Less than two years after the Hong Kong handover, the British Government has become indifferent to the erosion of the rule of law in Hong Kong. Despite attacks on Hong Kong's legal system, initiated by the Hong Kong Special Administrative Regional (SAR) Government, the British Consulate-General in Hong Kong issued a bland and feeble statement on June 29 which actually "welcomed the Government's commitment to an independent judiciary and rule of law."
The British Consulate's statement followed a June 26 "interpretation" by the Standing Committee of National People's Congress regarding a legal issue that had already been settled by Hong Kong's Court of Final Appeal. This so-called interpretation essentially reversed a January 29 decision by the Court of Final Appeal, thus stripping the court of its power of final adjudication, and reducing it to a semi-final court of appeal.
On June 29, the British Consulate-General in Hong Kong issued a statement on the interpretation by the Standing Committee. "We welcome the fact that the SAR Government has reiterated its commitment to [an independent judiciary and the rule of law] as an imperative and a duty; and welcome the SAR Government's assurances that their request [for interpretations by the Standing Committee] will be based on exceptional and unprecedented circumstances."
The Sino-British Joint Declaration of 1984 guaranteed that the common law judicial system previously practised in Hong Kong would be maintained following the handover of Hong Kong to China; that Hong Kong would have an independent judiciary vested with the power of final adjudication; and that Hong Kong would enjoy a high degree of autonomy. All of these promises have now been violated.
The British Consulate-General statement failed to reflect the fact that the Hong Kong Government has rejected overwhelming demands from the legal community to refrain from approaching the Standing Committee for legal interpretations in the future. According to the Basic Law, only the Court of Final Appeal has the right to refer a case to the Standing Committee for an interpretation of the law.
The British Consulate-General statement also failed to address the Hong Kong Government's efforts to chip away at Hong Kong's common law system by incorporating elements of the Chinese communist legal system. Last week, Secretary for Justice Elsie Leung urged the legal community in Hong Kong to accept "civil" elements in Hong Kong's new constitutional order. The Joint Declaration does not provide for the incorporation of "civil law" into Hong Kong's legal system but for the preservation of the common law system already practised in Hong Kong before the handover.
In a common law system, only the court has the power to interpret the law. If the executive and the legislature are not satisfied with the court's interpretation of the law, the appropriate recourse is to amend the law. A common law court is never overruled by a non-judicial body consisting of politicians.
In the case of Hong Kong, the limit imposed on the Court of Final Appeal's power to interpret the Basic Law is incompatible with the power of final adjudication. With the Standing Committee always available to re-interpret the law and review interpretations by the courts, no judgment can ever be final. Even the Basic Law, the mini-constitution of Hong Kong, does not envisage such a broad role for the Standing Committee. The Standing Committee's authority to interpret the law is triggered only upon a request by the courts prior to the issuance of a final judgment. Appallingly, the Hong Kong Government now insists that the Standing Committee may always wield the power of interpretation, with or without a case before the court, and before, during and after any court hearing.
By welcoming the Hong Kong Government's empty 'assurances' instead of condemning the recent violations of the Joint Declaration, the British Consulate-General statement was deeply regrettable. Empty assurances are not sufficient to uphold the rule of law in Hong Kong, especially when they are contradicted by Hong Kong Government's actions.. The British Consulate-General should reaffirm the guarantees of the Sino-British Joint Declaration and play a more constructive role in Hong Kong's current constitutional debate.