When Hong Kong reverted to Chinese sovereignty in 1997, one of the first orders of business of Tung Chee-Hwa, its first Chief Executive (the most senior administrative post in Hong Kong) was to establish the supremacy of Chinese Communist Party over the local judiciary. It’s interesting that one of Trump’s first acts is to attempt to establish the supremacy of the office of the President over America’s judiciary.
The background on Tung Chee-Hwa is this (skip forward if you know it): Hong Kong was a British colony from 1841 until 1997. As such, its judiciary was ultimately part of the British judiciary. Although the local courts could and did judge most cases, the final court was England’s Supreme Court, and the House of Lords and the Privy council before the Supreme Court was established.
It was uncontroversial that this wasn’t appropriate when the sovereign power was China, but it was also uncontroversial that Hong Kong would retain the system of common law. The solution was, therefore, that Hong Kong establish its own Court of Final Appeal (CFA), to be the final arbitrator. And, to be fair, most cases have been dealt with in that court.
But not all. It was an important point of principle with the communists that they had ultimate discretion. Tung (and them, no doubt) chose his battleground with care and patience. They waited until the right case came along, one in which the CFA produced a decision that was very unpopular – specifically, a Filipina that claimed she was denied the right to abode in Hong Kong under a discriminatory immigration law, and won. The government did some scare-mongering, and won a judgement in the CFA that the CFA invite the communists to “reinterpret” Hong Kong’s mini-constitution.
The resulting reinterpretation was predictable – the plaintiff lost – but the bigger point was that the CFA, although it retains that name, has in actuality since been the Court of Penultimate Appeal. The ultimate authority is political, not judicial. Hence Hong Kong’s judiciary is not independent.
Fast forward to Trump, and although the legal issue is coincidentally the same (immigration), the main political issue is who’s boss. The latest judgement makes it clear that the Trump administration is not arguing for the ban on legal or constitutional grounds, but claims rather than the executive order is “unreviewable” by the courts; and consequently that the constitution can be “switched on and off” at presidential behest.
The judgement, although interim, makes it clear that, in its current form, on legal grounds, the executive order doesn’t stand a snowball’s chance in hell – rather than directing his “You’re fired” at Sally Yates, Trump should be directing his by-line at the person who drafted it.
But the nasty thought comes. Whatever you think of Trumps politics, his people are not stupid people. Could it be that the executive order was drafted in the full knowledge that it is unconstitutional, with the deliberate aim of getting a soon-to-be Republican majority Supreme Court to abrogate its own constitutional responsibility and make was for Imperator Trump?