Opinion | HKSAR 25th Anniversary: Legal strengths ensure success of 'one country, two systems' policy
By Grenville Cross
As the Hong Kong Special Administrative Region celebrates its 25th anniversary, its progress since 1997 is there for all to see. Quite clearly, the last 25 years have been something of a roller-coaster, with challenges aplenty. The litmus test, however, of any governmental system is its utility, with its capacity to deliver being the key.
Since 1997, Hong Kong's development has been underpinned by the Basic Law, which embodies the "one country, two systems" governing policy. This policy provided the city with a great start in life, including its legal framework. Indeed, Hong Kong's greatest asset has always been the rule of law, and this has been at the front and center of its development since the reunification.
Thus, the legal system has not only inspired confidence in local residents, who regularly avail themselves of it, but also provided the business community with the certainty it needs for its forward planning, invariably involving the Chinese mainland. Since 1997, Hong Kong has developed as a center for legal and arbitration services, and this has been a godsend for those wishing to take advantage of the China market. According to the Queen Mary University of London's 2021 International Arbitration Survey, Hong Kong ranks as the world's third-most preferred seat of arbitration, which is no mean feat, and much of the credit for this must go to the secretary for justice, Teresa Cheng Yeuk-wah, who has been a pacesetter in this area.
Through the Basic Law, moreover, the common law-based legal system has been maintained, and the city has remained firmly plugged into the traditions of the common law world. An independent Judiciary is provided for, and this ensures that trials are fairly conducted, that litigants enjoy a level playing field, and that basic principles are respected. Although, prior to 1997, judicial independence was simply a matter of convention, it is now, because of the Basic Law, constitutionally entrenched, and this has helped to secure the position of the judges.
The International Covenant on Civil and Political Rights, which contains the fair trial guarantees, applies in Hong Kong, by virtue of both the Basic Law (Art.39), and the National Security Law (Art.4), and the significance of this cannot be overestimated. It has helped to ensure that the highest standards of criminal justice are maintained in trials of whatever nature, and that those accused of crime are fairly treated throughout the proceedings. This has promoted just outcomes, and rights of appeal are available to anybody wishing to challenge their conviction or sentence.
The Basic Law also provides for the constitutional independence of prosecutors, who have operated from a secure base since 1997. In consequence, Hong Kong now enjoys a system of public prosecutions that is fair, open and just, and attuned to the traditions of the common law world. Whereas criminal suspects can only be prosecuted if the evidence affords a reasonable prospect of conviction, there will only ever be a conviction if the court is satisfied with guilt beyond reasonable doubt.
In discharging their duties, the judges are bound by the judicial oath, which requires them to "safeguard the law and administer justice without fear or favor". They are appointed by the Chief Executive on the recommendation of an independent commission, chaired by the Chief Justice, and are chosen on the basis of their legal ability, professional standing and personal integrity. Although malign individuals, often from abroad, have sought to besmirch the legal system, by claiming that judicial independence is under threat, insiders know such slurs are spurious. As Hong Kong's first chief justice, Andrew Li Kwok-nang, explained on June 15, 2022, when discussing the first 25 years, "I can state that during this period, there has been no instance of interference with how a judge should adjudicate, and there has been no instance of interference with the process of judicial appointment."
A central feature of Hong Kong's legal progress has been the creation of the Hong Kong Court of Final Appeal in 1997, and the Basic Law vests it with the power of final adjudication. It comprises both permanent local judges and non-permanent judges from other common law jurisdictions, and they have pooled their talents to advance the rule of law. Over the past 25 years, these jurists have not only guided the city's legal fortunes, but also established impeccable credentials for their Court. Their judgments have been highly acclaimed, and they are frequently cited with approval in other common law jurisdictions around the world. Although anti-China forces have sought to undermine the "one country, two systems" policy by targeting the non-permanent judges, whom they hoped to pressurize into resigning, they have made little headway. Whereas several resigned, the vast majority of them decided, in the highest traditions of their profession, to ignore the pressure, and the rule of law has been the beneficiary.
This, of course, explains why Hong Kong's legal arrangements have been ranked so highly by objective observers at the global level. Whereas, for example, the World Justice Project's Rule of Law Index is the world's leading source for original, independent data on the rule of law, it has consistently rated the city highly. The Index covers 139 countries and jurisdictions, and measures the rule of law based on the experiences and perceptions of the general public and in-country legal practitioners and experts worldwide. In the 2021 Index, Hong Kong ranked 19th, with what was called "a strong adherence to the rule of law", which was significant in the aftermath of the failed insurrection of 2019-20, and illustrated the city's resilience.
Indeed, although Hong Kong was just behind the UK (16th) and Singapore (17th), it was well ahead of many Western countries, such as France, which was 23rd, the United States, at 27th, and Greece, at 48th. Quite clearly, this was an impressive ranking, and the city's Judiciary is entitled to much of the credit. It was a clear recognition of all the Judiciary has achieved since 1997, most notably in terms of safeguarding the rule of law, maintaining legal standards and resisting hostile forces bent on undermining the "one country, two systems" policy.
Perhaps unsurprisingly, the anti-China forces who have sought to harm the Judiciary are generally the same people who have complained most loudly about the Basic Law's Article 158, which allows the Standing Committee of the National People's Congress (NPCSC) to make an interpretation of the Basic Law in specific circumstances. Legislative interpretations of this sort are not uncommon, and are used, for example, in the European Union, where the European Court of Justice issues interpretations of EU law for the guidance of the courts of member states. Indeed, Article 158 provides an interface between the Chinese mainland, which applies the continental legal system of legislative interpretation under the Constitution of the People's Republic of China, and Hong Kong, which applies the common law system of judicial interpretation.
An interpretation by the NPCSC is, moreover, rare, and can only arise if certain pre-conditions are satisfied. Although the Hong Kong courts are empowered, when adjudicating cases, to interpret the Basic Law, provided the issue under consideration falls within the scope of local autonomy, the NPCSC will need to consider an interpretation if it concerns matters that are the responsibility of the central government, or which involve the relationship between the central authorities and Hong Kong, which clearly makes sense.
But, far from being the source of concern that some suggest, the NPCSC's interpretative power has only been invoked on 5 occasions in the past 25 years, which works out at once every five years. Of those 5 interpretations, the NPCSC only issued two on its own motion in 25 years, the first in 2004, on amending the electoral methods for the Chief Executive and Legislative Council elections, and the second in 2016, on the requirements for lawful oaths and affirmations. Although there were 3 other interpretations, these were at the request of Hong Kong itself, covering the right of abode, jurisdiction over acts of state (state immunity), and the duration of the Chief Executive's term of office.
Quite clearly, therefore, the NPCSC's interpretative power has been deployed with great restraint, and this, apart from anything else, demonstrates how much it respects the "one country, two systems" policy. Far from invoking the power willy-nilly, it has only been deployed when this was strictly required, and when issues of national significance required resolution. The 5 interpretations made since 1997 have been very useful, and have helped to resolve tensions between the two jurisdictions. At the same time, the two legal systems have remained separate and distinct, with each respecting the other.
The incoming chief executive, John Lee Ka-chiu, describes his commitment to the rule of law as "unassailable", and this bodes well for Hong Kong. He has pledged to place more emphasis on promoting Hong Kong's legal system, which, he says, has provided the "crucial underpinning" of the "one country, two systems" policy over the past 25 years. He describes the rule of law as being "key to the confidence in Hong Kong, and our long-term prosperity and stability as an international financial and investment center", and this could hardly be clearer.
Looking ahead, there is no reason why the "one country, two systems" policy should not, as envisaged by China's former leader, Deng Xiaoping, its architect, continue indefinitely. In practical terms, this means that the two legal systems will continue to develop in their own distinctive ways, with each complementing the other. The city's various legal institutions have all learned invaluable lessons since 1997, and these will fortify them going forward. Even if, as expected, foreign forces try again to harm the legal system, it is now sufficiently resilient to rebuff any assaults. After all, "one country, two systems" has shown itself to be nothing if not durable, and this will ensure that Hong Kong can achieve the objectives it has set for itself over the next 25 years, and beyond.
Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of DotDotNews.
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