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Monday, February 17, 2020, 11:17
Legal practitioners should take initiative to uphold the rule of law
By Edward Liu
Monday, February 17, 2020, 11:17 By Edward Liu

The protests and violent demonstrations against the extradition-law amendment bill wreaked havoc in Hong Kong for around seven months. Although they stopped around the District Council elections in late November, violent acts resurged in December and the New Year holiday. Due to the protesters’ illegal actions such as blocking roads, arson, vandalism and assaults, many people lost interest in Christmas and New Year celebrations altogether over fears of violent disruptions.

The so-called “perfect storm” triggered by the now-withdrawn legislation was undoubtedly fueled by grievances over various deep-seated social problems. Nevertheless, the anti-extradition-bill movement did reflect concerns about the amended extradition laws’ ability to protect Hong Kong’s common law system.

It is an undeniable fact that the movement was not at all what the protesters claimed. Instead of defending the rule of law in Hong Kong, the movement has severely damaged it with violence and criminal vandalism. Radical members of the movement have been threatening the city with “total destruction” — meaning they would destroy everybody and everything if their demands were not fully met. Not only is this completely contrary to their stated intentions, it is actually destroying the foundation Hong Kong has always depended on to thrive. Regrettably, some lawyers in Hong Kong turned a blind eye to these violent acts and even made comments that could be seen as encouraging criminality.

Such encouragement naturally had negative consequences. For instance, radical protesters threw gasoline bombs at the Court of Final Appeal and the High Court buildings on Dec 9. The latter was vandalized again after the New Year’s Day protest. They also mounted vicious verbal attacks on individual judges. All of these unprecedented incidents are big blows to the rule of law and judicial authority in Hong Kong.

In the past 22 years, the Hong Kong Bar Association has often been critical of the SAR and the central governments over major legal disputes, such as the proposed extradition-law amendment legislation. In hindsight, those major legal disputes almost always had something to do with the National People’s Congress’ decisions concerning Hong Kong, most notably the five times when the NPC Standing Committee exercised its constitutional power to interpret the Basic Law. I cannot help but wonder how if ever, the HKBA could recognize the constitutional authority of the Basic Law, which protects the cornerstone of Hong Kong’s legal system, the ‘‘one country, two systems’’ principle.

Instead of defending the rule of law in Hong Kong, the movement has severely damaged it with violence and criminal vandalism. Radical members of the movement have been threatening the city with “total destruction” — meaning they would destroy everybody and everything if their demands were not fully met

The statutory basis for Hong Kong to maintain its common law roots lies in the Constitution of the People’s Republic of China and the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. The Constitution is China’s fundamental law, and the Basic Law is a national law. Together they determine Hong Kong’s constitutional status as a special administrative region of China — which is a unitary state. Be it the original legal system, judicial principles, judicial independence, power of final adjudication, or the recent high-profile and somewhat controversial hiring of foreign judges from other common law jurisdictions, all of this has been established and maintained through the Basic Law.

Also, according to the Basic Law, the NPCSC holds the right to interpret the Basic Law, while Hong Kong courts do not have jurisdiction over cases concerning national defense or foreign affairs. It is of paramount importance for the law practitioners in Hong Kong to fully understand this premise. It is counterproductive, if not detrimental, to the rule of law in Hong Kong when people deliberately ignore “one country” and the constitutional authority of the NPCSC — usually in the name of judicial independence and the right of final adjudication.

Without its ideological bias, the legal sector should have little problem recognizing the respect the central government has for the legal traditions and the rule of law in Hong Kong. For example, the Guangdong-Hong Kong-Macao Greater Bay Area outline development plan issued in last year’s February clearly establishes Hong Kong as the “Asia-Pacific international legal and dispute resolution services center”. This was also set out in the Opinions on the People’s Courts to Further Provide Judicial Services and Guarantees for the Construction of the Belt and Road Initiative issued by the Supreme People’s Court at the end of last year. This shows that the central government strongly supports Hong Kong in building a regional legal services and dispute resolution center and in establishing a joint arbitration and mediation mechanism for international commercial disputes.

It is clear that only by consistently maintaining, upgrading, and giving full play to its irreplaceable advantages can Hong Kong’s legal system and rule of law be fundamentally protected. This will afford Hong Kong’s legal system greater leeway under “two systems” and allow the spirit of the rule of law to become more robust. Constantly politicizing legal issues and blindly engaging in stubborn opposition to the NPCSC’s constitutional authority or decisions will only erode the mutual trust between the Hong Kong legal sector and the central government to the detriment of the SAR’s overall interests including those of the legal sector.

The author is vice-president of the Hong Kong and Mainland Legal Profession Association. 

The views do not necessarily reflect those of China Daily. 

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