The pillars of Hong Kong’s success can be stated briefly: the rule of law, clean and (quite) efficient Civil Service, free press, freedom of association, a capitalist system with low tax and minimal intervention by the government. This has all worked pretty well for us, including in the recent financial turmoil, in which we were relatively untouched, with unemployment rates still just around 5% and the property market strong.
The rule of law is one of the most critical elements in this, and so it was with some concern and suspicion that the recent announcement of the early retirement of the Chief Justice was met. Many suspected the black hand of Beijing in the retirement, with the possibility of a more supine judiciary in prospect. We hope not!
Below is Frank Ching’s take on it, from today’s South China Morning Post . Frank is a long-time reporter in the region, a fellow I’ve known since times back in the seventies in the Australian Embassy in Beijing, when we used to call on Frank on our “liaison visits” to Hong Kong. He might even remember me…. Go to Frank to find out what’s going on, was the story. Frank then was one of the many China Experts who used to divine the inner workings of the top echelon of the China leadership by srutinising provincial official movements, People’s Daily editorials, and China tea leaves. He’s much respected as a hard-nosed and insightful commentator of the regional scene, so it’s interesting that his take on the Chief Justice’s retirement is relatively benign. Read on…
The announcement by Chief Justice Andrew Li Kwok-nang that he will step down next August, three years before his scheduled retirement, poses a challenge in terms of a successor. But it was bound to come sooner or later, and there is no reason to think Hong Kong will not be up to it. Li had clearly given a great deal of thought to the issue of his replacement and, seeing a good many other senior judges approaching retirement age in the next few years, decided that his early retirement would be “conducive to the ordinary succession planning in the judiciary in the coming years”.
He could easily have remained in his job until December 2012 while grooming younger men and women of whom he personally approved and who, no doubt, would be high-calibre judges. Instead, he decided to step aside.
It is a great tribute to the chief justice that the overwhelming reaction from the government, legislature and legal profession is that it will be no easy task to fill his shoes.
Actually, despite the large number of judges approaching retirement age, the situation is far from dire. Judges can be allowed to stay on beyond the age of 65, and it is conceivable that Li’s successor could a contemporary rather than a younger person.
But the chief justice, for the sake of greater stability in the judiciary, was willing to accept a shorter term. That is a significant sacrifice even though, as he pointed out, he would have served for 13 years - not a short period.
His announcement was met with an outpouring of tributes from all quarters - surely a sign that he has succeeded in creating a Court of Final Appeal that is respected, while maintaining a judiciary in which the people of Hong Kong have confidence.
As a joint statement by the Hong Kong Law Society and the Bar Association declared: “We believe that the contribution of the Chief Justice to the rule of law in the HKSAR cannot be overstated.”
His appointment in 1997, when Hong Kong ceased to be a British colony, was one of the best decisions of Tung Chee-hwa, the first chief executive.
Li’s tenure was not without controversies, the biggest being the right of abode case in 1999, when the Court of Final Appeal declared that it had the authority to invalidate legislation enacted by the National People’s Congress - an erroneous, though bold, claim. The NPC then made it clear that the Hong Kong court had no such power.
Subsequently, the court took the opposite tack, declaring in another right of abode case that the NPC could give final interpretations of Basic Law provisions that dealt exclusively with issues within Hong Kong’s autonomy. That, too, was controversial.
These are issues that scholars, and perhaps future judges, may take up. However, in the decade since then, there has been no rocking of the boat and the court has created a solid reputation for itself. While both the executive and the legislative arms were politicised, the judiciary went about its business. Judicial decisions were not made to keep Beijing, or anyone else, happy.
And, as people looked at Hong Kong to see how it was faring under “one country, two systems”, they saw that the rule of law and independence of the judiciary had not been compromised.
Indeed, in April, the Commonwealth Law Conference was held in Hong Kong, the first time it had been hosted by a non-commonwealth jurisdiction. Li, in addressing the opening ceremony, said that convening the conference in Hong Kong “represents a recognition of the successful implementation of the principle of ‘one country, two systems’.”
He added: “The common-law system has continued to be maintained and indeed has continued to thrive in Hong Kong in accordance with the Basic Law, our mini constitution.”
With things going so well, perhaps it was at that time that Li decided to retire early.
Frank Ching, a Hong Kong-based writer and commentator, is the author of The Li Dynasty: Hong Kong Aristocrats. His book, Ancestors: 900 Years in the Life of a Chinese Family, has just been reissued in paperback.