Hong Kong’s judiciary
NPCSC acts with the Basic Law, a bold claim that provoked serious controversy over the relationship between Hong Kong’s judiciary and the Central People’s Government. The CFA subsequently issued an unprecedented clarification in Ng Ka Ling (No 2), stating that it ‘cannot question the authority of the NPCSC to do any act in accordance with provisions of the Basic Law.’ Proponents of the current arrangement, including Albert Chen (2022), argue that the constitutional design confers on Hong Kong ‘extensive powers’ covering ‘almost all policy domains with the exception of defence and foreign affairs,’ and that the NPCSC’s interpretive interventions have been restrained, exercised only six times since 1997. This restraint demonstrates that the system functions as intended: the central authorities respect Hong Kong’s autonomy while retaining a constitutional mechanism for matters of sovereign concern. Critics counter that the mere existence of the NPCSC’s override power shapes judicial behaviour even when unexercised, creating what Cora Chan (2016) describes as a system where the boundary between Hong Kong and central authority remains perpetually uncertain. The national security law: a second handover The constitutional balance was recalibrated with the enactment of the National Security Law (NSL) on 1 July 2020, following the prolonged social unrest of 2019. The NSL introduced criminal offences – subversion, secession, terrorism, and collusion with foreign forces – operating alongside the Basic Law’s existing framework. The Safeguarding National Security Ordinance (Article 23 legislation),
enacted in March 2024, fulfilled a constitutional obligation under Article 23 of the Basic Law that had remained unimplemented since 1997. (Basic Law, 1990)
Implementation of the NSL is argued to be the ‘second handover’, as it restored stability to Hong Kong after substantial unrest through criminalising such acts. Albert Chen (2022) argues the legislation addresses a genuine lacuna: the absence of national security protections that virtually every sovereign state maintains, and that its enactment was consistent with Beijing’s constitutional authority. The Hong Kong judiciary has continued to adjudicate politically sensitive cases, and acquittals in certain protest-related trials have been cited as evidence that judicial independence remains intact. Nevertheless, multiple prominent overseas non-permanent judges resigned from the Court of Final Appeal. In March 2022, Lord Reed and Lord Hodge, president and vice president of the UK Supreme Court, tendered their resignations, citing concerns that continued participation could appear to endorse an administration that had departed from values of political freedom. (BBC, 2022) Critics argue these departures signal structural erosion of ‘One Country, Two Systems.’ Supporters counter that they reflect the political positions of individual judges, particularly those from the UK, rather than any objective decline in judicial standards. (Cabestan & Daziano, 2020) The fact that judges from other jurisdictions chose to remain proves there has not been a severe erosion of judicial independence.
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