The Central People’s Government, in accordance with the Basic Law of the Hong Kong Special Administrative Region, has authorized Hong Kong to exercise independent judicial power, including that of final adjudication. Independent judicial power refers to Hong Kong’s judicial institutions exercising their powers in accordance with the constitutional authority of the country and judges adjudicating according to relevant law without interference by any outside individuals or institutions. This demonstrates the principle of the rule of law and is enshrined in the Basic Law, along with a set of boundaries that independent judicial power must not cross.
However, for a very long time and especially since the anti-government campaign, called “black revolution”, using the extradition-law amendment bill as an excuse began in June last year, the opposition camp in Hong Kong has gone out of their way to peddle the notion that Hong Kong’s political pattern is “separation of powers” and grossly misinterpret “judicial independence” in an attempt to make the judiciary a political instrument for its exclusive use.
Meanwhile, over the years, the judiciary has been claiming greater power for itself without constitutional authority, which led to a phenomenon called “self-empowering judiciary”. With such imaginary power, some judges made rulings that can only be described as ridiculous because they have stretched relevant law beyond recognition. If such behavior is allowed to continue, not only Hong Kong’s’ executive-led constitutional order will be in serious jeopardy, but its judicial independence will become judicial dictatorship as well.
The People’s Republic of China is a unitary state, where special administrative regions such as Hong Kong exercise their powers prescribed in the Basic Law, which was promulgated by the National People’s Congress in accordance with the Constitution. In other words, its powers are authorized by the State, also known as the central government. SARs have no right to assume additional powers without central government authorization according to the Constitution. Hong Kong’s independent judicial power is valid only within the confines of its constitutional order and cannot be expanded beyond its authorized jurisdiction, meaning it is unconstitutional to do so. For instance, in the “Ng Ka-ling (Wu Jialing) right of abode case” of 1999, which led to the very first interpretation of the Basic Law by the Standing Committee of the National People’s Congress on Jan 29, 1999, the Court of Final Appeal of the HKSAR determined that Hong Kong courts have the right to review whether the legislative behavior of the NPCSC is constitutional or not. It is not only an example of a lower rank institution asserting itself over a superior authority but also a violation of the Basic Law, which clearly stipulates that Hong Kong courts have no jurisdiction over the State. This means the conclusion by the CFA of the HKSAR is grossly unconstitutional, because the regional judicial organ exceeded its power prescribed in the Basic Law.
The NPC is the highest body of State power of the PRC, and its Standing Committee exercises that power on a daily basis. The constitutional authority of the NPCSC, without question, is way above that of Hong Kong’s judiciary. Although the CFA explained later that it would not challenge the authority of the NPCSC, it has yet to officially withdraw the unconstitutional claim on the right to examine whether the legislative actions of the NPCSC are constitutional or to abandon its self-assumed “responsibility for constitutionality review”. The Basic Law stipulates that HKSAR laws must be presented to the NPCSC for record and the latter can send them back for repair if they do not fully conform to the Basic Law, but it does not mention anything that even remotely resembles the “right of constitutionality review”.
During the “black revolution” last year, a Hong Kong court once again put itself above the NPCSC by carrying out what it called “constitutionality review” of a face-mask ban in public assemblies, issued by the HKSAR chief executive by invoking the Emergency Ordinance, and consequently concluded the ban violated the Basic Law. In doing so, the Hong Kong court in question undoubtedly exceeded its jurisdiction by assuming extra power without authorization. As a result, it prompted the Legislative Affairs Commission of the NPCSC to refute that claim in an official statement, underscoring the fact that Hong Kong courts have no right of “constitutionality review”.
Within the autonomy of the HKSAR, the executive, legislative and judicial branches exercise their constitutional powers according to the Basic Law, while the executive and legislative branches also serve as checks and balances on each other in addition to cooperating with and supervising each other. The judicial branch exercises its right of independent adjudication according to the Basic Law as well and is accountable to the Central People’s Government through the chief executive of the HKSAR, who is the head of both the HKSAR and its government. Yet the opposition camp in Hong Kong, in order to obstruct the administration of the HSKAR government and undermine the executive-led governance system with the CE at the core, routinely abused the judicial review exercise at the expense of the public. The judiciary, meanwhile, has repeatedly exceeded the original limits on its right of adjudication and the executive-led constitutional order by expanding the scope of adjudication beyond authorization on cases it clearly has no constitutional ground to pursue. Thus the judicial review mechanism has been abused and become a means for the opposition camp to influence or manipulate social or political issues in Hong Kong.
The judiciary serves as the guardian of the rule of law and therefore is obligated to uphold justice with fair, impartial and convincing court rulings. In reality, however, some judges have repeatedly abused their authority by making unjustifiable decisions based on ideological or political preference and even prejudices in the name of judicial independence. That is why many court rulings in favor of rioters have drawn widespread public criticism for being undeniably motivated by political bias. Such self-righteous behavior of certain judges clearly undermines the integrity of the judiciary and has disillusioned more people in recent months than ever.
The author is a senior researcher at the Bauhinia Institute. This article is the abridged translation of an analysis he published in the October issue of Bauhinia Magazine.
The views do not necessarily reflect those of China Daily.
