(This essay was published in South China Morning Post on 28 December 2016.)
On November 7 the NPC Standing Committee interpreted the provisions under Article 104 of the Basic Law to resolve the Legislative Council oath-taking row.
Since the case was already before Hong Kong’s courts, it was felt an NPC Standing Committee interpretation would undermine autonomy and confidence in the city’s separate legal system.
The political reason for Beijing’s contentious interpretation is straightforward. Beijing is prepared to set down a bright line rule against advocating independence by public officials during solemn oath taking and to treat such offences as blatant contraventions of the “one-country” principle. In so doing, Beijing has tilted the delicate balance between “one country” and “two systems” towards the former.
From a legal perspective, there is an inherent tension in anchoring Hong Kong’s common law system within China’s civil law system. These two legal systems have different approaches to the resolution of disputes that can be traced back to the different political circumstances that prevailed in England and France over 800 years ago.
At that time, the English king commanded greater power over his subjects than did the French king.
In England, William the Conqueror prevented the creation of large contiguous land holdings to weaken the local nobles, an opportunity not available to the king of France.
Feudal lords in England were more afraid of the king than of their neighbors, so they were willing to pay the king to allow them to resolve disputes locally since he had the power to protect local law enforcers. This led to adjudication by relatively independent lay juries
In France, relations between the king and local nobles were more like those between independent powers. A jury of notables in France would not be able to deliver justice when the interests of local nobles were involved. So royally appointed professional judges were favored.
The situation in France led to the codification of civil law in the 19th century, which involves greater reliance on specific “bright line” rules rather than broad principles for adjudication. A bright line rule is a clearly-defined rule or standard that leaves little or no room for varying interpretation. It can be seen as an efficient attempt by the sovereign to control judges as his knowledge of individual disputes deteriorates. Many jurists often consider this as a defining element of the civil law system.
Today, there is a great deal of convergence between common and civil law systems in rich democratic countries as their legal and political systems have advanced.
Still, when civil law is transplanted into an environment with a bad government, there is strong evidence that it will lead to more abuse. The common law sovereign is less able to use the legal system for political purposes.
In Hong Kong, the appearance of pro-independence voices in official political organs has triggered civil law-like instincts in the Chinese sovereign to safeguard the principle of “one country” through an interpretation of the Basic Law, without much regard for common law-like practices and there more uncertain outcomes.
For a common law system to operate within a civil law system, there must be deep tolerance and mutual sensitivity, and respect for each other’s prerogatives.
From Beijing’s point of view, a rejection of a National People’s Congress Standing Committee interpretation of the Basic Law by Hong Kong amounts to a denial of the nation’s sovereignty over the city.
Interestingly, in the decision of the “Director of Immigration vs Chong Fungyuen” case, Hong Kong’s top court ruled that Chinese citizens born in Hong Kong enjoyed the right of abode regardless of the Hong Kong immigration status of their parents. By creatively drawing on a common law distinction, the top court split the Standing Committee’s interpretation of the Basic Law over the right of abode into two parts: the “binding reason” for the decision and the “nonbinding judgment” on a case. The Standing Committee’s interpretation applicable to the case was classified under the latter.
Consequently, the top court was able to rule that all those born in Hong Kong to mainland parents enjoyed the right of abode here. The Hong Kong Government did not challenge this judgment. In the following decade, more than 200,000 babies of mainland parents were born here. Ironically, this likely became one of the factors that kindled independence sentiments.
After the ruling, a Standing Committee spokesman expressed concern over the right of abode verdict, but only said gently that the ruling was not consistent with the interpretation. But it did not issue an interpretation to reverse the creative distinction drawn in the Chong Fungyuen case.
The issue at stake then was over the right of abode (an issue primarily of local concern), and not pro-independence politics—an issue of vital concern to the sovereign that threatens the “one country” principle. The consequences of the recent interpretation on Hong Kong’s governance are too early to tell. Like most, I think the fewer the interpretations, the better off we are. This will require greater circumspection and wisdom in our political actions.