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IdentifierCreatedClassificationOrigin
09HONGKONG1742 2009-09-14 09:13:00 CONFIDENTIAL Consulate Hong Kong
Cable title:  

DISORDER IN THE COURT: CHIEF JUSTICE ANDREW LI

Tags:   PGOV PHUM HK 
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					  C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 001742 

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DEPT FOR EAP/CM; ALSO FOR DRL

E.O. 12958: DECL: 09/10/2019
TAGS: PGOV PHUM HK
SUBJECT: DISORDER IN THE COURT: CHIEF JUSTICE ANDREW LI
ANNOUNCES EARLY RETIREMENT FROM COURT OF FINAL APPEAL

REF: 08 HONG KONG 1318

Classified By: Acting Consul General Christopher Marut for reasons 1.4(
b) and (d).



1. (C) Summary: Hong Kong was rocked by Court of Final
Appeal Chief Justice Andrew Li's decision, announced at a
September 2 press conference, to retire next August, four
years earlier than the mandatory age for retirement. Li has
led Hong Kong's judiciary through the crucial transition
period since the handover, and the judiciary is seen by many
as the most solid bulwark upholding Hong Kong's autonomy,
rule of law, and human rights. Vice President Xi Jinping's
July 2008 remark that "there should be mutual understanding
and support" among the three branches of Hong Kong's
government and a drumbeat of "scholarly" articles criticizing
the power of the bench to interpret Hong Kong law initially
led many to fear that external factors caused Li's
resignation. However, most have come to accept Li's
explanation that he wishes to clear the way for a new Chief
Justice to oversee the transition as a number of aging senior
justices approach retirement. Li's replacement will be
nominated by the Chief Executive and "endorsed" by the
Legislative Council (LegCo). However, the terms of the Basic
Law appear to bind both of them to accept the recommendation
of the independent Judicial Officers Recommendation
Commission, which Li himself chairs. While there was some
initial push from the pan-democrats for LegCo to have the
chance to question the nominee, Hong Kong's legal community
and even pan-democratic Legal Functional Constituency
legislator Margaret Ng quickly reaffirmed the independence
from politics of Hong Kong's judicial nomination process.
End summary.



2. (C) Comment: Whatever his view of the judiciary's role in
checking the government, we cannot picture Chief Executive
Donald Tsang would seek Li's retirement, particularly now
given his coming battle with the pan-democrats over
constitutional reform. If anything, Li's retirement will
create an air of uncertainty about Hong Kong's rule of law
that may lead the public to support the pan-democrats'
efforts to lock in a roadmap on universal suffrage elections
(septel). Similarly, while the central government doesn't
understand the role and power of the judiciary in Hong Kong,
we believe they are sufficiently aware that the judiciary is
a bellwether for "one country, two systems" for observers
both in Hong Kong and abroad, and would not risk pushing Li
to take such a drastic step at an already sensitive time.
There are enough legal professionals among Hong Kong's bench
and bar enjoying cross-spectrum esteem that we expect the
eventual nominee to be confirmed without serious opposition.
End comment.



--------------------------


End of an Era


--------------------------





3. (C) On July 1, 1997, Andrew Li Kwok-nang became the first
Chief Justice of the Court of Final Appeal (CFA) of the Hong
Kong Special Administrative Region. As such, he has been
head of the judiciary during a crucial period during which
many feared Hong Kong's judicial independence and rule of law
might be at risk from interference from the central
government. Those fears have not come to pass: with the
notable exception of the 1999 "right of abode" case, in which
the Hong Kong government petitioned a reluctant National
People's Congress Standing Committee to issue an
interpretation of the Basic Law overturning a CFA ruling, the
judiciary has functioned independently. Public opinion polls
indicate the judiciary enjoys greater public trust than any
other branch of government, and Li is widely credited with
ensuring the bench remains strong and vital.



4. (C) Thus, it was a shock when Li announced September 2
that he would be retiring August 31, 2010. Li will be only
61 when he steps down, four years earlier than normal
retirement (Li also could likely easily have won extensions
of service through his seventieth birthday). His stated
reason was that, as the other permanent CFA justices and a
majority of the High Court's justices will retire in the next
five years, he wished to clear the way for his replacement to
oversee this transition.



5. (C) Given the coming debate over constitutional reform, Xi
Jinping's July 2008 remarks calling for Hong Kong's three
branches of government to work harmoniously (taken as an
indirect challenge to judicial review of government
legislation), and rumors of Beijing's unhappiness with the
Hong Kong judiciary's independence, many feared that Li was
under some external pressure to resign. Senior Counsel and

HONG KONG 00001742 002 OF 002


Civic Party Leader Audrey Eu Yuet-mee, who was Li's first
apprentice barrister, wrote an open letter to Li in respected
Ming Pao questioning why Li, full of health and vitality and
a "workaholic", would choose to retire early. Eu concluded
her "letter" by accepting Li's explanation, albeit with
regret, and mainstream Hong Kong opinion has followed. The
South China Morning Post and Ming Pao editorial pages, as
well as respected centrist commentators Frank Ching and
Joseph Wong, have urged putting aside conspiracy theories in
favor of focusing on replacing Li with someone who will
continue his work of tending to the development and
independence of Hong Kong's judiciary.



--------------------------


Naming a Successor


--------------------------





6. (C) Article 88 of the Basic Law states "judges to the
courts of Hong Kong shall be appointed by the Chief Executive
on the recommendation of an independent commission composed
of local judges, persons from the legal profession, and
eminent persons from other sectors." For permanent CFA
justices (as allowed by Article 82, one seat on the
five-member CFA bench is normally filled by a visiting
justice from another common law jurisdiction, usually
Australia) and the Chief Justice of the High Court, the
nominee must also receive "endorsement" from the Legislative
Council (LegCo). Immediately following Li's announcement,
several pan-democrats, including Civic Party barristers
Audrey Eu and Ronny Tong Ka-wah, were quoted as suggesting
LegCo should have the chance to meet the nominee prior to the
vote. Hong Kong's legal community reacted strongly against
what it saw as a trespass on the independence of the judicial
nomination process. Even Civic Party Legal Functional
Constituency Legislator Margaret Ng Ngoi-yee stressed that
Basic Law Article 90 granted LegCo a vote to endorse (or not)
the nominee, without the power to conduct a U.S.-style
confirmation hearing.



7. (C) The body executing Article 88 is the Judicial Officers
Recommendation Commission, of which Chief Justice Li is ex
officio chair and Secretary for Justice Wong Yan-lung (a
reputed Li protege tipped by some as a possible successor) is
an ex officio member. As explained to us by Margaret Ng,
this body will recommend a single name to the Chief Executive
for Chief Justice. She interprets the "shall be appointed"
language to imply the Chief Executive is bound to then refer
that person to LegCo without challenge (not, to our eye,
proven from the language). For its part, LegCo has in past
determined that, when notified of the coming appointment, the
House Committee (akin to a Congressional Rules Committee)
would appoint an ordinary subcommittee to review the relevant
paperwork for completeness. Absent some unusual
circumstance, LegCo would inform the Chief Executive all was
in order, after which the Government would table a resolution
for an up-or-down majority vote by LegCo. The appointment is
then reported for the record to the National People's
Congress, who do not have any active role in the process.



8. (C) In accordance with Article 90 the Basic Law, the
Chief Justice must be a Chinese citizen permanently resident
in Hong Kong with no right of abode in another country. S/he
must be either a sitting judge or a lawyer with ten years'
work experience in Hong Kong. Li himself was a barrister at
law and Executive Council member when he received the
nomination.
MARUT