We’re living in a Hong Kong shaped by a landmark 1999 ruling
- Cliff Buddle says the Court of Final Appeal has been accused of first going too far in asserting its independence and then surrendering too much ground. The 1999 incident also opened the door to Beijing’s interpretations of the Basic Law
But the Hong Kong court’s brave – some would say foolhardy – attempt to do something similar was short-lived. It was a catalyst for dramatic and unexpected consequences which are still being felt in the city today.
This was too much for the central government, which saw the court’s finding as a challenge to its authority. A constitutional crisis was only averted when the court delivered an unprecedented clarification of its judgment at the request of the Hong Kong government.
Not surprisingly, the move raised concerns that the city’s judiciary had been undermined and, at the height of the controversy, 600 lawyers staged a silent protest march.
Over the past 20 years, the court has faced much criticism over its actions in 1999. It has been accused of first going too far in seeking to assert its own powers and then, in the face of a strong backlash, surrendering more ground than necessary.
That may be true. But history should look favourably on the five judges who delivered that landmark ruling. Their vision for Hong Kong, as a part of China with a very high degree of autonomy, was one many hoped for at the time.
It is not easy, in 2019, to recall the sense of uncertainty back then about the way the unique “one country, two systems” arrangements would play out. As one of the lawyers in the case, Denis Chang, said at the time: “We are in virgin constitutional territory.”
There were so many questions to be answered. How was the Basic Law to be interpreted? Did the court have the power to strike out laws it found to be inconsistent with it? How were human rights provisions in the law to be treated? What was Beijing’s role in all this? Would the court need to seek an opinion from the Standing Committee before delivering its judgment?
The ruling was delivered by then chief justice Andrew Li Kwok-nang, in two hours, to a small, packed courtroom in the old French Mission Building. He was joined on the bench by Mr Justice Kemal Bokhary, Mr Justice Charles Ching, Mr Justice Henry Litton and, from Australia, Mr Justice Anthony Mason.
While the case tackled constitutional issues of great importance, it was ultimately about human rights. The court would decide the fate of four young people, Ng Ka-ling, then 11, her nine-year-old sister Ng Tan-tan, Cheung Lai-wah, also nine, and Tsui Kuen-nang, 20. All were born in mainland China but had a parent from Hong Kong. They relied on the wording of the Basic Law, which appeared to give them the right of abode. And there were many more in the same position who were anxiously awaiting the outcome of the case.
The court’s judgment not only swept away the government’s restrictions on the ability of the abode seekers to live in Hong Kong, it also removed many of the doubts about the operation of the “one country, two systems” arrangements.
The judges attached great importance to protecting the city’s freedoms and high degree of autonomy, and sought to ensure key constitutional decisions concerning Hong Kong would be reserved for the city’s independent judiciary.
With the benefit of 20 years of hindsight, it might be said the court was naive to think its broad view of the judiciary’s powers would be acceptable to Beijing. But at the time, many saw it as a sensible and credible view of the way the new system should work.
The court’s bold attempt at a Marbury vs Madison ruling might have backfired. But much of that epic judgment has remained intact. The generous interpretation of parts of the Basic Law protecting human rights continues to be applied. Crucially, the ability of the courts to strike out local laws which conflict with the Basic Law remains in place. This important power was used by the courts before the handover, but there were doubts about whether it would continue once Hong Kong returned to China.
In the right of abode case, the court declared several laws which restricted the ability of the claimants to live in Hong Kong to be invalid. This was done on the basis that the restrictions were inconsistent with the Basic Law, which defined the categories of Hong Kong permanent residents in broad terms.
The judgment has had a lasting impact. It will be remembered both as a flawed attempt to make sense of Hong Kong’s new constitutional arrangements, but also as a high point for the city’s judicial independence and level of autonomy.
Cliff Buddle is the Post’s editor of special projects