It is normally difficult to get lawyers to stop talking and stay quiet. But that is exactly what happened last Tuesday, when 2,000 of them, all dressed in black, marched through the center of Hong Kong in a dignified “silent protest” against a move by the Chinese government to directly intervene in the city’s legal affairs.
At the beginning of last week, the executive body of China’s parliament, the National People’s Congress Standing Committee (NPCSC), issued an “interpretation” of the Basic Law, Hong Kong’s miniconstitution that has provided the legal framework for the territory since its handover from Britain to China in 1997. The purpose of the interpretation was — and its probable legal effect would be — to bar two elected legislators from taking their seats in Hong Kong’s legislature. These lawmakers, Yau Wai-ching, 25, and Sixtus “Baggio” Leung, 30, have been elected on a platform advocating Hong Kong independence. Their specific offense (at least in the eyes of Beijing) was to unfurl a banner proclaiming “Hong Kong Is Not China” and to pronounce the country’s name in a derogatory manner during their swearing-in.
The interpretation has caused profound disquiet within Hong Kong, and particular consternation within the legal community. Immediately after the interpretation, the Hong Kong Bar Association expressed “deep regret” over the NPCSC’s action and stated that this would undermine “public confidence in the rule of law in Hong Kong” and its tradition of judicial independence. Dennis Kwok, the legislator representing the legal sector, quickly organized the silent protest, which was the biggest demonstration by the city’s lawyers since the handover, and which terminated at the Court of Final Appeal, an imposing neo-classical building that stands as a symbol of the separate legal system enjoyed by Hong Kong.
There is little dispute that the NPCSC has the legal power to issue interpretations of the Basic Law. But there is also a widespread sentiment (at least in Hong Kong, if not across the border) that it is a power that should be used only in very rare circumstances because of the grave damage it is capable of causing. Even Hong Kong’s former Chief Justice, Andrew Li — a respected figure who speaks in the precise, cautious manner typical of British-trained patricians — has stated in no uncertain terms that the NPCSC should refrain from using its power in a manner that overrides the Hong Kong courts: “Although it would be legally valid and binding, such an interpretation would have an adverse effect on judicial independence in Hong Kong.”
Although the NPCSC has previously issued four interpretations, this one is especially pernicious because, for the first time, the NPCSC issued its diktat while legal proceedings on the same issue were already taking place in a Hong Kong court. Indeed, the hearing had already finished and the judge was in the midst of writing his decision.
Moreover, although the decree claimed to be an interpretation of the Basic Law, its real effect was to add new content to a local Hong Kong statute — which is something beyond the NPCSC’s legal power and can only be done by Hong Kong’s own legislature. There is already local legislation that governs the taking of oaths, but the interpretation adds further requirements such as oaths having to be done “accurately, completely, and solemnly,” and that there will be “no arrangement … for retaking the oath” for anyone who fails to do it properly the first time.
The interpretation is a tragedy for Hong Kong. It strikes a deadly blow to the high degree of autonomy and judicial independence that was promised to Hong Kong and has been the cornerstone of its prosperity. By intervening on an issue that was being handled by the Hong Kong courts, and in a manner that effectively amends Hong Kong’s local laws, the Chinese government is sending a signal that the city’s separate system is a mirage, existing only to the degree that it aligns with Beijing’s wishes.
But it is also a tragedy for China — especially for its efforts to assimilate Hong Kong into its nation-building project and to persuade the city’s people that life is better now than under British rule. In a poll conducted this summer, nearly 1 in 6 respondents supported the idea of Hong Kong independence; and among 15- to 24-year-old, the level of support rose to almost 40%. That is an astonishing level of backing for an idea that, even five years ago, would have been rejected by all but a handful of fringe thinkers. Whether or not one supports the concept (and certainly, there are many Hong Kong democracy advocates who do not), its rising popularity is a clear indicator that Beijing’s heavy-handed rule has alienated a significant segment of Hong Kong’s population, particularly its youth.
As China makes its bid to become a global superpower, it must develop new and more nuanced ways of handling its affairs. In Hong Kong, China has a unique opportunity of showing the world — and particularly its neighbors in Asia — that it is capable of using not just brute force, but also sophisticated strategies that involve consensus, trust, and adherence to mutually agreed rules. However, as highlighted by the NPCSC’s latest interpretation, that is quickly becoming a lost opportunity.
The Progressive Lawyers Group is a grouping of pro-democracy lawyers that was set up in January 2015, shortly after the 2014 Umbrella Movement.
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