The Basic Law of Hong Kong

Dancing In Fetters

Ng Ka Ling Case And The Rule Of Law In Hong Kong

Introduction

Ng Ka Ling case is not the first “constitutional case” that the Hong Kong court employed its judicial interpretation to interpret the Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China (“Basic Law”). However, the decision of the Hong Kong Court of Final Appeal (“CFA”) in Ng Ka Ling has attracted considerable attention as an indicator of the wellbeing or otherwise of the legal system of the Hong Kong Special Administrative Region (“Hong Kong SAR”) in the aftermath of its reversion to Chinese sovereignty from 1 July 1997. Some commentators even regarded it as “the most important ruling by any court since Hong Kong became a part of China,” with labeling it the Marbury v Madison of the Hong Kong judiciary. Contrary to the view of mainland scholars who inveighed against the CFA’s decision which arrogated the power of the National People’s Congress Standing Committee (“NPCSC”), unsurprisingly, many Hong Kong observers have concluded that the Ng Ka Ling episode weakened the Hong Kong courts and eroded the region’s autonomy. In the second part, the author tries to summarize the three main controversial issues in the case from both legal and historical angles and then raises his own opinions. In the final part, the author will analyze the problem behind the controversy and give his future prospects on the rule of law in Hong Kong.

Ng Ka Ling Case

Issue Of Chief Executive’s Authority

In Ng Ka Ling, the CFA, Hong Kong’s highest court, issued a ruling concerning the right to abode in Hong Kong. The CFA took a generous view of who enjoyed this right, but, more importantly, it asserted a broad statutory interpretative power over both the Hong Kong Legislative Council (“LegCo”) and China’s national legislature, the National People’s Congress (“NPC”). Worried about the consequence of the judgment which, the Hong Kong government considered would bring severe social problems, the Hong Kong Chief Executive Tung Chee-Hwa petitioned the NPCSC for its interpretation of the right to abode case. The NPCSC then gave different, though not wholly opposite interpretation and promulgated a narrowly drawn definition of this right. Many in Hong Kong questioned whether the Hong Kong Chief Executive had the authority to make such a referral, seeking for an NPCSC interpretation. This was a highly controversial move because it further challenged the already bruised authority of the Court, and also because Article 158 of the Basic Law did not seem to allow Hong Kong’s executive branch to appeal straight to the Standing Committee. There is no such a provision that grants the Chief Executive the same power or legal procedure as the CFA as clear as Article 158(3), to ask for NPCSC interpretation. It also appeared to be an obvious attempt by the executive to displace the rulings of the Court. In the Basic Law. If he can, then the government till now on will have a way of getting around court rulings it doesn’t like. On the contrary, supporters argued that according to the Basic Law Article 43 and Article 48(2), the Chief Executive shall be the head of the Hong Kong SAR and is responsible for the implementation of the Basic Law. That is also the “legal basis” or legal authority which the Chief Executive applied into his report to the CPG.

Literally speaking, Tung, in this way, discharged his duty of implementing the Basic Law. However, it violated the judicial independence and the rule of law in Hong Kong. The Principle of separation of powers and judicial independence are no doubt the cornerstones to the Hong Kong society and has already been internalized into people’s blood. Albert Chen, member of the Basic Law Committee, notes that there is a “loophole” in the Basic Law about what should be done when the CFA fails to “strictly follow the review procedures” outlined in paragraph 3 of Article 158 for requesting an interpretation. Opponents criticized the local government for not taking the more time-consuming but more legitimate approach of overturning the CFA’s decision through amendment of the Basic Law. As a response, the Hong Kong SAR government dismissed the amendment option, claiming that it could not take place for another ten months, when the NPC would next meet, a delay too long to contemplate. Clearly, in the common law principle, a case can only be reversed by a higher court or the final court itself (if final court makes the judgment). So it is a dangerous signal that the administrative power, by employing “unconstitutional” procedure outweighs the judicial power. To the author’ mind, it would be better, in this case, that the NPCSC dismisses the motion if the chief executive insisted to do so.

Issue Of Npcsc’s Interpretation Power

Legal Basis

Some commentators compliant that NPCSC’s interpretation itself has significantly undermined the judicial autonomy and rights protection priority which the CFA sought zealously to maintain in Ng Ka Ling. It is arguable. According to Article 158 of the Basic Law, the NPCSC has the ultimate power of interpretation when such interpretation of the Basic Law concerning affairs which are the responsibility of the Central People’s Government (‘CPG’), or concerning the relationship between the Central Authorities and Hong Kong SAR, and such interpretation will affect the judgments on the cases. Furthermore, Article 67 of the Constitution of the People’s Republic of China (“Constitution”) gives the NPCSC the power to interpret laws made by the NPC or the NPCSC, including the Constitution itself. Thus, the Basic Law as a national law enacted by the NPC which the NPCSC enjoys the power to interpret and Article 158(1) consists with the Constitution.

European Model

The Basic Law’s division of the power of interpretation between the Hong Kong courts and the NPCSC (as advised by the Basic Law Committee) is not a socialism-based invention or something “made in China”. In fact, it is largely modeled on the scheme in Article 177 of the EEC Treaty for the division of the power of interpretation of European Community law (“EC law”) between the national courts of the member states and the Court of Justice of the European Communities at Luxembourg. Moreover, the 1988 draft of the Basic Law was published in a bilingual booklet also containing an “introduction and summary”. Paragraph 52 of the “introduction”, commenting on Article 169 of the draft Basic Law (which is similar though not identical to the present Article 158), reads as follows: “This provision, which takes account of the current practice in the courts of Britain and the European Community, will help prevent possible conflicts between the interpretations given by the courts of Hong Kong and those given by the NPCSC while not affecting the power of final adjudication of Hong Kong.”There is no doubt that the EC law has provided a good example to creatively and technically tackle this conundrum. It is not, as some people disdained, a mechanism full of defects, conflicts and loopholes but an effective measure which has been proved successful. If mainland China and Hong Kong detail the provision and divide the interpretation power more explicitly, like the EEC Treaty, it is fair to believe that they can cooperate with each other without contradictions while the rule of law in Hong Kong being well protected.

Issue Of The Human Rights

One of the reasons that the CFA made the final judgment in favor of the appellant is that the CFA considered “family reunion” and “anti-discrimination” on the ground of human rights. The decision was widely praised for its firm defense of human rights and the rule of law, especially many human rights organizations.The Hong Kong Human Rights Monitor issued a statement that the judgment had “renewed public confidence in … the ability of the Hong Kong courts to adjudicate fairly and authoritatively on difficult constitutional issues irrespective of the political embarrassment to the government.” However, several months later, when the NPCSC reinterpreted the relative Articles of the Basic Law which reversed the CFA’s opinion, thousands of human rights activists protested with strong dissatisfaction. After that, in Lau Kong Yung and Ng Siu Tung cases, the CFA following the NPCSC’s interpretation refused to give the right of abode to the appellants although they had the similar situations as children in the Ng Ka Ling series cases. Thus, some scholars commended that: “Under government intimidation, judges may adopt a conservative stance in human rights issues, avoid ‘sensitive political issues,’ ‘too readily refer matters to the Standing Committee, or simply giv[e] in to official political pressure.’”

From the author’s view, the decision that the CFA claimed void on the Immigration Ordinance and said no to the discrimination is absolutely right. “Family reunion” and other human rights which involve more policy considerations, however, may as well be taken in to account prudently. Human rights, on the one hand, is the fundamental rights protected by laws; on the other hand, it is sometimes too ambiguous to define so that it is impossible for laws to protect all kinds of human rights especially when it employs a broad definition. The scope and the degree of the protection of the human rights may change time to time according to the social environment. Take the U.S. for an example. After 911, the U.S. Congress passed the well-known “USA PATRIOT Act”. Many provisions in it, from the common perspective, violate the human rights, but this violation, in that emergency situation, for the public interest, is needed and supported by the majority of American people. Likewise, the situation in Ng Ka Ling was special. If not consider the social reality in which Hong Kong residents may suffer huge decline of living standard in case of the immigration flood, such “protection of human rights” is no more than at the cost of destructing the original Hong Kong people’s human rights. In fact, such restrain of immigration will not bring up bad effects and influence the rule of law in Hong Kong. Although the CFA’s decision in Ng Siu Tung directly affected individual liberties and human rights, causing some to “question [previous] promise[s] to safeguard civil rights following Hong Kong’s return to China,” the decision clearly also had a larger significance for the rule of law and judicial independence in Hong Kong. These rule of law implications may have affected the whole society and created benefits to the extent that the Rule of Law Hypothesis holds in this context.

Future Prospects

Clearly, China and Hong Kong diverge in the practice of the law. Because of Britain’s 150-year rule over Hong Kong, the former colony uses the common law, while China relies on civil law. Thus, in China, the legislature interprets the law with the courts merely enforcing the law, while in Hong Kong, the courts are legal interpreters. Besides, the rule of law in China and in Hong Kong is also not identical. The Basic Law, however, is the bridge between the two conflicting legal systems and legal cultures. By playing an irreplaceable role, the Basic Law, facilitates the preservation of Hong Kong’s legal system, promising an independent judiciary and the practical continuation of the rule of law. while these central legal ideas are defined differently by the Hong Kong judiciary and the PRC government, in accordance with each political philosophy. It is the competition of these underlying values that is most troublesome to the successful co-existence of two systems. As revealed by the right of abode interpretation controversy, the Hong Kong judiciary and the NPCSC need formulate interpretations of Basic Law provisions that, while contradictory, are each appropriately construed within their own ideologies. Nonetheless, the success of cooperation depends on the mutual understanding of each government’s political philosophies in resolving Basic Law scuffles. Hence, suggestions to resolve future controversies may include: (1) strengthening the communication channel between the two conflicting legal systems; (2) establishing a formal dispute resolution mechanism in the Basic Law; and (3) amending relevant provisions in the Basic Law to clearly identify under what circumstances the CFA should seek an interpretation from the NPC.

In the light of the twists and turns, ups and downs since the handover, the story of the rule of law in the Hong Kong SAR may be interpreted as a continuing and evolving debate about the meaning and significance of the rule of law in Hong Kong. Since the 1980s the people of Hong Kong have embraced the transplanted legal system as their own. They have become more and more vigilant regarding their human and legal rights; they increasingly cherish and are more eager than ever before to defend what they believe to be the ideals of the rule of law. The battle for the defense of the rule of law in Hong Kong has been fought against the background understanding or assumption that there is no rule of law across the border in mainland China. Obviously, it would be easy to criticize the pragmatists for compromising too much and betraying the principles and ideals of the rule of law. But the pragmatists are not always wrong. We shall care about the actual context, the real circumstances, the diverse interests and values in this world. The rule of law in Hong Kong will not disappear; it is adjusting itself to cope with the current social background. As China is moving forward to being a real constitutionalism nation, it is fair to believe that the rule of law in Hong Kong will last forever.