the only solution is for the Standing
Committee of the National People's Congress to
amend the Basic Law, to create a new Basic Law
Constitutional Council in Beijing with exclusive
jurisdiction over constitutional issues involving
the Basic Law and to delimit the jurisdiction of
the Hong Kong Court of Final Appeals over
constitutional issues, leaving it jurisdiction
only over legal issues, consistent with a high
degree of autonomy as stipulated in the Basic Law.
Henry C K Liu is chairman of the
New York-based Liu Investment Group.
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