Cambridge, UK; New York: Cambridge University Press, 2014. lv, 681 pp. (Figures, tables, B&W photos.) US$120.00, cloth. ISBN 978-1-107-01121-2.
In the People’s Republic of China, the intermingling of law and politics has long been a central feature of Communist Party policy on judicial institutions. In many ways, the story of legal reform over the past several decades in China has involved a tension between ideals of the rule of law and the practical imperatives of Party leadership. This tension has come into particularly sharp focus with the re-assertion of PRC sovereignty over Hong Kong, where common-law traditions of the Hong Kong courts have come into conflict with the “political-legal” policies of the Communist Party of China. The magisterial treatise under review reflects the complexity of this interaction, as played out at the Hong Kong Court of Final Appeal (HKCFA).
Commemorating the retirement of Chief Justice Andrew Li Kwok Nang, Professors Yash Ghai and Simon Young have compiled a wide-ranging and analytically rich compendium of essays examining the background, context and practice of the HKCFA. In keeping with much socio-legal scholarship on courts, questions of institutional history and context are presented at the beginning of this treatise. Yash Ghai’s masterful treatment of the autonomy of courts and law in comparative perspective offers a useful opening. The PRC has made no secret of its intent to ensure that Party policies and PRC sovereignty will take precedence over judicial and legal autonomy, and as Professor Ghai points out this has affected the practice of the HKCFA. In many ways the HKCFA is caught between two worlds, that informed by the political imperatives of the National People’s Congress Standing Committee (NPCSC) and the world of the common law. The NPCSC perspective, grounded in provisions in the PRC Constitution that vest the NPCSC with exclusive jurisdiction to interpret the meaning of legislation, is presented by Dalian Maritime University Professor Nancy Xiaonan Yang, who explains the formal jurisdictional limits on the authority of the HKCFA. The perspective of the common law is addressed by Sydney barrister Oliver Jones, who examines the legacy of the Privy Council, the final appeals court for Hong Kong prior to the 1997 handover. These introductory chapters about autonomy, the power of the NPCSC and the continuing legacy of the Privy Council provide an essential context for understanding the current role and future potential of the HKCFA.
Subsequent essays on the practice of the HKCFA examine institutional questions of establishment, appeals practice, jurisdiction and procedure, and the views of conventional and human rights practitioners. These particular chapters, authored by eminent scholars and experienced practitioners, provide a comprehensive overview of the operational conditions of the HKCFA. Through each of these discussions runs a theme distinguishing between private and public law, and related questions about access to justice and judicial independence. The observers of the HKCFA’s institutional record tend to suggest that it accords with widely accepted standards for handling appeals on conventional private and commercial law matters, but that the bulk of the HKCFA’s work has been on public law and human rights questions where political interference from China or the desire to avoid such interference has affected judicial outcomes. These distinctions are also evident in the subsequent section on judges and judging. While noting the distinguished background and eminent integrity of the retiring Chief Justice Andrew Li, analyses of HKCFA judges (including foreign judges appointed to the HKCFA under Hong Kong’s Basic Law) are particularly attuned to the dilemmas of rendering appeals judgments on political questions that might draw the attention and resistance of Beijing.
The distinction between public and private law and questions about China’s political imperatives are also evident in the chapters included in an expansive section on jurisprudence. In many areas, such as administrative law, criminal law, commercial and land law, torts and civil procedure, the jurisprudence of the HKCFA appears to operate relatively smoothly. Different issues arise however in areas such as interpretation of law and human rights where the authority of the HKCFA tends to be clouded by the overarching authority of the NPCSC. Noting the importance of the Ng Ka Ling case on the right of abode, which resulted in a declaration by the NPCSC in 1999 sharply curtailing the jurisdiction of the HKCFA over matters of concern to China, analysts of the HKCFA’s Basic Law jurisprudence and human rights appellate practice express concern over the HKCFA’s long-term autonomy. The book closes with three important but somewhat incongruous chapters examining perspectives from beyond Hong Kong, notably the impact of HKCFA jurisprudence elsewhere (growing but limited), the example of Macau (much more diminished in Hong Kong due to little public or governmental resistance to PRC authority) and the role of the foreign judges appointed to the HKCFA under the Hong Kong Basic Law (limited capacity to steer decisions toward international rule of law standards).
This compendium provides an invaluable overview of the performance and prospects of the HKCFA. Established in the context of a handover of colonial territory, HKCFA operates between the two worlds of China’s “political-legal” principles and the common law tradition. Relying on principles and traditions of the common law, the HKCFA has attempted to build an autonomous jurisprudence of its own. But the Hong Kong’s top court still remains embedded in an institutional arrangement over which the political authority of the PRC reigns supreme. This returns us to the fundamental questions raised at the beginning of the volume as to what might be the conditions and limits on autonomy of judicial decision-making in Hong Kong after the handover to the PRC. To the extent that the Hong Kong Court of Final Appeal represents the “best case” for judicial independence under PRC leadership, the prospects seem dim indeed. This masterful volume is an essential read for all who are interested in the development of law in Hong Kong and the PRC and questions about judicial economy generally.
Pitman B. Potter
The University of British Columbia, Vancouver, Canada
pp. 296-298