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Beijing’s curbs on political rights in Hong Kong while ensuring rule of law for business is ‘unsustainable’, says top barrister

Beijing’s move to curb Hong Kong’s democratic freedoms while still trying to maintain confidence among businesses is unsustainable, according to Hong Kong’s top barrister.

Philip Dykes, chairman of the Hong Kong Bar Association, gave a talk on the rule of law. Photo: Sarah Graham/FCC Philip Dykes, chairman of the Hong Kong Bar Association, gave a talk on the rule of law. Photo: Sarah Graham/FCC

Philip Dykes, chairman of the Hong Kong Bar Association, also said he could not rule out a further interpretation of the Basic Law by the Standing Committee of the National People’s Congress (NPCSC), which he described as “the greatest threat to the rule of law in Hong Kong”.

Speaking at the March 5 club lunch, the newly-elected head of the Bar Association told members that he believed Hong Kong’s judges to be independent and could be relied upon to uphold the rule of law for years to come. But he called on “other decision makers in government – the administrators and the lawmakers” to be “ guided by the rule of law and realise that there are no preferred outcomes of judges and they should not be pressured into making decisions one way or the other”. Dykes was referring to the furore surrounding the long and drawn out legal process involving pro-democracy activists Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang.

In a Q&A session, Financial Times reporter Ben Bland asked Dykes whether Beijing’s move to heavily circumscribe Hong Kong’s political rights while maintaining confidence among businesses was sustainable, the barrister said: “Ultimately you can’t have one without the other. You can’t hold yourself out as being a system that subscribes to the rule of law and are particularly good at dealing with commercial and arbitration matters but not also accept the burdens that go with that which are dealing with the nitty gritty of political problems, protests, freedom of expression. You will be found out. It’s unsustainable.”

Dykes was also asked about Chinese president Xi Jinping’s move to consolidate his power by indefinitely extending his term as leader, days before the NPCSC is due to vote on it. Dykes said extended terms of power brought about by a change to the constitution “don’t usually end well” but would not be drawn on whether the move would affect Hong Kong’s rule of law.

On the matter of Beijing’s 2016 interpretation of the Basic Law in the case of the oath takers disqualified for not pledging allegiance to China, Dykes said he could not rule out future interventions by the Chinese government, particularly regarding the election eligibility of pro-democracy candidates. “One can easily foresee this bubbling up to become a legal issue,” he said.

Pro-democracy election success ‘a result of Beijing’s interpretation of Hong Kong Basic Law’

Dennis Kwok and Ronny Tong talked about the reverberations of Beijing's interpretation of the Basic Law at the FCC Dennis Kwok and Ronny Tong talked about the reverberations of Beijing’s interpretation of the Basic Law at the FCC

The record number of seats won by pro-democracy candidates in elections to select the committee that will choose Hong Kong’s next Chief Executive is one of the implications of Beijing’s recent controversial interpretation of the Basic Law, according to barrister and Legco member Dennis Kwok.

On the day after Hong Kong voters went to the polls, Kwok told a packed FCC club lunch that Beijing’s interference after two pro-independence candidates refused to swear allegiance to China following their election to the Legislative Council was an overt political move and warned the next battleground in this ‘far from over’ saga would be about whether others have breached their oaths.

Kwok joined former chairman of the HK Bar Association and Legco member Ronny Tong to discuss the reverberations of Beijing’s interpretation of the Basic Law – Hong Kong’s mini-constitution – at the club lunch on December 12. Tong kicked off the talk by outlining how Beijing’s interpretation merely reinforced what was already written in local law about what an oath meant and how anyone who makes a false oath or acts in breach of it should be dealt with.

tongmainHowever, he added that what the rare interpretation did “was reinforce the perception that Beijing is not trustworthy of our judicial system or the integrity of our judges”.

Kwok, who organised a protest of more than a thousand lawyers after Beijing stepped in following the oath controversy in October, criticised pro-independence ‘Youngspiration’ candidates Sixtus “Baggio” Leung Chung-hang and Yau Wai-ching for their ‘irresponsible and childish’ actions when, during their oath-taking ceremony, they refused to swear allegiance to China, used bad language and sported banners that read “Hong Kong is Not China”.  They were later disqualified from taking office.

Kwok added that Beijing’s actions had divided a society “that’s already polarised”.

Both Kwok and Tong agreed that the pair’s behaviour had presented an opportunity for Beijing to step in and flex its political muscles, with Tong adding that he thought the Chinese government had been genuinely afraid that its Hong Kong counterpart would lose a court case requested by Chief Executive CY Leung in which he directed judges to disqualify them.

Dennis Kwok talks about Beijing's recent interpretation of Hong Kong's Basic Law at the FCC Dennis Kwok talks about Beijing’s recent interpretation of Hong Kong’s Basic Law at the FCC

The club lunch talk, entitled The Implications of Beijing’s Recent Interpretation of Hong Kong’s Basic Law, came just days after Leung announced he would not stand for a second term as Chief Executive. In a Q&A after the talk, Tong and Kwok were asked their thoughts on this latest development.

“I was flabbergasted,” said Tong: “I thought it’s just too good to be true.”

Kwok added: “I was happy for about five minutes, then I thought about all the other candidates who would come out.”

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