Beijing’s call for judicial reform spells the end of the Hong Kong system

The move to align Hong Kong’s common law system with mainland expectations cannot be said to be a surprise, as Beijing has been consistent in its pronouncements on Hong Kong’s place in China

Phil C. W. Chan

Published: 6:45am, 6 Dec 2020

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In How to Be a Dictator, a study of eight dictators in the 20th century, Dutch historian Frank Dikötter, chair professor of humanities at the University of Hong Kong and author of a prize-winning trilogy on Mao Zedong’s China, argues that omnipresence, omnipotence, unpredictability and dissembling are critical to a dictatorship.

These characteristics, he argues, sow confusion, terror and fear, to produce “docile, atomised individuals”, and transform every sector of society into liars. The resulting sense of insecurity and uncertainty, both at home and abroad, is what keeps a dictator in power.

Omnipresent and omnipotent, Chinese President Xi Jinping certainly cannot be accused of being unpredictable or dissembling. In fact, his visions of China, China’s place in the world order and Hong Kong’s place in China had been clear long before Beijing imposed its national security law on Hong Kong on June 30.

Shortly after he assumed power as General Secretary of the Chinese Communist Party in 2012, Xi told the world of his “Chinese dream” in which “the great rejuvenation of the Chinese nation” would be realised under his reign. In 2014, the State Council stated in its white paper on Hong Kong that China had “comprehensive jurisdiction” over the city.

The 1984 Sino-British Joint Declaration, which supposedly guarantees Hong Kong’s ways of life until June 2047, was described by China’s foreign ministry in 2017 as a “historical document that no longer has any realistic meaning”. Hong Kong is China’s city in all its glory.

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In my last column, I wrote that Gleichschaltung – China’s consolidation of its total control and coordination over all aspects of Hong Kong society – was running at full speed. Two days later, the Standing Committee of the National People’s Congress issued a resolution that anyone deemed by Beijing to be insufficiently patriotic must be immediately disqualified from office for Hong Kong’s Legislative Council without recourse to judicial process.

Hong Kong Chief Executive Carrie Lam Cheng Yuet-ngor fulfilled her self-described role as Beijing’s messenger in effecting its decree, but nevertheless said she would be “excited when bills are passed more efficiently”. All but two of the non-pro-establishment legislators resigned in protest, which Beijing has decried as “an open challenge” to its authority.

What remains uniquely “Made in Hong Kong” must be properly “reformed”. Not soy sauce or jewellery, but Hong Kong’s common law legal system and those prickly judges who believe they can make judicial decisions independent of Hong Kong’s “executive-led” government, and who have for far too long reinforced Hong Kong people’s misapprehension of the foreign notion of “separation of powers”.

At the Basic Law 30th Anniversary Legal Summit on November 17, Zhang Xiaoming, deputy director of the State Council’s Hong Kong and Macau Affairs Office, called for “judicial reform” in Hong Kong, citing retired Hong Kong Court of Final Appeal permanent judge Henry Litton.

Litton wrote in the Post in September that Beijing had grown distrustful of Hong Kong’s courts as a result of their interpretations of the Basic Law that “have, at the highest level, put a slant on its plain words, by applying obscure norms and values from overseas which are totally unsuited to Hong Kong’s circumstances”.

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Lord Neuberger, former president of the UK Supreme Court and a non-permanent judge of Hong Kong’s Court of Final Appeal, noted in 2017 that foreign judges in Hong Kong were like “the canaries in the coal mines”, and “so long as they are happy to serve on the [Hong Kong Court of Final Appeal], then I think you can safely assume that all is well with judicial independence and impartiality in Hong Kong”.

In July this year, Lord Reed, current president of the UK Supreme Court and another non-permanent judge of the Court of Final Appeal, stated that Court of Final Appeal judges “will do their utmost to uphold the guarantee in Article 85 of the Hong Kong Basic Law that ‘the courts of the Hong Kong special administrative region shall exercise judicial power independently, free from any interference’.”

As the Brits would say, come off it. Their neocolonial white saviour mentality aside, foreign judges of the Court of Final Appeal, who spend little time in Hong Kong, are incapable of appreciating realities in Hong Kong society as lived by Hongkongers.

Now that Gleichschaltung in Hong Kong is clear, Zhang noted that “we must see the Basic Law as a living law, and amplify its applicability through ways such as legislation and interpretation”, clarifying once and for all that the finality in the “power of final adjudication” of Hong Kong as vested in the Court of Final Appeal had been as misunderstood as Hong Kong’s “rule of law”.

At least Australia’s James Spigelman knew his place in China’s new Hong Kong, and resigned from the Court of Final Appeal bench in September, even if he was only duly replaced by Britain’s Lord Hodge a month later.

Dominic Raab and Robert Buckland, Britain’s foreign secretary and justice secretary, are consulting Lord Reed as to “important questions” raised about the rule of law in Hong Kong and the suitability of the continued presence of UK judges on the Court of Final Appeal bench lest they lend “a veneer of legitimacy” to Hong Kong’s legal system.

Perhaps like the many songs that Hongkongers are no longer permitted to sing, the canaries in the coal mines should stop singing and fly away. Let’s all stop lying. It is the least judges, foreign or not, should do. It is the least we all should do.

Born and raised in Hong Kong, Phil C.W. Chan is the author of China, State Sovereignty and International Legal Order. He is working on his fourth book, When Liberalism, Authoritarianism and Rule of Law Collide: The Tragedy of Hong Kong