By Anson Chan
(Mrs Anson Chan was awarded the 2018 O'Connor Justice Prize and this is the full text of her speech delivered at the O'Connor Justice Prize Dinner on Saturday, 10th February, 2018.)
Justice O'Connor, Justice McGregor, Ambassador Barrett, Distinguished Guests, Ladies & Gentlemen,
I am deeply honoured to be awarded the 2018 O'Connor Justice Prize and to join the company of three most distinguished predecessors. The values embodied within the spirit of the Prize, namely advancement of the rule of law, justice and human rights, are particularly close to my heart, and it is a privilege to be associated with an award that celebrates Justice O'Connor's extraordinary legacy.
Reviewing her long and illustrious career I could not help being struck by the number of experiences we have shared, over the years. She was a trail blazer in so many settings: first woman ever to serve as State Senate Majority leader, first woman to be appointed Associate Justice of the Supreme Court. For my part, as the first woman to be appointed head of a government department, first woman policy secretary and finally first woman and ethnic Chinese to be appointed head of the Hong Kong civil service, I know just how much hard work and determination it takes to break through those glass ceilings and take your place, with confidence and conviction, within a still predominately male dominated professional environment.
While I did not face the challenge of starting out in my career working for no salary, when I joined the civil service, in 1962, women officers earned only 75% of their male colleagues and, once married, lost all entitlement to retirement and other benefits. Equal pay was finally achieved in the Hong Kong public service in 1975, but it was not until 1982 that I, and a group of like-minded senior women officers, succeeded in securing equality in entitlement to fringe benefits, such as housing and education allowances. I wonder how long it will be until women around the world, working in the private sector, can also be assured of being remunerated on equal terms with their male counterparts.
In my final role as Chief Secretary for Administration I had the privilege of transiting the transfer of sovereignty in 1997. Prior to the Handover, Hong Kong was governed as a British colony for over 150 years. Some aspects of that governance were far from perfect. However, in the years post World War II, the British Hong Kong Government evolved as an increasingly efficient, corruption free and caring administration, operating on a firm foundation of the rule of law and ultimately accountable to a democratically elected Parliament in London.
Since the transfer of sovereignty Hong Kong has been governed in accordance with the terms of the 1984 Sino-British Joint Declaration (the internationally binding treaty that paved the way for the transfer of sovereignty in 1997) and the over-arching concept of 'one country, two systems'. The provisions of our local constitution, the Basic Law, flow from the terms of the treaty and provide that:
• [Mainland China's] socialist system and policies shall not be practised in the Hong Kong Special Administrative Region (or SAR for short) and the previous capitalist system and way of life shall remain unchanged for 50 years;
• the Hong Kong SAR shall enjoy a high degree of autonomy except in matters of foreign affairs and defence, which will be the responsibility of the Central People's Government.
Importantly, Annexes to the Basic Law provide, amongst other things, for the election of our head of government (known as the Chief Executive) and all members of the legislature by full universal suffrage. In principle, these goals could have been achieved as early as 2007. When I retired from the civil service in 2001 it was not my initial intention to continue in public life. But, as time went by, I became increasingly disheartened because it was obvious that fully democratic elections were not going to be in place by 2007 – or any time soon.
In 2006 I decided to re-enter the fray and become a vocal advocate for universal suffrage. I set up a dedicated think tank. In 2007 a democratically elected seat unexpectedly became vacant in the legislature. I decided to run for election as an independent member. Participating in the rough and tumble of street campaigning was a humbling experience, which made winning in the face of strong competition from a Beijing backed candidate all the sweeter.
British administration established the fundamental importance of the rule of law and its preservation in post-Handover Hong Kong as the key to safe-guarding those things that make Hong Kong special. The rule of law is sacrosanct because, if it is lost, all the other rights and freedoms that it underpins are threatened: freedoms of speech and of the press and publication, freedom of the person and protection from arbitrary arrest, detention or imprisonment, freedom of association and assembly, freedom of conscience and religious belief, of academic teaching and research, the right to legal representation, etc. These rights and freedoms and more – none of which are practised in Mainland China - are spelled out clearly in the Basic Law.
It will be clear to this audience that the rule of law is not the same as rule by law. The rule of law is founded on the principle that all citizens are equal before the law; it is an essential prerequisite to the protection of the rights of the individual from the arbitrary or unlawful exercise of authority, whether by government or non-government entities. On the other hand, rule by law simply means that a given jurisdiction has some sort of legislative authority whose decisions constitute the highest level in a country's legal system, except for its constitution. Rule by law, if not carried out within the framework of the rule of law, can too easily be abused as a means of controlling citizens' behaviour, and directing it, by regulatory means, towards specific policy goals.
While the rule of law is still intact in terms of Hong Kong's judicial system, and is being vigorously defended by the local legal profession, there is worrying evidence that, under pressure from Beijing, the SAR Government is increasingly ruling by law, to suppress dissent and intimidate pro-democracy protesters. Worse still, is an increasing tendency to enact new laws in circumstances where existing laws do not appear to provide adequate scope for control of opinions or actions that the authorities do not like.
By way of example, concerned by the emergence of so-called 'localist' candidates for election to our legislature, some even going as far as to advocate independence for Hong Kong, the Hong Kong Administration introduced a new requirement in 2016 whereby, in addition to signing a declaration to uphold the Basic Law and pledge allegiance to the Hong Kong Special Administrative Region, candidates for the upcoming election must also declare their understanding that Hong Kong is an inalienable part of China.
While this requirement may not be entirely objectionable in itself, authority was then delegated to relatively junior election officials to determine – based on their personal and thus subjective judgement – whether the candidate is sincere and honest in his declaration.
Even more disturbing has been an increasing use by the Central Government authorities of the power of the Standing Committee of the National People's Congress (NPCSC) – the Mainland's de facto but essentially rubber stamp legislature - to interpret specific provisions in the Basic Law. This was exercised most recently in November 2016 when, in the wake of several newly democratically elected legislators protesting by making something of a mockery of the oath-taking process, the NPCSC intervened to mandate that oaths of office would be deemed invalid unless delivered "solemnly and sincerely".
This interpretation was particularly unwarranted, as the SAR Government had already brought a lawsuit against the legislators concerned and the matter was before the Hong Kong courts. The intervention of the NPCSC thus served to pre-empt the jurisdiction of the local courts and gravely undermine perceptions of the independence of the judicial process. Altogether six legislators have been removed from office for failing to take their oaths properly and the Government is suing two, who were initially allowed to take the oath a second time and take their seats, for recovery of the salary and expenses incurred before they were subsequently ejected.
Nominations have now closed for by-elections to fill four out of the six vacant seats to be held on 11 March. The Government has added salt to the wounds by refusing to validate a candidate from a political party that promotes the right of Hong Kong people to determine how best to preserve their values and lifestyle, but stops short of advocating independence. This decision looks very much like naked political screening of a pro-democracy candidate; it flies in the face not only of a number of Articles of the Basic Law, but also Article 1 of the Hong Kong Bill of Rights Ordinance which provides, among other things, that the right to stand for election shall be enjoyed without distinction of any kind, such as political or other opinion. Under close questioning in the legislature, our recently appointed new Secretary for Justice was forced to concede the hypocrisy of claiming that the decision to disbar the candidate in question was taken in accordance with the judgement of the electoral officer when the latter was clearly acting under instruction from the Justice Department.
In another development, key leaders of the 2014 Occupy Central/Umbrella Movement: Joshua Wong, Nathan Law and Alex Chow were convicted of unlawful assembly in the Magistrates Court in 2016. They were handed down non-custodial sentences, which all three served. However, Government's top legal authority, the Secretary for Justice, took the view that the sentences were too lenient and appealed for them to be reviewed. On appeal, all three were given jail sentences, clearly designed to deter others from protesting.
While it is beyond dispute that the three broke the law, having served the initial punishment meted out by the Magistrate, the decision of the Justice Secretary, who like the US Attorney General, is a political appointee, seems vindictive – designed not just to punish, but to blight the future political role of three gifted and passionate young men. All three were subsequently granted leave to appeal to the Hong Kong Court of Final Appeal. I am delighted to report that, on 5th February, the Court's Justices unanimously quashed their jail terms. This is a very welcome reassurance that the rule of law still prevails at the highest level of our Judiciary.
In a speech delivered at Georgetown University in March 2006, Justice O'Connor was forthright in expressing her concerns that some political attacks on the independence of the courts were posing a direct threat to the constitutional freedoms of Americans. Referencing autocracies in the developing world and former Communist countries, as examples of where interference with the judiciary might lead, she commented that "It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings."
In the light of the recent events in Hong Kong I have just described, these words have tremendous resonance. Once the impartiality of the system of prosecution is called into question, or certain politically motivated groupings seek to put pressure on and intimidate judges, any free society is perched precariously at the top of a very slippery slope.
To quote Justice O'Connor once again: "Statutes and constitutions do not protect judicial independence - people do.” I totally agree with her observation that ordinary people must be prepared to stand up and be counted in defence of the independence of the courts, particularly as an increasingly forceful and authoritarian leadership in Beijing is chipping away at Hong Kong's autonomy and interfering more and more in the routine policy-making and administration of the city.
It used to be thought that comments by senior Mainland officials (including no less a person than the then State Vice President Xi Jinping in 2008) - to the effect that there should be mutual understanding and support among the executive authorities, the legislature and the judiciary - were based on a misunderstanding of Hong Kong's constitutional position. As time has gone by, however, it has become clear that Beijing is now bent on moulding Hong Kong's governance to become more closely aligned with that of the Mainland, while still maintaining that 'one country, two systems' remains alive and well! The people of Hong Kong are effectively being told that, in the final analysis, the extent of autonomy granted to them under the Basic Law, will be for the Central Government to determine.
As an eternal optimist, I am always determined not to end on a pessimistic note. Hong Kong faces many challenges if we are to sustain the values and lifestyle that have made it one of world's most spectacular international cities. Today, I would like to assure all of you who have supported my selection for this most prestigious award, that the many of us in Hong Kong who believe passionately in the importance of democratic governance, and in the maintenance of the rule of law, will not give up the struggle to see this achieved.
I am so proud that those of us who - it must be said – now fall into the category of elder statesmen and women, can look with pride and confidence to the emergence of a new generation of activists who will not be cowed. We are all proud of China and the spectacular achievements she has made in the past 30 years; we are also proud of the contribution that Hong Kong has made, and continues to make to the development and continuing prosperity of the Mainland. It is crucial that our Central Government understands that, if Hong Kong is to continue to play this unique role, the rights and values that underpin 'one country, two systems' must not be diminished.
In a recent debate in the UK Parliament's House of Commons, the Minister of State at the Foreign and Commonwealth Office responsible for Asia, Mark Field MP, stated:
"Maintaining confidence in 'one country, two systems' and the rule of law is crucial for Hong Kong and China's own interests, including that city's role as a financial hub for the Belt and Road initiative. Hong Kong's economic system, which is uniquely trusted to bring huge new opportunities into China from all corners of the globe, will only flourish if the people enjoy the freedoms and safeguards that will ensure the promotion of their talents and enterprise."
The emergence of Xi Jinping as a new paramount leader of China, ranking alongside Mao Tse-tung and Deng Xiaoping, both in the panoply of Communist Party thought and determination to gather to himself total control over all aspects of governance - civil and military – is proving to have major implications not just for Hong Kong but for the world. In a climate of increasing authoritarianism and suppression of any form of dissent, it is possibly not surprising that the concept of 'one country, two systems' has become for Beijing - in the words of former Vice President Al Gore: "an inconvenient truth."
China should accept that ongoing support for Hong Kong's special position does not constitute 'interference' by the West in Chinese affairs. Beijing's adherence to 'one country, two systems' and the Basic Law is a fundamental litmus test of her respect for her obligations as a signatory to an internationally binding treaty; the international community is entitled to expect that her growing importance as a global super power is matched by a greater commitment to global values.
Hong Kong's many overseas friends, not least the United States, can play a key role by continuing to take an active interest in Hong Kong. In particular, they should continue to remind Beijing, in a non-confrontational way, that the world is still rightly interested and engaged in ensuring the continuing success and integrity of the concept of 'one country, two systems' for sound practical and economic reasons. As observed in the Hong Kong Human Rights and Democracy Act, a bill now before Congress sponsored by Senators Rubio, Cotton and Carden – and I quote – "The United States enjoys close economic, social and cultural ties with Hong Kong. According to the Department of State, 60,000 US citizens live in Hong Kong, and 1,400 US businesses have offices there. According to the office of the US Trade Representative, Hong Kong is the US 18th largest trade partner and 10th largest export market for US goods". In anybody's books, this amounts to a major strategic partnership that should be valued and supported for the mutual benefit it brings to both countries.
I am the product of a liberal education and upbringing. I have benefitted hugely from living and working in an open, pluralistic society rooted firmly in the rule of law and respect for human dignity. I am very conscious that this Prize is not just for me but for the people of Hong Kong and all that we stand for. For my part, I shall endeavour to prove worthy of the honour that you have done me.