A week after Beijing disqualified four lawmakers from Hong Kong’s Legislative Council, prompting the resignation of the entire opposition, a senior Chinese official has called for reform of Hong Kong’s judiciary. On Wednesday, South China Morning Post’s Tony Cheung and Lilian Cheng reported that Zhang Xiaoming, deputy director for Beijing’s Hong Kong and Macau Affairs Office (HKMAO), announced that the government was working on reforms to Hong Kong’s basic law, including to its judicial system:
Describing judicial reform as a hot topic for debate in Hong Kong society, Zhang said: “Even Western countries’ judicial systems are reformed constantly; this does not affect their judicial independence.”
Zhang called for the “one country, two systems” governing formula, under which Hong Kong is allowed a high degree of autonomy, to be implemented comprehensively and accurately. Hong Kong’s constitutional systems must be upgraded and misconceptions replaced with the correct principles such as patriotism, he said.
“Hong Kong treasures core values such as democracy, freedom and human rights. But before that, we need to add the term ‘patriotism’,” he said. “While we must talk of seeking common ground and setting aside differences, we must also insist on bottom lines. The firmer we are on the bottom lines, the bigger the room for political tolerance.” [Source]
In his speech, Zhang cited a controversial opinion piece written by Henry Litton, a conservative retired judge who served on Hong Kong’s Court of Final Appeal, the city’s Supreme Court. In that piece, published by the South China Morning Post in September, Litton said Hong Kong’s common law system was not “fit for purpose,” asserting that the city’s judges had overreached in their power, and recommended that the judiciary should follow the path set by Xi Jinping:
But using the Basic Law to air local grievances – or to harass the government – is another matter. There, the courts have allowed lawyers to play forensic games, using articles in the Basic Law as weapons to strike at government institutions.
High Court judges who are on the front line of judicial review cases do not seem to realise this elemental fact: every time they purport to apply the Basic Law, that potentially makes a dent in Hong Kong’s high degree of autonomy, for the final power of interpretation lies not with the Hong Kong courts but with Beijing.
[…] And, worst of all, the courts have allowed counsel to turn the Basic Law on its head: instead of it being the guarantee of Hong Kong’s stability and prosperity, it has been used to chisel away the edifices of law and order. The cumulative result, over a long period, is Article 44 of the new national security law.
[…] Perhaps the path forward is set by a speech given by President Xi Jinping in 2014: “We have a big stage to display our advantages on [and] a long and rich history to draw benefit from … We should modestly learn from the best of other civilisations, but never forget our own origin. We must not blindly copy the development models of other countries, nor accept their dictation.” [Source]
Litton’s views in the piece fit within a larger narrative that has been pushed by officials from Beijing, emphasizing the subordination of Hong Kong’s Basic Law to the Chinese constitution. At the same legal conference on Tuesday, South China Morning Post’s Tony Cheung and Lilian Cheng reported on the comments of two Beijing figures who were explicit in this characterization:
[Former HKMAO deputy director Feng Wei and former Basic Law Committee chairman Qiao Xiaoyang] also said that while the Basic Law was considered Hong Kong’s mini-constitution, it should be viewed as closely related, and subordinate, to the Chinese constitution.
“You can see the Basic Law as a completely independent legal document, or you can see it as one under the Chinese constitution,” said Qiao, who in his former capacity advised the central government on the document, and who maintained that the National People’s Congress Standing Committee (NPCSC) had the final say on its interpretation. “Based on your perspective, you can have extremely different understandings of the Basic Law’s requirements.” [Source]
Beijing’s effort to reframe the status of the Basic Law began even before the passing of the Hong Kong National Security Law at the end of June of this year. Earlier in June, Ben Bland, an expert with the Australian think tank Lowy Institute, observed that even the document of the Basic Law itself was quietly modified this year to be subordinated under the Chinese constitution. He noted the significance of the reordering of this relationship:
Some time in the last couple of months, the Hong Kong govt updated its Basic Law website to insert the Chinese Constitution into its PDF version of the Basic Law, coming before the Basic Law of course. It's symbolic of the shifting balance of power (THREAD)
— Ben Bland (@benjaminbland) June 18, 2020
Now HK govt is explicitly saying that the Chinese Constitution comes first. But the Basic Law was designed (at least in part) to insulate Hong Kong's legal, economic and political system from that of the mainland. Presenting the two together undermines this separation.
— Ben Bland (@benjaminbland) June 18, 2020
In a development that highlighted Beijing’s growing shadow over Hong Kong’s judiciary, on Tuesday, Hong Kong’s Department of Justice required a specially selected ‘national security judge’ be appointed to oversee the trial of Tam Tak-chi, an activist who was arrested for “uttering seditious words” in September. Prosecutors alleged that he had advocated for independence after he used the phrases “liberate Hong Kong” and “five demands, not one less” at several protests this year.
Under Article 44 of the National Security Law, the Chief Executive may designate certain judges to handle cases concerning “offenses endangering national security.” The law also allows the Chief Executive to remove judges from the designation list should they “make any statement or behave in any manner endangering national security,” indicating Beijing’s distrust in the loyalty of Hong Kong’s judges.
But Tam was not arrested under the National Security Law. Instead, he was charged with sedition under a little-used colonial era law known as the Crimes Ordinance, which was originally passed to outlaw “hatred or contempt or disaffection” towards the British monarchy and colonial administration. Although the reason why prosecutors chose to charge Tam with sedition using a different piece of legislation is unclear, the move to require a national security judge shows how the National Security Law has affected the functioning of other parts of the judicial system.
However, Tam has been arrested for 14 counts of offences, including uttering seditious words, inciting others to take part in an unauthorised assembly, causing disorder in public places, etc. But none of the offences is under the national security law.
— Ezra Cheung (@ezracheungtoto) November 17, 2020
At the Tuesday hearing, the prosecution apparently intends to make Tam receive the same treatment as other national security law offenders, despite the fact that Tam was actually not arrested under national security law.
— Ezra Cheung (@ezracheungtoto) November 17, 2020
Beijing has spent much of this year tightening control over all three branches of the Hong Kong government. (Whether there are even three separate branches is contested by Beijing, which has said that Hong Kong has no separation of powers.) In addition to the disqualification of lawmakers from the legislature, the Hong Kong government made it a requirement in October that all new recruits to the civil service must pledge allegiance to Hong Kong.
Most recently, Beijing has expressed anger and frustration with the courts following successive acquittals of several Hong Kongers who were charged with rioting during the 2019-20 protests. Judges have dismissed charges against defendants in multiple cases, citing insufficient or unreliable evidence, including after police were found to have outright lied in their witness testimony. Beijing’s moves to “reform” the courts will likely allow it to control the last branch of government where some vestige of independence remains.
* Correction: We originally misspelled the name of Zhang Xiaoming, deputy director for Beijing’s Hong Kong and Macau Affairs Office.
