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Friday, March 05, 2021, 11:13
HK patriotic judges: Upholding Basic Law
By Grenville Cross
Friday, March 05, 2021, 11:13 By Grenville Cross

Patriotism is the glue which holds a country together. It embraces a love of nation and an affinity to other citizens. Patriots are loyal to their country’s interests, and seek to protect it from those who wish it harm. At the same time, patriotism is not blind, and it is always necessary for citizens to identify reforms which will improve things.

Patriotism should also avoid chauvinism, which is invariably counter-productive. If jingoism takes hold, as it did in the United States during the presidency of Donald Trump, it can produce an aggressive, insular and irrational foreign policy, which seeks its objectives through threats and coercion, without regard to the comity of nations. In Hong Kong, an appropriate balance has been achieved, including a recognition that the city’s success is inextricably tied to the progress of China as a whole.

The Basic Law stipulates that the Hong Kong SAR “is an inalienable part of the People’s Republic of China” (Art.1), and this could not be clearer. Although, coming directly under the Central People’s Government, it enjoys “a high degree of autonomy”, this in no way derogates from the duty of its citizens to honor the nation, and to promote its interests. By giving Hong Kong a privileged status, the central authorities placed great trust in it, and it is a source of sadness, if not shame, that some people chose to abuse that trust, by using the “one country, two systems” policy to try to undermine the nation. 

If a judicial officer ever so far forgot himself as to renege on his oath of office, by deciding cases on the basis of political partisanship rather than legal principle, mechanisms exist for his or her removal

Whereas some individuals, including elected officials, denounced the central authorities at every opportunity, imputing bad faith in all situations, others went further. They not only paralyzed the legislative process, in an attempt to blackmail the authorities, but resorted to violence to further their objectives, both on the streets and in the Legislative Council. They brought death and destruction to the city, making clear that they were prepared, if necessary, to destroy everything in pursuit of “a laam tsau” (“burn together”). While some made no secret of their desire to break up the nation, even the lawyers among them, in a shameful low, stooped to asking the US to impose sanctions on their home city and its officials, and to cancel its favorable trading status.

Quite clearly, those responsible for harming Hong Kong were deeply unpatriotic. They were willing to sacrifice the city in order to harm China, and thereby assist its foreign rivals. No self-respecting nation would tolerate this situation, and, in January, President Xi Jinping emphasized that “patriots” must always govern Hong Kong, given that this is fundamental to the city’s long-term stability and prosperity. This was no surprise, as patriotism has always been at the heart of the “one country, two systems” formula, although this was often disregarded by many of the city’s legislators, teachers and opinion formers.

As the late paramount leader, Deng Xiaoping, explained in 1984, “it must be required that patriots form the main body of administrators, that is, of the future government of the Hong Kong special region”. He defined a patriot as “one who respects the Chinese nation, sincerely supports the motherland’s resumption of sovereignty over Hong Kong, and wishes not to impair Hong Kong’s prosperity and stability”. If somebody satisfied those requirements, it was not necessary that “they be in favor of China’s socialist system; we only ask them to love the motherland and Hong Kong”. In other words, subject only to those basics, there was a future for everyone committed to the city’s well-being, whatever their actual persuasion. This was a remarkable gesture of goodwill, and the commitment of the central authorities to “one country, two systems”, has, despite the recent turmoil, endured.

On February 22, the Director of the Hong Kong and Macao Affairs Office, Xia Baolong, said the central government remains committed to the principle of “patriots governing Hong Kong”, and that there was no role in the city’s administration for anti-China elements and those who sought to cause chaos. Referring to key posts in the executive, legislative and judicial branches, as well as on statutory bodies, he emphasized that they must not be filled by “anyone who goes against China and disrupts Hong Kong”, which was another way of expressing Deng’s sentiment of “love China, love Hong Kong”.

Although the details of Beijing’s proposed reform of Hong Kong’s administrative system have yet to be fleshed out, Xia’s reference to the judiciary has attracted comment. Questions have arisen over whether foreign judges can satisfy his “true patriots” test, but this is a red herring. If there was a problem over foreign judges sitting in Hong Kong’s courts, China would not have legislated for their appointment under the Basic Law (Art.82 and 92). Any possible problems arising in this area are, moreover, addressed by the judicial oath itself, which all judges and magistrates are required to swear, and which formalizes their commitment to the city and, thereby, the nation.

Whereas the Basic Law requires judicial officers to undertake to uphold the Basic Law and “swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China” (Art.104), the judicial oath is fleshed out in the Oaths and Declarations Ordinance (Sect.17). A judicial officer, before assuming office, must also commit to “conscientiously, dutifully, in accordance with the law, honestly and with full integrity, safeguard the law and advance justice without fear or favor, self-interest or deceit”. The significance of the judicial oath should not be underestimated, as it provides an answer to those who fear a conflict between patriotism and judicial independence, and we have been here before.

On June 10, 2014, the central authorities issued a white paper, which dealt with the “one country, two systems” formula in Hong Kong, and stressed their comprehensive jurisdiction over the city. It was made plain that the people who govern Hong Kong “should above all be patriotic”, and that its officials, including judges, should love the country. Such observations, quite clearly, are not dissimilar to those now being made by Xia, but then, as now, they pose no threat to the judicial function. 

Indeed, when Lord (David) Neuberger, then, as now, a non-permanent judge of the Court of Final Appeal, and, until 2013, the President of the UK Supreme Court, was asked at the time if he was concerned by the white paper, he replied that judicial independence was not inconsistent with judicial patriotism. He explained that, having himself taken an oath of allegiance to the Hong Kong SAR, “the way in which judges demonstrate their patriotism is by an irrevocable and undiluted commitment to the rule of law”, and this is as true now as it was in 2014.

The Basic Law, moreover, recognizes that the courts “shall exercise judicial power independently, free from any interference” (Art.85), and this is comforting for everyone who values the rule of law. Since 1997, the central authorities have, despite setbacks, adhered unswervingly to the Basic Law, and those requiring reassurance can find it here. Although judicial officers sometimes make mistakes, these can usually be corrected by a higher court, and they certainly are not evidence of a lack of patriotism. If a judge acquits because he is not convinced by the evidence, or if a magistrate imposes a merciful sentence, this is not indicative, as has been suggested, of political bias or anti-China sentiment, but of an attempt, even if misguided, to achieve a just outcome. 

When, however, judicial officers do err, this is invariably explicable on the basis of ignorance of law and procedure, although incompetence occasionally plays a part. This, however, is a far cry from being unpatriotic, and it is unhelpful to suggest otherwise. But if a judicial officer ever so far forgot himself as to renege on his oath of office, by deciding cases on the basis of political partisanship rather than legal principle, mechanisms exist for his or her removal. However, since the Basic Law stipulates that judges “shall be chosen on the basis of their judicial and professional qualities” (Art.92), and are only appointed following “the recommendation of an independent commission” (Art.88), the chances of a bad egg being appointed are, at most, minimal.

Whatever administrative changes, therefore, are in the pipeline, there is no reason to suppose that they will imperil judicial independence. The way in which judges demonstrate their loyalty is by safeguarding the legal arrangements envisaged by the Basic Law, and by trying cases on the basis of the evidence adduced and the relevant law. Were this to change, it would undermine the rule of law, and nobody is in favor of that.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily.

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