What Constitutes Rule of Law? Hong Kong as Live Case Study
By Ling Yee Wong
1. Introduction
On 30th June, the People’s Republic of China (PRC) enacted national security laws in Hong Kong.[1] These national security laws came as a result of a year of sometimes violent but mostly peaceful protests in Hong Kong. The protests aimed to stop Hong Kong from passing a law to allow criminal extradition to the PRC, but morphed into a movement against police brutality (with eerie similarity to Black Lives Matter movement) and PRC interference into Hong Kong’s autonomy.[2] A fringe element also called for Hong Kong independence[3] or foreign sanctions against the PRC in order to preserve Hong Kong’s autonomy.[4]
As a result of the national security laws, Foreign Affairs and Trade Minister Winston Peters announced on 27th July that New Zealand will suspend its extradition treaty with Hong Kong.[5] In particular, the Minister claimed that the national security laws have “eroded rule-of-law principles” in Hong Kong. The suspension is due to end on 31st August.[6] This article looks at how reasonable the suspension is from a rule of law and constitutional law perspective — Did the national security laws finally “break” the rule of law in Hong Kong?
2. Constitution of Hong Kong – The Basic Law
We first need to look at what system of government Hong Kong has, and how the rule of law is part of that system.
Before 1997, Hong Kong was a colony of the United Kingdom (UK) and the UK imposed a form of Westminster government. The system in Hong Kong differed from the Westminster system in UK in one key respect: it was not democratic. The apex of Hong Kong’s executive branch was a Governor appointed by the UK, while members of the legislative branch were appointed by the Governor.[7] The legislative branch became partially representative since 1985[8] but was never fully representative. The judiciary, however, operated under the same common law system and hierarchy as in England, with a final right of appeal to the UK Privy Council.[9] In particular, the civil liberties and rights of citizens in the common law of England applied in Hong Kong. There is no question that the rule of law prevailed under British rule.
After 1997, Hong Kong became part of the PRC and the Basic Law came into effect.[10] Article 5 of the Basic Law is generally interpreted as guaranteeing that Hong Kong will be autonomous and can retain the broadly Westminster system and the common law system for at least 50 years. The Sino-British Joint Declaration on the question of Hong Kong,[11] which both the PRC and the UK signed and deposited to the United Nations as an international treaty on 12th June 1985,[12] further reinforced this point.
The Basic Law itself also explicitly proscribed a broadly Westminster system of government for Hong Kong.[13] However, just like under British rule, democracy in Hong Kong is optional under the Basic Law, with no requirement that the executive branch or legislative branch be democratically elected, as stated in the Basic Law Articles 45 and 68 respectively. In general, according to Article 160 of the Basic Law, all previous laws of Hong Kong before 1997 will remain laws of Hong Kong after the Basic Law comes into effect, except any that contravene the Basic Law. Nonetheless, unlike in the common law, many fundamental freedoms and rights are explicitly protected under Articles 24-42.
There are, however, important differences between Hong Kong’s system of government and the Westminster system. The Basic Law itself is an assertion that Hong Kong has a constitution-supreme form of government, not a parliament-supreme form of government. For example, Articles 49 and 50 of the Basic Law invested in the head of the executive branch the power to not enact law passed by the legislature. Another way to look at Hong Kong’s government is to see it as a Westminster “executive paradise”[14], except with even less democratic checks and balances.
The Basic Law contained another stinger in the tail for the constitution in Hong Kong. Article 158 of the Basic Law invested in the judiciary of Hong Kong the power to interpret the Basic Law, but ultimately the power of interpretation resides in the Standing Committee of the National People’s Congress in PRC. As noted in the 2019 New Zealand Court of Appeal case Kim v Minister of Justice,[15] the Standing Committee is not a judicial body, unlike the Privy Council. It is a political body. Similarly, the Standing Committee has the power to amend the Basic Law in Article 159. The national security laws in question are exactly added by the Standing Committee into the Basic Law, and a further departure from the Westminster system.
3. Important Features of the National Security Laws
In general, the National Security Laws (NSL) proscribed the administration of NSL, the scope of NSL and the penalty for offences.[16] They outlaw secession, subversion, and terrorism as criminal offences (i.e. conviction requiring guilty mind and guilty act), with life imprisonment as the maximum penalty.
Importantly, secession, subversion, and terrorism are not defined or given explicit interpretations. So under the Basic Law, Hong Kong’s judiciary will have the power to convict and to interpret what those terms mean, with a proviso that the PRC will have the final say on the interpretation on those terms.
Terrorism in particular is constructed very broadly. Under Article 24, sabotaging means of transport or utilities can count as acts of terrorism, without requiring such acts to be serious. Other things being equal, a charge of vandalism is easier to succeed in court than terrorism under Article 24 because a vandalism case needs to prove the accused possessed one mental element — intent to damage — while a terrorism case needs to prove intent to damage in order to promote political agenda.
By comparison, terrorism is defined more strictly in Hong Kong than in New Zealand. Under Article 24, terrorism is an offence that aims to promote political agenda only, whereas terrorism in New Zealand, as defined in the Terrorism Suppression Act 2002 s 5(2), is an offence that aims to promote ideological, religious or political agenda.
In addition, NSL Article 4 explicitly mentions that freedom of speech, press, assembly, and association enshrined in the Basic Law are also protected under NSL. This naturally will conflict with the substantive elements of the NSL. For example, is advocacy for Hong Kong independence protected under freedom of speech in the Basic Law, or is it a crime of secession under NSL? Because NSL is bolted onto the Basic Law, one part of the Basic Law pulls in one direction, while another part of the Basic Law, i.e. NSL, pulls in the exact opposition direction. This seems like the domain of the judiciary to decide how to interpret and resolve the tension in the Basic Laws on a case-by-case basis, especially in a common law system. Nonetheless, NSL Article 44 specifies that the judges hearing cases of NSL are appointed by the head of the executive branch, not independently selected by the judiciary itself.
By comparison with New Zealand, before 2007 the Crimes Act 1961 outlawed sedition in ss 81-85 (which is similar in purpose to NSL in Hong Kong.) However, the Law Commission recommended sedition sections to be removed from the Crimes Act because it stifles freedom of speech,[17] and New Zealand Parliament duly repealed them from the Crimes Act.[18]
While NSL generally proscribed Hong Kong’s local prosecution and enforcement of NSL, Article 55 allows agents of the PRC to take over cases prosecuted under NSL if the cases are complex, serious or there is immediate threat to national security. This in effect partially implemented Hong Kong extradition to the PRC that the protesters fought against over the last year. Another point of notoriety is that Article 36 deems that any person outside Hong Kong who causes secession, subversion or terrorism in Hong Kong will be committing a crime in Hong Kong. In other words, NSL has extraterritorial power to charge someone outside Hong Kong, who had never set foot in Hong Kong but nonetheless caused secession, subversion or terrorism in Hong Kong. This allowed the Hong Kong government to issue a warrant of arrest under NSL for US citizen and resident Samuel Chu.[19]
In short, NSL bring Hong Kong into further divergence from the pre-1997 Westminster form of government.
4. Does the Rule of Law Still Exist in Hong Kong?
Starting from the basic assumption that the rule of law existed in Hong Kong under the UK, Hong Kong’s constitution has evolved with the adoption of the Basic Law and now NSL. Are the national security laws the final straw that broke the camel’s back and destroyed the rule of law in Hong Kong?
4.1 The Rule of Law Defined
One of the most popular ideas underlying the rule of law is that the rule of law is about equality before the law and that no one is above the law. The executive must still obey the law, and its power derives from the law, not from possessing coercive power of the state. The rule of law is contrasted with “rule by men”. Rule by men means powerful people govern by whims, not laws, and that even if there are laws they do not necessarily apply to people in power. Jeremy Waldron however criticised this distinction between rule of law and rule by men (attributable to A. V. Dicey) as naive, because this idea does not fit with the political reality of powerful parliamentarians making laws, even in a democracy.[20]
Waldron argues that there are three components to the rule of law: formal, procedural, and substantive aspects. Where there is the rule of law, the legal system must possess certain procedures on how to apply the laws, and certain substantive ideals which motivate the system of laws. Lon Fuller listed eight formal aspects individual laws must possess in the rule of law: generality; publicity; prospectivity (i.e. not retrospective); intelligibility; consistency; practicability; stability; and congruence.[21] Waldron states the generally accepted procedural aspects to the rule of law as follows:[22]
a hearing by an impartial and independent tribunal that is required to administer existing legal norms on the basis of the formal presentation of evidence and argument;
a right to representation by counsel at such a hearing;
a right to be present, to confront and question witnesses, and to make legal argument about the bearing of the evidence and the various legal norms relevant to the case; and
a right to hear reasons from the tribunal when it reaches its decision, which are responsive to the evidence and arguments presented before it.
The substantive aspect of laws under the rule of law is the idea that laws are to preserve justice and liberty. As Waldron points out, even legal positivists such as HLA Hart acknowledged justice as underlying motivation in the rule of law.[23]
4.2 The Rule of Law in Hong Kong
Now we have a benchmark to measure the rule of law, the question is: how did the national security laws change the rule of law in Hong Kong?
NSL themselves satisfied most of the eight formal aspects required by Fuller. Interestingly, the extraterritoriality of NSL is against common law presumption.[24] Nonetheless, Fuller did not considered extraterritoriality a disqualifying formal feature of a law under the rule of law. There is, however, a question of consistency within NSL, especially with freedom of speech and anti-secession/anti-subversion clauses pulling in opposite directions as stated above. It is not clear what kind of constitutional interpretation approach the Hong Kong judiciary will adopt when dealing with this tension. Will it adopt the Canadian or Australian approach, closer to the common law and Westminster government? Or will it adopt the American approach, with the United States Constitution and government a class on its own? How will it adapt to local context in Hong Kong? So far, because no case has been brought to trial, it is too early to say if the judiciary will interpret NSL as trumping over articles in Basic Law protecting various freedoms.
In terms of the procedural fairness of NSL, the most important point of contention is that NSL allow the executive branch to pick and choose judges to try national security offences. This somewhat undermines the impartiality and independence of the judiciary. However, the judge must already have been part of the judiciary and the executive branch in Hong Kong cannot parachute someone from outside the Hong Kong judiciary to judge national security cases. Again, because no case has been brought to trial, it is an open question whether those hand-picked judges will still carry out their duties independently and impartially.
In terms of the substantive commitment of the NSL to justice and liberty, this is a question many countries and regions have to grapple with when it comes to passing national security laws. For example, the executive and legislative branches of government in the United States have a long history of curtailing freedom of expression for the sake of national security, especially during Cold War era against communism,[25] up to the current War on Terror. The United States Supreme Court has long grappled with protecting national security versus individual freedom, with a chequered history in protecting freedom.[26] The Commission for Human Rights of the Council of Europe also noted a trend among European nations of suppressing freedom of expression in favour of national security, for example in the fight against ISIS.[27] The NSL seem to be designed to stifle the protest movement and limit freedom of speech and assembly exercised in Hong Kong, while the text of the laws themselves protect those very freedoms.
The proof of the pudding must be in the eating. That means how committed to justice and liberty the legal system of Hong Kong is after the passing of NSL depends on how Hong Kong’s executive and the judiciary react. If the executive branch indiscriminately charges people with national security offences, and if the judiciary acquiesces and makes no attempt to grapple with the tension between protecting national security and protecting freedom, then NSL eroded the substantive justice and liberty commitment to rule of law in Hong Kong. It also depends on how often the PRC uses its trump card to directly deal with national security offences in Hong Kong, bypassing the rule of law in Hong Kong. Because there is no case being tried under NSL, it is unclear how much the Hong Kong judiciary is committed to liberty and justice and will make a good faith attempt to limit the scope of NSL. Indeed, singular cases of judicial deference to executive like Liversidge v Anderson[28] arguably did not undermine the rule of law in UK, so it is too early to judge the judiciary in Hong Kong.
This conclusion is also consistent with the approach of UK Supreme Court, whereby normally two members of the UK Supreme Court sit on the bench of Hong Kong’s Court of Final Appeal. Specifically, Lord Reed, President of the UK Supreme Court, is adopting a wait-and-see approach on whether the rule of law in Hong Kong is being undermined by NSL, while simultaneously advocating for the independence of Hong Kong’s judiciary and the rule of law.[29]
At this point, the executive branch in Hong Kong has already used NSL to charge two prominent persons: Jimmy Lai,[30] the seasoned owner of a newspaper critical of Hong Kong government, and Agnes Chow,[31] a young political activist prominent in protest movements in Hong Kong since 2014. There is unofficial report suggesting that a willingness amongst the judiciary to uphold the rule of law in Hong Kong, regardless of political pressure from the PRC.[32] Ultimately, however, it may be out of the hands of the judiciary of Hong Kong, with the PRC potentially taking over their cases to try them in the PRC.
5. Conclusion
The rule of law is orthogonal to democracy. That is why the rule of law prevailed in Hong Kong as a British colony, as explained in Section 2. It follows from the conception of the rule of law, as summarised by Waldron stated in Section 4.1, that it has no obvious place for democracy or representative government. In the absence of democracy in Hong Kong, the rule of law arguably can still strive there.
Indeed, as argued in Section 4.2, the newly introduced national security laws in Hong Kong as summarised in Section 3 do not obviously undermine the rule of law in Hong Kong. Currently there is not enough evidence to show that the new laws directly eroded the rule of law. This conclusion is inconsistent with the Minister of Foreign Affair’s claim. (An obvious reply is that the Minister did not suspend New Zealand’s extradition arrangement with Hong Kong simply because of concerns for the rule of law in Hong Kong, but as a broader diplomatic gesture aimed at the PRC.)
Still, Hong Kong shows how the rule of law can be indirectly undermined through executive overzealousness in using the law at its disposal. The legislature can draft laws that satisfied well understood formal principles in the rule of law, and the judiciary can defend the procedural integrity of the legal system and preserve substantive ideas behind the rule of law, i.e. justice and liberty. However, as long as the executive persecutes citizens, the law will become a de facto instrument of oppression and not of justice and liberty. Indeed, executive misconduct in Hong Kong is a long-standing grievance, especially with police brutality in the past year. Hong Kong shows that the rule of law in reality requires whole-of-government commitment to the norms of the rule of law.
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[1] “Promulgation of National Law 2020” (30 June 2020) The Government of the Hong Kong Special Administrative Region Gazette L.N. 136 of 2020.
[2] See, for example, Max Pendleton “As Democracy Crumbles: Why Hong Kong is Still Protesting One Year Later” (22 May 2020) Equal Justice Project <https://www.equaljusticeproject.co.nz/articles/as-democracy-crumbles-why-hong-kong-is-still-protesting-one-year-later2020>.
[3] See for example Lewis Lau Yiu-man “Hong Kong and the Independence Movement That Doesn’t Know Itself” The New York Times (online edition, 27 September 2019).
[4] See for example Helen Warrell “Hong Kong activist Nathan Law calls on west to ‘hold China accountable’” Financial Times (online edition, 15 July 2020).
[5] Audrey Young and Jason Walls “NZ suspends extradition treaty with Hong Kong - Ardern says new law not consistent with 'NZ's principles'” The New Zealand Herald (online edition, Auckland, 28 July 2020).
[6] Extradition (Hong Kong Special Administrative Region of the People’s Republic of China) Order Revocation Order 2020, cl 4.
[7] The Legislative Council Commission “Legislative Council Then and Now: A Journey to the New Complex” (2012) Legislative Council of the Hong Kong Special Administrative Region <https://www.legco.gov.hk/general/chinese/sec/ebook/files/mobile/index.html#12>.
[8] The Legislative Council Commission “Legislative Council Then and Now: A Journey to the New Complex” (2012) Legislative Council of the Hong Kong Special Administrative Region <https://www.legco.gov.hk/general/chinese/sec/ebook/files/mobile/index.html#43>.
[9] “A Brief overview of the Court of Final Appeal” (28 February 2017) Hong Kong Court of Final Appeal <https://www.hkcfa.hk/en/about/overview/index.html>.
[10] For an accessible English version the Basic Law, see the online version given by: Basic Law Promotion Steering Committee “Full text of the Constitution and the Basic Law” (17 July 2020) The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China <https://www.basiclaw.gov.hk/en/basiclawtext/index.html>.
[11] Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong 1399 UNTS 33 (signed 19 December 1984, entered into force 30 June 1985).
[12] Treaties Series UN Doc Volume 1399 1985 I. Nos 23389-23396 1994 at 33.
[13] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, Articles 43-104.
[14] “Executive paradise” is a term coined in Leslie Zines Constitutional Change in the Commonwealth (Cambridge University Press, Cambridge, 1991) at 47.
[15] Kim v Minister of Justice of New Zealand [2019] NZCA 209 [2019] 3 NZLR 173 at [190].
[16] See note 1. For an accessible English translation of the National Security Laws, see “In full: Official English translation of the Hong Kong national security law” (1 July 2020) Hong Kong Free Press <https://hongkongfp.com/2020/07/01/in-full-english-translation-of-the-hong-kong-national-security-law/>.
[17] The Law Commission “Law Commission Recommends Abolition Of Seditious Offences” (press release, 4 May 2007).
[18] Via Crimes (Repeal of Seditious Offences) Amendment Act 2007.
[19] Helen Regan and Angus Watson “Hong Kong issues arrest warrants for six overseas democracy activists including US citizen, state media reports” (1 August 2020) CNN <https://edition.cnn.com/2020/08/01/china/hong-kong-activists-arrest-warrant-intl-hnk/index.html>.
[20] Jeremy Waldron “The Rule of Law” (Summer 2020) Stanford Encyclopedia of Philosophy <https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/> at section 3.4.
[21] Lon Fuller The Morality of Law (revised ed, Yale University Press, New Haven, 1969) at 33-94.
[22] Waldron, above n 20, at section 5.2.
[23] Waldron, at section 5.3.
[24] See Stephen Penk and Mary-Rose Russell New Zealand Law: Foundations and Method (Thomson Reuters, Wellington, 2018) at 295-296.
[25] “Maintenance of National Security and the First Amendment” (1992) Legal Information Institute, Cornell Law School <https://www.law.cornell.edu/constitution-conan/amendment-1/maintenance-of-national-security-and-the-first-amendment>.
[26] See for example John Ip “The Supreme Court and House of Lords in the War on Terror: Inter Arma Silent Leges?” (2010) 19 (1) Mich.St.J.Int'l L. 1.
[27] “Misuse of anti-terror legislation threatens freedom of expression” (4 December 2018) Commission for Human Rights of Council of Europe <https://www.coe.int/en/web/commissioner/-/misuse-of-anti-terror-legislation-threatens-freedom-of-expression>.
[28] Liversidge v Anderson [1942] AC 206 (HL).
[29] Lord Reed “Role of UK judges on the Hong Kong Court of Final Appeal” (17 July 2020) The Supreme Court <https://www.supremecourt.uk/news/role-of-uk-judges-on-the-hong-kong-court-of-final-appeal.html>.
[30] “Jimmy Lai: Arrested Hong Kong tycoon tells protesters to be ‘careful’” (12 August 2020) BBC News <https://www.bbc.com/news/world-asia-china-53748285>.
[31] “Agnes Chow: Hong Kong activist hailed as the ‘real Mulan’” (12 August 2020) BBC News <https://www.bbc.com/news/world-asia-china-53746867>.
[32] Greg Torode and James Pomfret “Hong Kong judges battle Beijing over rule of law as pandemic chills protests” (14 April 2020) Reuters <https://www.reuters.com/investigates/special-report/hongkong-politics-judiciary/>.