To celebrate the 25th anniversary of the establishment of the Hong Kong Special Administration Region (HKSAR), the Department of Justice (DoJ) organised a series of key legal conferences to bring together distinguished speakers from different sectors to share their objective insights. It is an opportune time for us to review the valuable opinions expressed at the legal conferences of the Basic Law Legal Conference - “Stability to Prosperity” and National Security Law Legal Conference – “Thrive with security”. At the Basic Law legal conference, I was pleased to announce the official publication of DoJ’s sourcebook, “Basic Law: Selected Drafting Materials and Significant Cases”, with a view to fostering a proper understanding of the Basic Law by clearing up all the confusions.
“Stability to Prosperity”
Riding on the success of the legal forum “Back to Basics” in 2020, we held the second Basic Law legal conference – “Stability to Prosperity” on May 27. Chairperson of the Basic Law Committee of the HKSAR of the Standing Committee of the National People’s Congress, Mr Shen Chun-yao in his keynote speech elucidated the essence of “one country, two systems”, which is a well-considered and long-term policy of our country, whilst the Basic Law is a national law institutionalizing “one country, two systems”. He said that the Basic Law has been fully implemented in Hong Kong for 25 years. As to what will happen after another 25 years, Mr Shen quoted Mr Deng Xiaoping as stating that 50 years was “just a figure of speech”, and “for the first 50 years it cannot be changed, and after that, it would not be necessary to change”.
At the conference, Vice-chairperson of the Basic Law Committee of the HKSAR of the Standing Committee of the National People’s Congress Ms Maria Tam and I have a meaningful dialogue on the fundamental concept of the “one country, two systems” and the Basic Law. I explained that the power of the Standing Committee of the National People’s Congress (NPCSC) in interpreting the Basic Law in accordance with Article 158 is consistent with the constitutional order of the HKSAR. It is also in line with the power exercised by the NPCSC under the Constitution in interpreting laws and overseeing the enforcement of the Constitution, signifying that the National People’s Congress is the highest power organ in our country. Maria offered an explanation on the difference between judicial interpretation and legislative interpretation, adding that the power of NPCSC in interpreting the Basic Law does not affect judicial independence in Hong Kong whilst the power of final adjudication is still vested in the Court of Final Appeal of the HKSAR. The power of interpreting law is to ensure the consistency of laws across the country.
Former Permanent Judge of the Court of Final Appeal, Mr Justice Litton, expressed his views on the interpretation of the Basic Law in his thematic speech. He stressed that the Basic Law is a legal instrument adapted to the circumstances of Hong Kong under the principle of “one country, two systems”. When a real issue arises as to the meaning of a provision in the Basic Law, the inquiry should focus on the purpose of that provision. Citing the “Ding Rights” ( HKCFA 38) case as an example, Mr Justice Litton said that the Court of Final Appeal approached this issue by going into the historical background which gave rise to that provision. There was no citation of overseas cases and no invocation of European human rights jurisprudence.
Various speakers at the penal discussions explained how the joint force of the enactment of the National Security Law and the improvement of the electoral system, through NPC’s Decision and amendment to Annexes I and II to the Basic Law, safeguards our political security and has consolidated our basics by strengthening the premise of “one country”. They also shared their views on the way which the HKSAR thrives as an international financial centre under the safeguards provided for by the Basic Law.
One of the themes of the panel discussion is to explore why the common law is so important to Hong Kong’s position as an international commercial and financial centre. The speakers pointed out that the common law, while following case precedents, is flexible and can adapt to evolving circumstances through judge-made law. In addition, judicial independence is constitutionally guaranteed under the Basic Law. They all agreed that the common law is the bedrock of Hong Kong’s success. Non-Permanent Judge of the Court of Final Appeal, Mr Justice Patrick Chan, reaffirmed that judicial independence remains solid and robust by sharing his first-hand experience that he has never been interfered in his more than 30-year tenure serving as a judge, signifying that the independence of the Judiciary is constitutionally protected by the Basic Law.
Speakers from the business and financial sectors at the panel discussions also explored why Hong Kong has continued to attract investors from all over the world to do business in Hong Kong and make Hong Kong their home with which various provisions of the Basic Law act as constitutional safeguards to Hong Kong’s free economy. Renowned businessman Mr Allan Zeman in his conclusion took the view that the steadfast implementation of the Basic Law and the National Security Law has brought stability to our society, reinforcing confidence of the business sector in Hong Kong’s continued success and prosper.
“Thrive with security”
The National Security Law is the major turning point in the HKSAR’s transition from chaos to order, embarking on a new chapter towards “governance and prosperity”. On the second anniversary of the “5.28 Decision” (note), gvernment officials from the Mainland and the HKSAR, legal experts and academics gathered together to review the progress achieved by the National Security Law and explored frontier issues, as well as looked ahead the further refinement of the legal framework for safeguarding national security in the HKSAR.
Speakers shared the views that the HKSAR has a constitutional responsibility to complete the legislation of Article 23 of the Basic Law as soon as practicable in order to improve the legal system and enforcement mechanisms to safeguard the national security. The importance of maintaining a holistic view of national security was emphasized with political security on top of the priority. In additional to traditional security issues, the holistic view of national security also covers frontier key areas such as economic security, cultural security, cyber security, etc. They had an in-depth discussion on both domestic and overseas laws and practices to address the emerging security areas such as financial services sector and internet industry.
At the panel sessions, the speakers compared cases relating to the National Security Law and foreign cases on national security, and explored various topics such as the jury system and investigative powers in national security cases as well as ways to refine the legal framework on safeguarding national security.
The Financial Secretary in his closing remarks reiterated that Hong Kong remains an international financial centre as the figures speak for themselves. Since the implementation of the National Security Law, the amount of funds raised through initial public offerings in Hong Kong exceeded HK$650 billion, an increase of over 30% compared with the same period before the implementation; assets under management by our asset and wealth management industry amounted to around HK$34.9 trillion as at end-2020, registering a growth of 20% over the amount before the law was implemented; the total deposits in the Hong Kong banking system reached HK$15.3 trillion recently, an increase of about 11% compared with that prior to the implementation of the law. He concluded that the National Security Law provides safeguards to the implementation of “one country, two systems”, which is the cornerstone of the stability and prosperity of Hong Kong.
To ensure the steadfast implementation of the “one country, two systems, it must be borne in mind that “one country” is like the roots of a tree. For a tree to grow tall and luxuriant, its roots must run deep and strong. The HKSAR can only capitalize on its unique position under “two systems”, utilize strengths, and contribute to our country if an accurate understanding of the relationship between the Constitution and the Basic Law as well as a proper concept of national security is nurtured. You are most welcome to review the conferences to comprehend the proper concepts by visiting the Hong Kong Legal Hub website.
Note: The Decision of the NPC on Establishing and Improving the Legal System and Enforcement Mechanisms for the HKSAR to Safeguard National Security.
June 2, 2022