Rule of Law in Hong Kong’s Brave New World
Hong Kong must have thought to itself, “O brave new world, that has such people in it”, as it listened to a speech by the Director of Beijing’s Liaison Office in Hong Kong (“DLO”) in September. “For a correct understanding and implementation of the Basic Law [Hong Kong’s mini-constitution],” the DLO remarked, “we also need the courage to clarify some erroneous or ambiguous points of view.” It was the preamble to his pronouncement: “Hong Kong has not been implementing… the ‘separation of powers’, neither before nor after its return to China.”
This is the latest “backlash” since last year’s Occupy Central protests, demanding democracy and genuine universal suffrage in the election of the Chief Executive (“CE”), Hong Kong’s head of government. The take-home message: all branches of government, including the judiciary, should now “cooperate” with the CE, who has a transcendent legal position. Soon after, the CE meekly decreed his own “transcendence”. No wonder the Magna Carta was received so coldly in Beijing.
The DLO’s claims are particularly dubious given that Article 2 of the Basic Law mandates distinct branches of government, while Articles 19 and 85 reinforce judicial independence “free from any interference.” This ought to alarm us – the way that written law could be casually glossed over, whereas an unwritten “transcendence” could be legitimised by executive fiat. An executive-led “coordination of powers” is precisely what Montesquieu warned against – “there is no liberty, if the judiciary power be not separated from the legislative and executive”.
Chief Justice Geoffrey Ma responded robustly, stressing that “Hong Kong has always regarded the existence of the rule of law to be crucial”, with “the existence of an independent judiciary to enforce rights and fundamental freedoms”. The Bar Association also voiced its opposition, while former Chief Justice Andrew Li wrote that “under the rule of law, no one, however high his position, is above the law.”
In Leung Kwok Hung v The President of the Legislative Council  1 HKC 195 at , the Court of Final Appeal (“CFA”) expressly recognised that “the doctrine of the separation of powers… is a common law doctrine which… is reinforced by the constitutional separation of powers provided for by the Basic Law”. The rule of law and separation of powers are really two sides of the same coin. Lord Steyn emphasised in R (Anderson) v SSHD  UKHL 46 at : “the separation of powers… is reinforced by constitutional principles of judicial independence, access to justice, and the rule of law.”
In a clever retort to the judges’ views, a Basic Law Committee member commented that “[judges] are not entirely accurate on certain issues, such as those relating to the Basic Law”. However, in a society governed by the rule of law, it is axiomatic that the judiciary is entrusted with the correct interpretation of the law. As Lord Bridge observed in X v Morgan Grampian Ltd  AC 1 at 48: “the rule of law rests upon twin foundations: the sovereignty of the [legislature] in making the law and the sovereignty of [the courts] in interpreting and applying the law.” This is consistent with Article 82 of the Basic Law, which gives the CFA “the power of final adjudication”.
We can only appreciate the significance of the rule of law by considering the counterfactual–a government that always has the final word. The dangers are thrown into sharp relief by the “orchestrated” effort to prevent the University of Hong Kong from appointing Professor Johannes Chan (the Dean of the Law Faculty who supported Occupy Central) as pro-vice-chancellor. Today, there is the subversion of academic freedom. Tomorrow, would we see attempts to interfere with judicial independence?
Many would say it is the pan-democrats’ fault for provoking Beijing. Little do they know, the fault is not with those who spoke out to defend democratic values. Quite the contrary, it was necessary for the students, judges, lawyers to do so – but it was not sufficient, as the rest of the world acquiesced.
In truth, the fault is ours, because “most human beings have an almost infinite capacity for taking things for granted”. Huxley wrote of it a century ago. Now, this is becoming our brave new world.