Essay
Hong Kong judges

by Peng Chun

Guaranteeing independence in the Hong Kong legal system

The Chinese government’s White Paper on the Practice of “One Country, Two Systems”, published a couple of months ago, has stirred up a storm. Released amidst the heat of the Occupy Central movement and ahead of an unofficial referendum on adopting universal suffrage in the 2017 Chief Executive election, the White Paper has been seen and criticized in Hong Kong as an attempt to thwart the burgeoning movement towards broader democracy by reasserting Beijing’s control over the special administrative region. Needless to say, the repercussions are still being felt today.

While the focus of attention/tension undoubtedly lies in universal suffrage, the legal profession has not been immune from the controversy, albeit for a different reason and with divided opinions. Its central concern is not democracy but the rule of law. More specifically, it is about one of the main pillars of the rule-of-law ideal and a key part of the much-cherished British heritage in Hong Kong—the independence of the judiciary.

A day after the White Paper was issued, the Hong Kong Bar Association published a strongly worded response, contending that independence of the judiciary was under threat. It was followed last month by a silent street march by more than 800 legal professionals from the High Court to the Court of Final Appeal. In contrast, Mr. Rimsky Yuen, the justice secretary of the HKSAR, insisted that the White Paper would not interfere with Hong Kong’s judicial independence, a position echoed by the President of the Hong Kong Law Society.

The kernel of the controversy lies in one sentence in Point 3, Part V of the White Paper: “Under the policy of ‘one country, two systems,’ all those who administrate Hong Kong, including the chief executive, principal officials, members of the Executive Council and Legislative Council, judges of the courts at different levels and other judicial personnel, have on their shoulders the responsibility of correctly understanding and implementing the Basic Law, of safeguarding the country’s sovereignty, security and development interests, and of ensuring the long-term prosperity and stability of Hong Kong. In a word, loving the country is the basic political requirement for Hong Kong’s administrators.” (emphasis added).

In brief, the White Paper puts Hong Kong’s judges on an equal footing with the legislators and executives as “administrators” who are politically required to love the country and safeguard its sovereignty, security and development. To those with sensitive ears, this is deeply alarming. In its public response, the HK Bar Association was adamant in insisting that it is wrong to categorize Judges and judicial officers as “administrators” or to officially exhort them to carry out any political task. Last month’s forced resignation of Ambrose Lam as the President of Hong Kong Bar Association has further highlighted how much the central government’s policy statement has touched the nerves of the legal profession.

To many the Beijing position is simply untenable, if not absurd. Ever since the Enlightenment there has been a widely-accepted distinction between the judiciary and the other branches of government such as the legislature and executive. Chinese political and jurisprudential ideology also, at least on the paper, acknowledges the special nature of the judiciary, even though the principle of separation of powers has never been formally accepted. For example, Article 126 of the PRC Constitution states that the People’s Courts exercise judicial power independently according to law, without interference from government, social groups or individuals. There are no comparable requirements imposed on, for instance, government officials or even the staff of the People’s Procuratorate. Seen in this light, even in mainland China, judges are not considered to be the same as people’s representatives or government officials.

Nevertheless, in a rather plain and straightforward manner, the White Paper seems to conflate the Hong Kong judiciary with its executive and legislative branches. This has angered many as an open violation of the promise made in the Joint Declaration and Article 85 of the Basic Law that the HKSAR will be vested with independent judicial power.

That said, to those who drafted the White Paper, it is not apparent that classifying judges as administrators is a flagrant violation of both the generally acknowledged concepts and vocabularies of political and legal theories and the constitutional documents that govern the Special Administrative Region.

Most notably, Professor Jiang Shigong from Peking University Law School, one of the three master brains behind the White Paper, thinks differently and for quite some time. Spending four years on secondment to the liaison office of the Central People’s Government in Hong Kong between 2004 and 2008, he has committed himself to the study of constitutional and political aspects of the Hong Kong question. Judging from his articles published both prior to and after the White Paper, we have every reason to believe that he is responsible for this rather controversial proposition.

Two distinct, yet interrelated, issues are at play here. One is whether or not the Hong Kong judiciary should be categorized in the same way as those who administer Hong Kong. The other is if and how judges in Hong Kong should be subject to the basic political requirement of the HK administrators—loving the country.

The key to the first question lies in the concept “Administrators of Hong Kong”, which in Chinese is 治港者. There exist different understandings of it precisely because 治 is a polysemous word. In Professor Jiang’s view, understood correctly in the context of the White Paper, 治 refers to the power to govern/rule, or in political theoretical terms, the sovereign power.

Seen in this light, the judges in Hong Kong are necessarily wielding part of the sovereign power, i.e. the judicial power, and therefore constitute a group of administrators of the region. It is in this sense that anyone within the political establishment can be called an administrator of Hong Kong. Therefore, despite being the official rendering, to translate治as “administrate” is misleading. “Rule” is a better candidate to capture the much broader connotation. After all, 治in traditional Chinese politics stood for the all-encompassing power to run a place which was not further divided into the legislative, executive and judicial branches.

To be sure, this is exactly the reason that such an interpretation of治港者 is said to be unduly expansive by many Hongkongers. Yet it is not so obvious that putting the judges into the camp of administrators in the just-mentioned sense will necessarily harm their treasured independence. At the end of the day, the fact that they share the ruling power with executive officials and legislators does not per se suggest they all follow the same modus operandi or one will be influenced by another.

That said, the next question is what really worries those criticizing the White Paper. Under the famous principle of “patriots running Hong Kong” – which has so far never been disputed (at least openly) – being classified as治港者 has profound implications for the political identity and loyalty of the judiciary. In other words, a positive answer to the first question naturally results in a yes answer to the second. Should and how can a judge in Hong Kong be a patriot that loves the country?

We should note that there are many versions of patriotism for Hongkongers. Most famous are the two put forward by Deng Xiaoping. In June 1984, prior to the signing of the Sino-British Joint Declaration, he suggested that “a patriot is one who respects the Chinese nation, sincerely supports the motherland’s resumption of sovereignty over Hong Kong…Those who meet these requirements are patriots, whether they believe in capitalism or feudalism or even slavery. We don’t demand that they be in favour of China’s socialist system”.

Here Deng touched upon both the cultural and political dimension of what is meant by “loving the country”. On the cultural side, it requires one’s affection towards the Chinese nation with all its splendid historical achievements. On the political side, Deng seemed to be in favour of a minimalist notion with just one requirement: support for the restoration of Hong Kong to China. It is then no wonder that three decades later, the English term adopted in the White Paper for the Chinese word 国 is “country”, not state, which is most likely a careful choice of terminology.

Obviously, the former represents the civilizational aspect of China whereas the latter is associated more with its government regime and socio-political system. If such a translation of terms is still a faithful reflection of the reality, there is indeed nothing much to be concerned about, even though the standard of cultural patriotism is difficult to meet for those Hong Kong judges who are not Chinese but foreigners. Unfortunately that is no longer the case today and political patriotism is the real fault line, the underlying reason being the change in the meaning of political patriotism.

In 1987, three years after advocating this minimalist political patriotism, Deng stated to the Drafting Committee of the Basic Law that “to keep Hong Kong prosperous and stable for 50 years and beyond, it is essential to maintain the socialist system under the leadership of the Communist Party…Try to imagine what would become of Hong Kong if China changed its socialist system…under the leadership of the Communist Party. That would be the end of prosperity and stability for Hong Kong. To make sure the policy remains unchanged for 50 years and beyond, we must keep the socialist system on the mainland unchanged.”

It is not difficult to notice a change of mind here. In Deng’s definition, political patriotism no longer merely demands support for Hong Kong returning to China—it also involves acceptance of the socialist system and party leadership on the mainland. While this was undoubtedly a more onerous condition in general, one should pay attention to a further distinction between active and passive acceptance. To Deng Xiaoping, after 1997 people in Hong Kong will still be allowed to “attack the Chinese Communist Party and China verbally”. However, they will not be permitted to “turn their words into action, trying to convert Hong Kong into a base of opposition to the mainland under the pretext of ‘democracy’”. If that happens, intervention is required.

But it shall first come from the administrative bodies in Hong Kong. Therefore, in Deng Xiaoping’s vision, passive acceptance applies to those other than the administrative bodies in Hong Kong, which only asks for no positive actions to undermine the political status quo in the mainland. In contrast, active acceptance applies to Hong Kong’s administrative bodies, which entails positive actions to stop “obstruction or sabotage” of the political system in China.

Two points about such a distinction are worth further mentioning. First, since the line between words and actions is always a fine one, the (in)famous Article 23 of the Basic Law is supposed to authorize the Hong Kong government to legislate on this intricate issue. Second, when it comes to positive acceptance of the mainland’s political system, Deng’s emphasis seemed to be exclusively on the administrative/executive branch of the government in Hong Kong. He was definitely right on this because the executive is by far the most crucial and powerful component of the Hong Kong government. It is simply unimaginable that it is only asked to be passively loyal to the Beijing government when, after all, the People’s Republic is a unitary state.

This remains the case today, which largely explains why the central government has not and will not budge on selecting ‘appropriate’ Chief Executive candidates prior to the election. A veto on appointing someone who is elected but is not accepted by Beijing cannot be a satisfactory choice given the potential embarrassment and instability that may cause. However, at least according to Deng Xiaoping in 1987, the legislature and judiciary were left out of the group in Hong Kong required to be actively loyal to the central government.

Twenty-seven years later, that situation was changed by the White Paper, which explicitly imposes such an obligation upon both the members of the legislative council and the judges. This can be seen as one step further along the trajectory of increasingly heightened demands of political patriotism from all those who run Hong Kong. The most important reason behind this is likely to be the fact that 17 years after the handover, the mutual distrust and antagonism between the mainland and Hong Kong – especially the society at large – is growing rather than diminishing. Signs of this are not hard to find. The intensified demand for political loyalty expressed in the White Paper reflects the worry and concern of the central government.

Yet our question remains: should judges be politically patriotic? Besides classifying them as part of the administration, the other widely propagated justification is that it is a universal practice for judges to take an oath and swear loyalty to the state. For instance, Ms Liang Aishi, the deputy director of the Hong Kong Basic Law Committee of the Standing Committee of the National People’s Congress, suggested in an interview earlier this year that in both the UK and USA judges must also vow their loyalty to the state so why shouldn’t judges in Hong Kong to do the same.

Is that true? The relevant bit of the British judicial oath reads “I will well and truly serve our Sovereign Lady Queen Elizabeth the Second”. The American judicial oath for the Supreme Court is “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same”.

What is clear is that in these two countries, the judiciaries pledge allegiance to a largely apolitical institution or document. In the UK the Queen, or more generally the monarchy, is a symbolic representation of the country and state. The monarch does not enjoy much substantive power, nor is s/he linked with a particular ideology or policy orientation. In the US, the Constitution is generally recognized to be over and above politics.

To be sure, this is not to say that the British monarchy or American Constitution is intrinsically apolitical—they are not and both embody profound and centuries-old political ideas and ideals. However, when it comes to day-to-day business, they are generally considered within their societies to be apolitical. It is precisely because of this that an oath of judicial allegiance to them has become acceptable in these countries.

Nevertheless, similar conditions are absent in the case of Hong Kong. Paying allegiance to the Beijing government is seen by the judiciary and society in Hong Kong as undesirably political—after all, completely different systems and ideology are in operation on the mainland. It is somewhat schizophrenic for a judge in a capitalist society to be loyal to socialism.

But we should not overestimate the risk posed by the White Paper to judicial independence and integrity in Hong Kong. The reason is that Justice Secretary Rimsky Yuen said “when judges take their oath when assuming office, it is already a legal manifestation of the ‘love the country, love Hong Kong’ concept”. This shows that there is no specific additional burden incurred. In fact, to pursue the question how judges in Hong Kong can be patriotic leads us towards a dead end. This is because the White Paper is not a guideline, let alone a detailed handbook, on how Hong Kong should be run or how judges there should go about their business.

As previously mentioned, having been published on the eve of the coming referendum on political development, the White Paper was more of a showdown of the central government. Therefore, it is not intended to and will not affect the workings of the Hong Kong judiciary. For example, unlike the filtering mechanism for the chief executive election, the appointment of judges in Hong Kong is exclusively the task of an independent judicial appointment commission consisting of nine members. Judges are appointed by the chief executive on the recommendation of an independent commission.

Nor will the White Paper cause unwanted inference with the adjudication of cases because even if the central government thinks that any individual judgments issued by the Hong Kong court may harm the national interests, it can still exercise the final interpretative power through the Standing Committee of the National People’s Congress. This is going to happen regardless of the White Paper.

Overall, at a different time, the issue of patriotic judiciary would have been less controversial and probably would have been resolved inside the courtroom by meticulous and pedantic argumentation about the appropriate interpretation of the relevant terms. Nevertheless, in an atmosphere where mutual affinity between Hong Kong and the mainland is at record low, such a process seems to be out of reach for the moment. It remains to be seen how long this strife will last and at what social and economic costs.

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