Ten years on from its handover to the People’s Republic of China, is Hong Kong as free as it was in 1997? It is still a vibrant, commercial legal hub. But is it threatened?

The rule of law and the independence of the judiciary lie at the heart of Hong Kong’s high degree of autonomy and its entrenched rights and freedoms. This underlines “one country, two systems”, the promise made to Hong Kong by Britain and China in the 1984 Sino-British Declaration and enshrined by China in Hong Kong’s constitutional Basic Law.

Yet ten years after Hong Kong’s reunification with mainland China, there have been some stormy cross-cultural conflicts. To take one example, this month Wu Bangguo, who chairs the Chinese National People’s Congress (NPC) standing committee, sent shockwaves through Hong Kong when he said that its autonomies are not inherent but derive from Beijing. Never mind that they derive from the 1984 declaration that is registered with the United Nations. The judiciary, the executive and the legislature, he added, should not be separate as they are in Britain and America.

This follows three occasions since 1997 when the People’s Congress has been called upon to interpret the Basic Law. Each time it has seemed to encroach on Hong Kong’s expected autonomies.

Under that mini-constitution, the Hong Kong Court of Final Appeal would seek a legal interpretation from the People’s Congress if relations between the mainland and Hong Kong are affected. Chris Patten says that when he was Governor “there was no suggestion that anyone other than the Court of Final Appeal would ask for legal opinions from China”. But it has not been the court that has referred constitutional cases for decisions. After 1999 when, famously, Hong Kong’s Government itself went to China to seek an “interpretation” in a case affecting residence rights of thousands of Chinese, the court signalled a wider right for other parties — including China — to ask for interpretations. There was public furore. The veteran legislator, Martin Lee, QC, derided the court’s position as the “court of semi-final appeal”.

The widespread hope in legal circles was that there would be no more such interpretations. But in 2004, of its own initiative, the People’s Congress interpreted the Basic Law by adding conditions that ruled out universal suffrage before 2012. Bill Rammell, then a minister in the Foreign and Commonwealth Office, complained that China had appeared to breach the declaration that successive British prime ministers have promised to defend.

So how does the Hong Kong legal system now stand? Andrew Li Kwok-nang, the first Chief Justice of the Court of Final Appeal, strongly maintains that “we have made good progress” in establishing the court’s international common law reputation. Justice Li has just hosted a biennial meeting of Australasian chief justices — from Beijing to Canberra. Judicial independence was discussed.

Is Mr Wu questioning judicial independence? The Chief Justice says not. And he is emphatic that there has not been interference. “The independent judiciary is fundamental to the role of law and is a pillar of Hong Kong’s separate system. The exercise of judicial power is independent, free from interference from the executive, the legislature or anybody else.”

He understands the concerns about interpretations and says that these should be issued only “under very exceptional circumstances”. And he notes that his court does sometimes examine the declaration.

Without the normal democratic political controls on the executive, the role in Hong Kong of the judiciary and judicial review challenges have acquired heightened significance. Both judges and lawyers agree that judicial review has become a key protection. Justice Li says that the recent growth of this arm of the law is “one of the most striking features in my 30 years in the law. It has changed the legal landscape.” He attributes this to society’s complexities, to the Basic Law’s constitutional guarantees of human rights and to the education of a community, increasingly conscious of those rights.

Anna Wu, the lawyer and former legislator who chaired the Hong Kong Equal Opportunities Commission for four years after the handover, agrees that the heightened consciousness of wideranging anti-discrimination legislation passed just before the handover has been vital. Her commission won a landmark case that overturned a 25-year-old policy that gave boys easier access to top selective schools.

However, other lawyers are less sanguine. Mr Wu’s speech followed earlier assertions by the NPC’s top legal official, Qiao Xiaoyang, that Hong Kong courts should not undertake judicial review, and that the Hong Kong Legislative Council should not appoint select committees to investigate senior officials or allow motions of no confidence to be moved.

They argue that Beijing’s attitude to Hong Kong has incrementally become more controlling. Audrey Eu, SC, the former Bar chairman who now leads Hong Kong’s dynamic new Civic Party, remembers that in 1996 Mr Qiao told concerned Hong Kong lawyers: “Don’t worry. Any reference is to be done by the Court of Final Appeal.”

Why does it matter who interprets the law? The concern is that the People’s Congress may interpret commercial constitutional law or the freedoms guaranteed in the Basic Law by antithetical principles of the Chinese constitution. The Chief Justice is careful but exhorts a need for “vigilance”.

Meanwhile, Chief Justice Li has perhaps only seven years to go. Hong Kong’s freedoms are for the moment intact — but not invulnerable. The key question will be who replaces him.

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