Elaborating on High (and Medium) Stakes

The term “core interest” has, in fact, been repeatedly invoked by the Chinese Communist Party over the years. Publicly defined by the Party in 2009, the term has three components : “(1) preserving China’s basic state system and national security (); (2) national sovereignty and territorial integrity (); and (3) the continued stable development of China’s economy and society ()” (Swaine Reference Swaine2010, 4). They are supposedly nonnegotiable “bottom lines” and define the nation’s grand objectives and strategies relating to China’s domestic and international affairs (J. Yang Reference Yang2015, 14–15). China regards “acts of separatism, subversion, infiltration and sabotage” in Hong Kong as challenges against “the bottom line” (Associated Press 2019). Extending this logic, other examples of high-stakes cases may include instances that potentially undermine China’s fundamental control in Hong Kong politics.

These principles are clear in theory but have been subjected to the Party’s manipulation. Regarded as adaptable and pragmatic in its leadership style, the Party frequently revises its policies when implementing its core interests in order to maintain flexibility (Zhu Reference Zhu2011). Consequently, what issues exactly fall within the ambit of core interests can depend on many factors, including the political climate and current leadership. The Party’s interpretations of sovereignty and security have seemed, at times, all-compassing. Whether issues relating to the peripheral regions of China and the recent expansionist policies are considered by the Party to be core interest issues have been subjects of rigorous scholarly debates, even though the overarching principles—the core interests—hold constant (Zeng, Xiao, and Breslin Reference Zeng, Xiao and Breslin2015).

Having said that, through China’s expressed core interests, we not only can have a better picture of the Party’s internal logic but also ascertain what may be considered high-stakes and medium-stakes cases in the context of Hong Kong. These core interests guide us in identifying the clearly high-stakes cases, and the politically salient questions that primarily affect only the Hong Kong polity are medium stake issues. The fact that Hong Kong enjoys a considerable degree of autonomy, compared to the cities in Mainland China, suggests that these core interests may be enforced less assertively in Hong Kong. The mechanisms for implementing China’s core interests in Hong Kong are usually of a different nature since Hong Kong and Mainland China are separate jurisdictions. ^{Footnote 16} Even under the shadows of the core interests, there is probably greater room for Hong Kong courts, compared to Mainland ones, to maneuver in cases that are not clearly high stakes. Even with my best efforts to sharpen the definitions, the distinction remains as rough categories. The select case analyses that follow intend to give flesh to the categories and demonstrate the utility of this bifurcated approach.

High-Stakes Cases

This subpart examines different lines of clearly high-stakes cases and political actors’ responses to them. The Party, through different avenues, has signaled to the public its intentions in these cases, making sure that the courts are aware of its preferences. And usually, as we shall see, the courts’ outcomes and reasonings reflect their political sensitivity. As a result, sanctions are rare. The high-stakes cases to be explored are grouped thematically: constitutional jurisdiction, symbols of sovereignty, democratic reform, and political rights of opposition.Footnote ¹⁷

Medium-Stakes Cases

Medium-stakes cases provide valuable opportunities to the courts to earn their reputation with a minimal risk of sanctions. The promotion of liberal values is often, in principle, contrary to the authoritarian ideology, but it does not necessarily contradict China’s core interests. Even when China finds a decision distasteful, it has to pick its battles carefully since unrestrained authoritarian interference can potentially lead to upheavals in Hong Kong’s financial market and mass protests. It would be most unusual for China to intervene with decisions that are clearly outside its core interests. As we shall see later, the courts have shown the public that they are unafraid to rule against or criticize the local government in medium-stakes cases. The CFA has ruled that primary legislation is unconstitutional more than half of the time (Ip Reference Ip2019, 106). Regardless of the identities of the parties involved, the nature of the action or policy, and the circumstances surrounding the incident, the courts have shown noticeable commitment to the protection of human rights and the effectuation of social change outside high-stakes cases.

An illuminating line of cases relate to LGBTQ rights. In China, LGBTQ rights are not legally recognized, homosexuality as a crime was only decriminalized in 2001, and there continue to be plenty of crackdowns on LGBTQ activities (see, for example, Kang Reference Kang, Weston and Jensen2012; Hernández and Mou Reference Hernández and Mou2018; Amnesty International 2019).Footnote ¹⁹ State resistance is in part due to the LGBTQ rights movement’s potential to gather the crowd. Transformative change is unlikely in light of China’s tightening control over civil society. Conversely in Hong Kong, the community is generally very supportive of the LGBTQ rights. ^{Footnote 20} LGBTQ rights in Hong Kong are considered more developed than in many other Asian societies with similar social underpinnings such as China and Singapore (Peterson Reference Peterson2016), and the Hong Kong courts, especially the CFA, have been one of the key engines for these developments. ^{Footnote 21} The courts have tracked social sentiment and expanded the right to equality to include the prohibition of discrimination on the ground of sexual orientation. From decriminalizing buggery (Secretary of Justice v. Yau Yuk Lung [2007]) and legalizing transgender marriage (W. v. Registrar of Marriages [2013]) to the recognition of marriage or civil partnership status of same-sex couples for dependent visa purposes (Q. T. v. Director of Immigration [2018]) and the extension of spousal benefits to same-sex married couples (Leung Chun Kwong v. Secretary for Civil Service [2019]), the signs for social change in this regard have been very promising. The local community, international organizations, and multinational corporations have celebrated many of these decisions (C. Lau Reference Lau2018; Ives Reference Ives2019).

The considerably liberal approach in medium-stakes cases extends beyond LGBTQ cases. The court in Tse Wai Chun v. Albert Cheng (2000), a defamation case involving three well-known personalities and a radio talk show, took the opportunity to liberalize the fair comment defense by deciding that honesty, instead of motive, was the key legal requirement. The decision’s positive effects on freedom of expression has been reported by the press (Singtao 2000), and its jurisprudential impact has travelled across the common law world (Lo Reference Lo, Young and Ghai2014a, 583–85). In Koo Sze Yiu v. Chief Executive of the HKSAR (2006), dissidents challenged the constitutionality of the statutory power to intercept telecommunications and the lawfulness of the executive order that authorized the covert surveillance. Prior to the legal challenge, there were heated debates in the legislature about privacy concerns, and the Bar Association had issued a statement questioning the legality of the policy (Yau Reference Yau2005). The courts decided in favor of the applicants, with the lower court interpreting the right to privacy generously (Leung Kwok Hung v. Chief Executive of the HKSAR [2006]). The CFA also ruled against the government in some protest cases (HKSAR v. Chow Nok Hang [2013]).

Adding a Nuance: Borderline Cases?

The foregoing discussion has focused on clearly high-stakes and medium-stakes cases. The bifurcated approach rests on rough categories, and there are issues that are not clearly within, but perhaps on the fringes of, the high-stakes category. Borderline cases that arguably fit in both categories can be potentially defining moments for social legitimacy and judicial autonomy. The bifurcated approach and its logic are relevant to borderline cases, but deciding which frame to adopt (high or medium stakes) is a balancing exercise that is dependent on the potential payout and costs, the legal facts, and the political climate. One might argue: better safe than sorry, and a high-stakes frame should prevail when in doubt. This risk-averse attitude is understandable. And, indeed, the Hong Kong courts’ granting of injunctions against protestors during the Occupy Central movement in 2014 did follow this rule (South China Morning Post 2014).

This rule is not without its downsides. Courts internalize authoritarian norms when adopting the high-stakes frame. Once entrenched, these norms can be hard to reverse, as we saw in the flag desecration cases. It also misses valuable opportunities for the courts to carve out spaces for judicial autonomy and boost legitimacy. By shifting a borderline case to the medium-stakes category, the court essentially removes all doubts and diminishes the boundary of the high-stakes category. Take Falun Gong cases as an example. Falun Gong has long been considered by the Party as a forbidden cult. Labeled as a subversive group, China bans it on national security grounds. China’s intolerance for religious sects has been notorious for decades. A high-stakes frame should prevail on this account. On the other hand, Falun Gong followers have always been free to practice in Hong Kong, with many of their demonstrations being formally approved by the local authorities. From a more pragmatic perspective, Falun Gong’s political presence in Hong Kong is rather insignificant, and it is generally regarded to be a benign spiritual or cult group in Hong Kong. A medium-stakes frame can also be convincing.

Taking a calculated risk, the CFA in Yeung May Wan v. HKSAR (2005, 216) protected Falun Gong followers’ freedom of expression and noted that this right protected “views which may be found to be disagreeable or even offensive to others or which may be critical of persons in authority.” The decision was described by the opposition as an “affirmation of [the] basic human rights and fundamental human rights” (A. Lau Reference Lau2005). Similarly, a subsequent challenge in Epoch Group Ltd v. Director of Immigration (2011) against the Department of Immigration’s decision to deny Falun Gong members entry was also successful.

But, of course, not every risk pays off, and the Kwok Wing Hang v. Chief Executive in Council (No 2) (2020) case is a perfect illustration. The case was about the constitutionality of an anti-mask regulation and its enabling statute, which were used to tackle masked protestors and rioters. The laws being challenged had little to do with the Party’s core interests, but the facts of the case were related to the anti-extradition bill protest movement, which was regarded by some as a threat to Chinese sovereignty. The Court of First Instance, with a very well-reasoned judgment, decided against the government. The public was too quick to celebrate: a day after releasing the judgment, representatives of the NPCSC issued a nonbinding statement slamming the court and threatening to remove constitutional review powers from the judges. ^{Footnote 22} The response was undeniably excessive and also unnecessary since there are less damaging ways to express its discontent. The example goes to show the inherent risk in applying a medium-stakes frame to a borderline case.Footnote ²³

There is a third option: halfway-house decisions. The logic remains the same: to satisfy conflicting camps. Instead of doing this through different cases, the courts can realize this logic within a single case. In HKSAR v. Wong Chi Fung (2018), Joshua Wong, a prominent student leader at the time, along with other activists, was arrested for public order offenses during the Occupy Central movement. The substance of the case was largely about clarifying certain principles of criminal law and sentencing, but it is clear that there was also a high-stakes angle, given that those charged were high-profile dissidents targeted by China. The CFA adopted a halfway-house approach: the more lenient sentence was reinstated, but the new and harsher sentencing principles will guide future cases. The technique, however, runs the risk of pleasing no one, as evidenced by some of the local community’s responses to this decision (Ramzy Reference Ramzy2018).

Summarizing the Bifurcated Approach

These cases illustrate the bifurcated approach and how it can strengthen the broader community’s perception of the courts while keeping attacks from the regime at bay. To navigate the legitimacy paradox, a hybrid regime court should take advantage of its institutional space to earn the public’s trust by promoting social change and protecting human rights in medium-stakes cases. In clearly high-stakes cases, however, a conservative attitude is preferred to avoid provoking the regime. This does not mean that there needs to be an uncritical acceptance of authoritarian norms. The least the courts can do in high-stakes cases is to mitigate the damaging effects of an authoritarian judgment through judicial reasoning while maintaining a pro-regime outcome. The logic of the bifurcated approach is applicable to borderline cases, but deciding which frame to adopt is a highly contextual exercise.

Enabling Factors

There are historical, structural, and sociological factors explaining the use of comparative law in Hong Kong. We shall go through seven of them here.

1. 1. Constitutional history and path dependency. Hong Kong had been a British colony for over a century, and it is no surprise that legal doctrines in Hong Kong are rooted in English common law traditions. Building on these legal traditions means keeping track of the developments in other commonwealth jurisdictions (Mason Reference Mason2007, 302). The shared pedigree (and language) is a related reason for citing common law authorities such as Canada and Australia (Mak Reference Mak, Andenaes and Fairgrieve2015).

2. 2. Jurisdiction size matters. Larger jurisdictions with more courts and lawyers produce more case law (Bobek Reference Bobek2013, 41–42). Similar to Ireland, Hong Kong is a small common law jurisdiction with less of its own precedents. When self-referencing is not possible, comparative citation becomes a practical tool in plugging this gap.

3. 3. Age of jurisdiction. Hong Kong is a young jurisdiction, and it needs to look elsewhere for legal inspiration and legitimation.

4. 4. Constitutional authorization. Under Articles 39 and 84, the Basic Law explicitly authorizes the use of international law and foreign common law in adjudication.Footnote ²⁵

5. 5. The identity of Hong Kong. With Article 109 explicitly referring to Hong Kong as an “international financial centre,” Hong Kong’s reputation hinges on international recognition. Comparative law encompasses international and Western norms, and appearing to conform to them through comparative citation assures international audiences. This practice has served the Hong Kong economy well (Mason Reference Mason2007, 302–3).

6. 6. The legal profession. A significant number of legal professionals, including judges, lawyers, and legal academics, have received their legal education in foreign jurisdictions. Popular destinations for foreign legal education include the United Kingdom, Australia, Canada, and the United States. Lawyers in Hong Kong very often refer to comparative jurisprudence in their submissions. Eminent barristers elsewhere, mostly from the United Kingdom, have also been admitted to practice in Hong Kong and have argued in major constitutional cases. A culture of comparative jurisprudence is self-reinforcing: teachers refer to comparative jurisprudence in legal academies; lawyers argue with comparative law in courts; and judges cite comparative authorities.

7. 7. Court design invites comparative influences. Overseas judges are allowed to participate in CFA cases, according to Article 5(3) of the Hong Kong Court of Final Appeal Ordinance (1997) and Article 82 of the Basic Law. When deciding substantive appeals to the CFA, five judges hear a case, often with a visiting overseas judge present. Each judge, domestic or not, is given equal weight in their votes. Overseas judges usually come from the United Kingdom, Australia, New Zealand, and Canada. Allowing them to participate is a direct way to import comparative jurisprudence.

Legitimacy Functions of Comparative Citation in Hong Kong

Comparative citation is made possible and common in Hong Kong because of the factors outlined above, but they do not explain the implications of this technique.Footnote ²⁶ Comparative jurisprudence is used to strengthen a court’s reasoning when the standard adopted is consistent with comparable jurisdictions. It has important doctrinal implications to the legal development of Hong Kong. However, we might never know whether a judge is citing comparative law for doctrinal or strategic reasons, and the two types of reasons are not mutually exclusive. I should point out that adopting the insight of comparative law is one thing, explicitly citing it is another. The constitutional court in Taiwan is an example of where judges regularly consider comparative law for guidance and inspiration, even though explicit references to foreign precedents are less than common in the judgments (Law and Chang Reference Law and Chang2011, 558–62). While case citation practices depend on jurisdiction-specific conventions and norms, there is inevitably an element of choice involved. This choice of deciding what comparative law to cite and/or adopt may be indicative of the judges’ intentions. This choice can convey different meanings to its audiences, and these meanings may have legitimacy implications to a court. Doctrinal contributions of comparative law will not be the focus here. I would like to instead discuss its legitimating functions.

Comparative jurisprudence legitimizes controversial decisions. This mode of reasoning signals to the court’s audiences that the decision reflects the wisdom of the crowd. A decision that relies on comparative jurisprudence purports to be the result of a combination of legal reasoning and the following of a broader consensus. It effectively insulates judges from the outcomes and places judges at a safe distance from the controversies that might follow. The use of comparative law is also a value-neutral technique. It can be tailored to coincide with a liberal or authoritarian outcome and consequently allows courts to deflect critics from both the pro- and anti-regime camps. For example, deciding not to intervene with the legislature’s internal proceedings, the CFA in Leung Kwok Hung v. President of the Legislative Council (No 1) (2014) started by noting that the common law principle of nonintervention originated from the British parliamentary system. This move allows the court to dive into the world of commonwealth jurisprudence. Cases from Australia, Canada, New Zealand, and the Privy Council were then cited to back its position. The Israeli jurisprudence referred to by the appellant was rejected, one of the reasons being that there are important differences in legal traditions. Putting it differently, the CFA is saying that the outcome reflects the consensus of the common law world.

Some level of arbitrariness in the use of comparative law is inevitable. It may be conscious or unconscious. Former CFA nonpermanent judge Anthony Mason admits that, given the “sheer magnitude of modern comparative law material,” judges cannot avoid adopting a “selective approach” (Mason Reference Mason2007, 306). Comparative jurisprudence is determined by its relevance, but there can be competing lines of comparative jurisprudence that are relevant. To be clear, again, that is not to suggest that the use of comparative law must be for strategic reasons, but this technique involves a degree of malleability. It is frequently unclear as to what the “best” comparative position is or whether this position even exists. The nature of comparative jurisprudence opens up another domain for the judges to exercise his or her legal as well as moral and prudential judgments. As Ran Hirschl (Reference Hirschl2014, 552) puts it, comparative citation can be “at least as much a political phenomenon as it is a juridical one.”

Looking at Leung Kwok Hung (2014), again, the argument that Israeli jurisprudence is at odds with common law principles may be defensible, but there are also normative problems when using jurisprudence from democratic common law countries. For one, New Zealand and the United Kingdom are parliamentary sovereignties without a written constitution, but the Basic Law—the written de facto Constitution—is supreme in Hong Kong. Also, unlike the countries cited, Hong Kong is nondemocratic. Separation-of-powers principles can be highly contextual in application and depend on how elections, the legislature, and constitutional rules are designed. Reasonable arguments exist as to whether the jurisprudence adopted by the CFA in fact fits the domestic context. Selective engagement with comparative authorities is possible because the growing market of comparative sources offers countless routes for the courts to choose from (Hirschl Reference Hirschl, Delaney and Dixon2018, 405). It is not difficult for judges to find comparative authorities to support their intended conclusion.

Furthermore, a norm of comparative citation can downplay the impression of using comparative law purely for instrumental reasons. When almost every judgment contains some comparative authority, it would be challenging for critics to distinguish between principled and unprincipled uses of comparative law. This offers more institutional cover to the judiciary to shield off allegations that might damage its reputation. This tool is strengthened by citing authorities of reputable courts. The judges’ decision as to which jurisdictions are relevant reflects “the set of values they wish their country to be associated with and the “right” club of nations they prefer their country to belong to” (Hirschl Reference Hirschl2014, 552). In Uganda and other transitional or weak democracies, Johanna Kalb (Reference Kalb2013) argues that referring to jurisprudence from liberal democracies and international courts can be a legitimizing strategy by signaling to the world their commitment to rule of law and other democratic ideals. The commonly cited authorities in Hong Kong are from liberal democracies and international courts, which are the “canonical” group of courts (Hirschl Reference Hirschl2014). Given the system’s common law roots, Hong Kong lawyers and legal scholars tend to assume, not without good reasons, that Chinese law has minimal relevance in Hong Kong.Footnote ²⁷ Some Chinese scholars, including ex-legal chief of the Chinese Liaison Office Wang Zhenmin, however, have argued that the Constitution of the People’s Republic of China has operating force in Hong Kong (Wang and Sun Reference Wang and Sun2014). The extent to which Chinese laws should apply in Hong Kong is beyond the scope of this article, but this debate, again, goes to show that deciding whether or not to cite Chinese law involves a degree of judicial choice.Footnote ²⁸ The reality remains that Chinese laws were only referenced in a handful of Hong Kong cases, usually for laying out the background of a case or law instead of having any controlling force (see Wang and Sun Reference Wang and Sun2014). This general pattern indicates in part the intention of the Hong Kong judiciary to follow the consensus of the West and to ideologically distinguish themselves from China.

And, indeed, it seems that the judiciary has successfully joined the “elite club.” Hong Kong judges are often invited to countries like the United Kingdom and Australia to give lectures. Their judgments have been featured in courts all around the world, including England and Wales, Scotland, Australia, Canada, New Zealand, Malaysia, Singapore, the Eastern Caribbean territories, the Cayman Islands, Trinidad and Tobago, the Fiji Islands, Tonga, and Taiwan (Lo Reference Lo, Young and Ghai2014a). Pui Yin Lo’s (Reference Lo, Young and Ghai2014a) study tracks how Hong Kong judgments have been cited by textbooks outside Hong Kong and have made important contributions to the jurisprudence of the common law world. This reciprocity can be read as foreign jurisdictions’ recognition of the Hong Kong judiciary’s status. Foreign scholars have explicitly likened the Hong Kong courts to those in Canada, Australia, and the United Kingdom in terms of the quality of judgments (Hor Reference Hor2007, 79). CFA judge Joseph Fok (Reference Fok2017, 10) explained that the institutionalization of overseas judges is to “provide a valuable external affirmation of the health of the rule of law in Hong Kong and the independence both of the Court and the Hong Kong Judiciary.” Similarly, a culture of referring to the judgments of canonical courts can be a way to establish reputational links with their respectable counterparts, which in turn would offer a stable source of legitimacy to Hong Kong courts (Law Reference Law2015, 1009).

Before I conclude this part, one might ask: since not all of the courts’ audiences are legally trained, does comparative citation matter at all? An argument along this line might be that lay people are simply unaware of the decision at all or do not understand its contents. As a result, it would be redundant to talk about the use of comparative jurisprudence as mode of reasoning having any legitimizing effects. Some of the intended audiences, such as government officials, international business corporations, and political parties have their own teams of lawyers. These audiences understand the importance of the reputational association of courts. Convincing the lawyers that a decision is legitimate, in part because of the comparative law cited, is an indirect way of convincing the lawyers’ clients—that is, the intended audiences. Similarly, the legitimizing effects of the decisions can travel through “sophisticated intermediaries” to broader audiences (Law Reference Law2008, 751). These intermediaries, such as newspaper columnists, commentators, bloggers, and international organizations, not only help to increase the visibility of important cases, but they also explain to the public the legal reasoning of judgments, sometimes including references to the comparative materials cited.Footnote ²⁹ So, again, convincing these intermediaries allows the legitimizing effects to travel to common individuals.

Another argument might be that all that people care about is the favorability of an outcome. The mode of legal reasoning only matters to lawyers, some argue. This is an overly simplistic way of understanding the relationship between legal reasoning and social legitimacy. Social psychology research has confirmed the relevance of judicial reasoning in shaping lay people’s assessment of a decision. Investigating whether judicial reasoning promotes laymen’s acceptability of a decision, Dan Simon and Nicholas Scurich (Reference Simon and Scurich2011) found that “[laymen] were indifferent towards the modes of reasoning when they agreed with the outcome of the judges’ decision, but were differentially sensitive to the judicial reasoning when the judge’s decision frustrated their preferred outcome.” The mode of reasoning particularly matters when one does not agree with the outcome. Studies have also found that the mode of reasoning need not be sophisticated to convince a layperson (see Weisberg et al. Reference Weisberg2008; Simon and Scurich Reference Simon and Scurich2011). Empirical research will be needed to examine more closely the precise cognitive effects of comparative citation on individuals with varying levels of legal sophistication, but to say that judicial reasoning is irrelevant and social legitimacy is determined only by the favorability of an outcome must be false.

Standing Rules

To establish standing in judicial review in Hong Kong, one must demonstrate “sufficient interest” in the disputed matter. Courts generally give this requirement a broad interpretation: an applicant need not necessarily be the aggrieved person directly affected by the policy or decision to qualify for standing, and in the absence of an obvious or direct interest, courts have also granted standing when the proper context arises (Kong Reference Kong2009, 341). There is no apparent bias in terms of accessibility to the courts, as evidenced by the discussion in the previous parts. The government, regime-supporters, and, most importantly, the opposition have all successfully petitioned to the courts regularly.

One might argue that this example has nothing to do with my audience-based theory of legitimacy because judges decide on standing questions based on law instead of political considerations. I do not disagree that the standing tests based on merits or the sufficiency of interests have some controlling effects on the judges. Concepts like merits and interests, however, are indeterminate, and the nature of these legal tests opens considerable space for judicial discretion. A study in the United States, for instance, found that Republican circuit court judges, compared to their Democratic peers, were much more likely to deny environmentalists’ petitions, even though well-established standing doctrines exist there as well (Pierce Reference Pierce1999). These malleable doctrines are susceptible to manipulation for strategic gains, especially when courts are under pressure in authoritarian contexts. The fact that no sign of abuse is detected in Hong Kong should be celebrated. Hong Kong judges have made sure that the legal system is accommodating and provides sufficient opportunities for different political stakeholders to participate. Adherence to these procedural ideals contributes to the judiciary’s procedurally fair image.

The CFA’s Docket Control Power

A second example relates to the CFA’s docket control power. A convenient way to dispose of appeals at the CFA level is the Rule 7 procedure. Under Rule 7 of the Hong Kong Court of Final Appeal Rules (1997, sub. leg. A), the CFA can screen out hopeless or frivolous cases without an oral hearing. Rule 7 decisions are normally unpublicized. The Rule 7 procedure is ripe for abuse given its expediency, lack of apparent reasoning, and unpublicized nature. Operating in a constrained political setting, it would be rationale to use the Rule 7 procedure to avoid engaging with political hot potatoes. Surprisingly though, although more than half of the cases appealed are rejected using the Rule 7 procedure, politically salient cases almost always make it through to the final appeal stages, as we saw previously (Young and Da Roza Reference Young, Da Roza, Young and Ghai2013, 151). This suggests that the CFA uses the Rule 7 procedure as it was originally intended—that is, to only reject cases that lack any merits efficiently. This is another example of the CFA’s commitment to procedural justice.

On top of the Rule 7 stage, the appellant must also seek leave in order to appeal to the CFA. The granting of leave is discretionary. There are politically salient cases—such as the flag-burning case decided during the Occupy Central movement (HKSAR v. Koo Sze Yiu [2014]) and the oath-taking case relating to two pro-independence members-elect (Yau Wai Ching v Chief Executive of HKSAR [2017])—where even though the appellants were not dismissed by the Rule 7 procedure, they failed to proceed to the substantive appeal stage since they were denied leave. A leave dismissal does not share the same strategic gains of dismissing a case by the Rule 7 procedure. Unlike Rule 7 decisions, leave decisions are publicized with legal reasoning. Leave dismissals can sometimes be as long as substantive appeal judgments. Why, then, would the CFA not use the Rule 7 procedure for dismissing unwanted politically charged cases? This is perhaps because the law still meaningfully regulates judicial behavior. Whether they should pass the leave test is another matter with more room for debate, but Rule 7 imposes a very low threshold. Those cases clearly have sufficient legal merits and/or are of public importance to pass the Rule 7 procedure. The complexity and salience of those cases also demand public justifications. The court would violate the principle of transparency if it abuses the Rule 7 procedure.

Having said that, denying a case at leave stage can perhaps be a modest technique to limit an unwanted case’s precedential value. In theory, a leave decision should be given less weight than a substantive decision because cases that reach the substantive stage are argued more extensively, and only the substantive decisions are decided by the full CFA bench of five members.Footnote ³¹ Final courts overrule themselves all the time, but all things being constant, overruling a decision by a leave appeal committee is less illegitimate than overruling the full court’s own decision. Even though lower courts seem to treat leave decisions as binding, the legal points established by a leave dismissal are in theory less entrenched. This offers an opportunity for the CFA to reverse its own position when a sufficiently similar fact pattern shows up again at the right time.

Authoritarian Playing by the Rules?

An important question remains: why would a hybrid regime incumbent play by the rules when the procedures are placing brakes on the regime’s arbitrariness and expediency? Procedural principles such as generality, prospectivity, consistency, and publicity are considered central to the rule of law (Fuller Reference Fuller1964). Appearing in many ways to be the antithesis of authoritarianism, a fair application of legal procedures shackles the authoritarian regime. As Philippe Nonet and Philip Selznick (Reference Nonet and Selznick2005, 66) explain, “[t]he taming of repression begins with the growth of commitment to governance by rules; … procedure, in turn, is the main visible guarantee of an even-handed application of rules.” The court’s commitment to procedural justice also opens up the possibility for dissidents to voice preferences and challenge existing policies (Ginsburg Reference Ginsburg, Ginsburg and Moustafa2008, 65). With limited political participatory rights in nondemocratic regimes, procedural rights can be an imperfect substitution. The opposition can use the legal process to raise public awareness and promote public discourse about important topics (Dotan and Hofnung Reference Dotan and Hofnung2005), which in turn might become focal points for public mobilization against the regime (Law Reference Law2008).

This hypothesis is supported by the trend of legal mobilization in Hong Kong. The judiciary is perceived as an avenue by dissenters to judicialize politics and push for policy and democratic changes (Tam Reference Tam2012). It is used as a forum to express discontent and bring controversial issues to light. Important human right doctrines have been developed as a result. Top judges have showed sympathy to this trend: “In Hong Kong where democracy still has a long way to evolve,” citing the dicta of Designing Hong Kong Ltd v. Town Planning Board (2018, 271), “persons might well resort to public interest litigation in circumstances under which persons in evolved democracies would resort to the political process instead.” Former Chief Justice Andrew Li also noted that, “under the rule of law, convenience and justice are sometimes not on speaking terms” (G. Cheung Reference Cheung2015).

While this may seem counterintuitive, perhaps the reason for the incumbent’s toleration of procedural justice is that it can also profit from a court or legal system that is perceived as fair, transparent, and open. The regime derives reputational and economic gains by superficially maintaining the rule of law. An open judiciary can sometimes be a nuisance to the incumbent, but an open judiciary helps stabilize governance and sideline opposition when efforts to protest or revolt are redirected to a less threatening judiciary. Using legal reasoning as a method of rationalization, courts can absorb the shock of judicialized political issues. Preserving the appearance of contestation also provides democratic legitimacy to the regime.

Additionally, one should not assume that procedural justice necessarily contradicts with an authoritarian outcome. Procedures constrain arbitrary power but they do not always guarantee substantive limitations on authoritarianism. The courts’ treatment of high-stakes cases is an exemplar of this point. Almost like an implicit arrangement, judges often know where to draw the line, and their autonomy is limited to the interpretation of legal procedures and deciding medium- or lower-stakes cases. This implicit arrangement brings to mind the “historic bargain” described by Nonet and Selznick (Reference Nonet and Selznick2005, 58), where “[l]egal institutions purchase procedural autonomy at the price of substantive subordination.” In the most ideal case, a triple-win situation can be created by the court’s commitment to procedural justice: the people and opposition retain an openly accessible channel to challenge the incumbent in some important policy areas, the incumbent maintains an image of competitiveness without being subjected to any real and immediate threats that would undermine its fundamental control, and the courts gain social legitimacy from the satisfaction of these two opposing groups.

This also does not mean the regime always needs to hold back. For the regime, this is a balancing exercise. Authoritarians are especially myopic, risk averse, and conservative when redlines are crossed. Potential gains derived from a procedurally fair system remain secondary to the regime’s need to preserve its core interests. When the regime does not even trust its courts to implement its will, it may decide to override the judiciary and sacrifice the appearance of procedural justice (and judicial autonomy) for an immediate assertion of power. Indeed, while the local and national authorities generally understood the value of self-restraint in the past, the 2016 Interpretation was an example where the NPCSC defied convention to interrupt the adjudicative process and force its preferences.Footnote ³² A more chilling procedural violation arose from the substance of the 2016 Interpretation. Many rightly argue that the text of the constitutional provision in question—Article 104—cannot bear the interpreted meaning (see Lo Reference Lo2018; J. Chan Reference Chan2019). According to the text of Article 104 of the Basic Law, the constitutional requirements specified within only apply to those “[w]hen assuming office,” but the 2016 Interpretation interpreted these requirements to be preconditions for “standing for election” as well. The 2016 Interpretation is anti-democratic as it practically bypassed legislative and constitutional amendment procedures. It is also an overreaction as there are more optimal ways to secure its preference without causing unnecessary damage to the judiciary.Footnote ³³ Nevertheless, the example reminds us that the regime is sometimes willing to go to great lengths to make a statement and to get what it wants in clearly high-stakes cases, even if this means putting the entire legal order in jeopardy.