This paper argues that the nature of Hong Kong’s constitutional and political systems has changed from that of Semi-Democracy to Semi-Authoritarianism. The presentation will examine the reasons behind the change and its implications on the future of “One Country, Two Systems” in Hong Kong.
HK’s judges and lawyers have often been hailed as a source of resilience against encroachments on the rule of law. I argue this “idolized” expectation has been misplaced. Actions taken by Beijing have constrained or been perceived as valid constraints on the courts. The maturing of the Mainland legal services market, amongst other things, led to frequent socialization between lawyers of the two jurisdictions and increasing interactions between Beijing and Hong Kong’s legal professional bodies for promoting the latter’s involvement in the former’s economic initiatives. The judiciary’s traditional self-limiting outlook is likely to engender adjudicative deference in security matters. The traditional symbiotic relationship between the Bench and the Bar in defence of judicial independence is seen to be a defence of the judges–the creation of this perception brought reputational costs-particularly dear in current HK, where voices are fragmented into the reticent, progressive and radical.
This paper presents comparative perspectives from Macau regarding sources of resilience in the Chinese Special Administrative Regions (SARs). It will signal what in my view are commonalities between the two SARs, the main differences as well as the paths of evolution verified on both sides of the Pearl River estuary autonomic territorial entities. Some aspects present themselves as more relevant, e.g. the Rule of Law, the courts, constitutional review, Art 23 of the Basic Laws and Interpretation of such Laws. Diverging from early trends, both SARs are now on a path of convergence in which HK has regressed whereas Macau has progressed modestly in some areas that, by the end of the day, in its point of contact, suggest apprehensions and worries regarding the structural principles, e.g. of a high degree of autonomy, the Rule of Law.
A perennial problem in the “One Country, Two Systems” model is the demarcation between “one country” and “two systems”. Balancing security with liberty is particularly challenging in HK when security is approached from a national legal-political system that does not share HK’s values on the rule of law, judicial independence, the court’s role, and the primacy of personal liberty. This paper proposes ways in which courts and related institutions can be strengthened to enable them to perform the crucial role of striking this balance. Principles for rationalizing Beijing’s exercise of the final interpretative power over the Basic Law are proposed. I also argue that the concept of act of state should be narrowly defined. Moreover, there are conflicts in the roles of the Secretary for Justice as simultaneously a politically accountable minister and the guardian of public interests; decisions on prosecution/ civil litigation should be left to independent officers.