-
The US consul general’s warning of an erosion of judicial independence fails to understand the nature of Hong Kong’s ‘high degree of autonomy’
-
The power of interpretation in a civil law system is legislative in nature, not judicial, and it deals with the constitutional or legislative intent of a law, rather than specific cases
Before we dive into the piece here’s some background on the author via Wikipedia
Ronny Tong Ka-wah
|
|
---|---|
???
|
|
![]() |
|
Non-official Member of the Executive Council | |
Assumed office 1 July 2017 |
|
Appointed by | Carrie Lam |
Member of the Legislative Council | |
In office 1 October 2004 – 30 September 2015 |
|
Preceded by | New seat |
Succeeded by | Alvin Yeung |
Constituency | New Territories East |
Personal details | |
Born | 28 August 1950 British Hong Kong |
Nationality | Chinese (Hong Kong) |
Political party | Path of Democracy (since 2015) |
Other political affiliations |
Civic Party (2006–15) |
Spouse | Daisy Tong Yeung Wai-lan |
Residence(s) | Tai Po, Hong Kong |
Alma mater | University of Hong Kong (LL.B.) St Edmund Hall, Oxford (B.C.L.) |
Profession | Senior counsel |
Ronny Tong Ka-wah, SC KC (Chinese: ???; born 28 August 1950 in Hong Kong) is a Hong Kong Senior Counsel and politician. He is a current non-official member of the Executive Council of Hong Kong. He co-founded the Civic Party and was a member of the Legislative Council of Hong Kong, representing the New Territories East constituency from 2004 until he quit the party and resigned from the legislature on 22 June 2015, following the historic vote on Hong Kong electoral reform a few days earlier, having switched his political alignment from pro-democracy to pro-Beijing Hong Kong political group Path of Democracy, of which he is currently the convener.
Education and legal career
Tong was born in Hong Kong in 1950. His ancestral hometown is Xinhui, Guangdong province. He attended Queen’s College, Hong Kong and studied law at the University of Hong Kong, where he graduated top of his class and with first-class honours. He then further received his Bachelor of Civil Law degree from St Edmund Hall, Oxford. He was called to the Bar by the Middle Temple and achieved top marks in the Bar Exams.[1] He took silk in 1990 and was the chairman of the Hong Kong Bar Association from 1999 to 2001. He continues to practice from Temple Chambers, where he served as Head of Chambers from 2001 to 2006.[2]
Eight days after his election as Bar chairman on 21 January 1999, the Court of Final Appeal ruled that mainland Chinese children born before their parents became Hong Kong permanent residents were entitled to right of abode in the city. In June 1999, the National People’s Congress Standing Committee (NPCSC) made an interpretation of the Basic Law that effectively overruled the city’s top court in the case. Tong opposed the NPCSC’s interpretation, warning that a “Damocles sword” was hanging over the head of the Court of Final Appeal as a result of the government’s refusal to rule out requesting Beijing to interpret the law in future cases. He said the failure to make a public promise not to seek further interpretations of the Basic Law from Beijing had damaged public confidence in the rule of law. “Confidence in our legal system and the independence of our judiciary are bound to suffer,” he said in his annual report to barristers.[3]
Tong also targeted then Secretary for Justice Elsie Leung Oi-sie‘s handling of the Sally Aw Sian case, in which the publishing tycoon was not prosecuted for a fraud plot involving her company although she was named as a conspirator in the charges.
Tong sat as a Deputy High Court Judge in 2002.
In November 2022, Tong said he was surprised by the strong reaction to news that the government would seek the help of the NPCSC to block Jimmy Lai from hiring Tim Owen after the government lost multiple appeals, and said it was understandable for the government to want Beijing to fix “a loophole” with the national security law.[24] In December 2022, Tong backtracked and said that the Hong Kong government does not need the NPCSC interpretation to handle the issue, saying it would be overkill.[25] Tong also said “Hong Kong has a lot of barristers holding foreign passports. Are we banning them from handling these cases as well?,” and also said that he hoped the NPCSC interpretation would not apply to Lai, but only to future cases.[25] After the NPCSC ruled that the Chief Executive could ban foreign lawyers, Tong said it was not a major issue as there were only a “miniscule” amount of cases which would be affected.[26] In February 2023, Tong wrote that China’s powers to interpret Hong Kong’s laws should be “respected” by Western countries.[27]
Read full entry at https://en.wikipedia.org/wiki/Ronny_Tong
The Piece
US consul general for Hong Kong and Macau Gregory May recently lamented that the latest interpretation of the Hong Kong national security law by the National People’s Congress Standing Committee could erode the independence of the city’s judiciary.
Such a view suggests May has not understood the Sino-British Joint Declaration or the Hong Kong Basic Law, which would be regrettable given his role as US envoy to Hong Kong. But more disconcerting is the fact that such a misunderstanding appears to be pervasive, at least as far as the West is concerned. So let’s try to clear this up once and for all.
First, the single most important fact of the Joint Declaration is China and the UK’s reaffirmation of Chinese sovereignty over Hong Kong. This is in fact; not in name only. It includes not only China’s right to administer Hong Kong, whether directly or indirectly, but also its right to defend and preserve its sovereignty.
Second, both the Joint Declaration and the Basic Law make it clear that Hong Kong’s “high degree of autonomy” is neither absolute nor complete but a relative autonomy enjoyed by a subject region of China. Its autonomy ends at the clear boundary of constitutional issues, and matters of defence and foreign relations.
It goes without saying that national security is not within Hong Kong’s high degree of autonomy. This is in line not only with the framework of “one country, two systems”, the Joint Declaration and the Basic Law, but also common sense.
Clearly, Hong Kong’s autonomy does not include a right to alienate itself from China under one country, two systems; that would contradict the very concept of Chinese sovereignty over Hong Kong.
Apart from the Joint Declaration and the Basic Law, May and others should also respect the Chinese constitutional order. The NPC Standing Committee, as the name suggests, is an arm of China’s legislature. Under the national constitution, the Standing Committee has the power and duty to interpret the constitution and all national laws, which include the Basic Law and the Hong Kong national security law.
Such power of interpretation, under the continental system, is a form of minor amendment to and elucidation of the national constitution and national laws. It is thus legislative and never judicial in nature.
Such interpretations only deal with constitutional or legislative intent and content and never the merits of any individual litigant. This is a function wholly separate and different from the courts under the common law system. No one who understands the Western concept of separation of powers can pretend not to understand this difference.