For Hong Kong’s sake, the judiciary must regain Beijing’s trust (SCMP Sep 3, 2020)

How did it come about that Beijing has developed such mistrust of the Hong Kong judiciary? The courts have put a slant on the Basic Law, by applying obscure norms and values from overseas which are totally unsuited to Hong Kong’s circumstances.

Recent events have made three matters blindingly obvious. First, Hong Kong’s cultural values and way of life have, over the past 170-odd years, evolved very differently from mainland China’s. The “one country, two systems” policy is the key to preserving those attributes and maintaining Hong Kong’s long-term prosperity, way beyond 2047.

Second, for the one country, two systems formula to work properly, there must be trust between the central government and the Hong Kong administration.

Third, as regards the functioning of the judiciary, it is obvious that Hong Kong has lost Beijing’s trust. Hence, Article 44 of the new national security law, which places responsibility for choosing judicial officers to handle national security cases with the chief executive, not the chief justice.

This is a pivotal time for Hong Kong. Decisions taken in the next few years will set its course forever. Hong Kong will either be a shining link in the Greater Bay Area to the outside world or become a puny middle-sized city on the southern shores of China.

Consider the big picture. For hundreds of years, the Middle Kingdom was the undisputed economic and cultural centre of the world. It fell into decay during the latter days of the Qing dynasty but is now resurrecting, through much agony and hardship, its central role. It is also re-establishing, through the Belt and Road Initiative, the ancient trade connections between the Middle Kingdom and the other great civilisations, this time on a much wider scale.

Hong Kong is destined to play an important role in this grand enterprise, if only its people recognise this and reach out with confidence to the future, particularly the young.

Regarding the part to be played by the judiciary, deep soul-searching is now necessary. How did it come about that Beijing has developed such mistrust of the Hong Kong judiciary? The answer lies partly in a number of recent cases directly affecting the relationship between the central government and Hong Kong, for instance: the Hong Kong-Macau-Zhuhai Bridge case; the Congo sovereign immunity case; the Legislative Council oath-taking case, and; the West Kowloon express rail terminus case.

There are many others. Most concern interpretation of the Basic Law by the Hong Kong courts. They have, at the highest level, put a slant on its plain words, by applying obscure norms and values from overseas which are totally unsuited to Hong Kong’s circumstances. Such an approach is fundamentally wrong and is opposed to basic common law principles.

One of the most breathtaking examples is the face-covering case decided by two High Court judges in November last year. They roundly declared that the Emergency Regulations Ordinance was incompatible with the new “constitutional order” established after June 1997 for Hong Kong. This shows total insensitivity to the policy of one country, two systems.
The judges, in effect, elevated themselves to be on a par with the National People’s Congress, deciding what the constitutional order for Hong Kong should be, thus empowering themselves to strike down an essential piece of primary legislation. No wonder the judgment evoked an immediate negative response from the Legislative Affairs Commission of the National People’s Congress Standing Committee.

What is outlined above is a public scandal. But it has aroused little public response for this reason: each of those judgments is so dense, verbose, diffused and lengthy that no journalist could possibly understand it; hence, no one dares raise a voice in criticism. The public has, in effect, been smothered by an avalanche of words.

The approach taken by the courts has wide social repercussions. In many of those cases, what comes through is that, consistently, the courts have subordinated the common good to the assertions of personal right. This gives a sense of personal sovereignty to those who have taken to the streets in violent protest. Laws which protect the majority can be trashed with impunity because personal agendas are supreme. The courts have, in effect, helped to create the social environment leading to the mayhem wrought on the streets over the past year.

What is plain is that Beijing has not deviated from the course set for Hong Kong. The one country, two systems policy is intact. And the Basic Law gives substance to that policy. It is a constitutional instrument, not a civil code for the day-to-day management of the special administrative region’s affairs. This is left to local statutes and the common law. Herein lies the high degree of autonomy, accommodating Hong Kong with its unique characteristics to the broad framework of the mainland.

Over the 20-odd years since the handover, where the courts’ powers were directed to the enforcement of rights and liabilities under local statutes and the common law, there has been no hint of intervention by Beijing – even though, in many instances, stated-owned enterprises have been involved.

But using the Basic Law to air local grievances – or to harass the government – is another matter. There, the courts have allowed lawyers to play forensic games, using articles in the Basic Law as weapons to strike at government institutions.

High Court judges who are on the front line of judicial review cases do not seem to realise this elemental fact: every time they purport to apply the Basic Law, that potentially makes a dent in Hong Kong’s high degree of autonomy, for the final power of interpretation lies not with the Hong Kong courts but with Beijing.

Consider this startling fact. In 1997, there were 112 applications for judicial review. Last year, there were 3,889. Does this alone not suggest that the process has been abused?

Over the years, Hong Kong lawyers have developed an alarming blindness to realities on the ground. Repeatedly, public statements made by the Bar Association concerning “interference” by Beijing in Hong Kong affairs bring an unspoken agenda: that a “high degree of autonomy” means that the central government has no sovereign powers over Hong Kong.
An example of this is the recent furore over Article 22 of the Basic Law. There, the Liaison Office made a statement whose meaning, to most people, would have seemed obvious: that the central government has “comprehensive jurisdiction” over Hong Kong. But the Bar chairman disputed this. In a letter to the secretary for constitutional and mainland affairs in April, he sought an explanation for what he called the “newly asserted constitutional position”.

“Newly asserted”? Does he not accept that is what sovereignty means when Hong Kong reverted to China in 1997?

What has happened is that, insidiously, over the past 20-odd years, the Hong Kong Bar has woven a web of words around the courts in matters of administrative and constitutional law – an area of obvious concern to the central government.

Within this web, the courts have feasted on banquets laid out by counsel. Often, there are no real issues. But the feast goes on. The judges see themselves as being obliged to chew over arguments presented by counsel, morsel by morsel, to the extent that, as in the face-covering case, the court apologised to counsel for not having chewed over his “comprehensive” arguments.

And, worst of all, the courts have allowed counsel to turn the Basic Law on its head: instead of it being the guarantee of Hong Kong’s stability and prosperity, it has been used to chisel away the edifices of law and order. The cumulative result, over a long period, is Article 44 of the new national security law.

The sad fact is that, in 1997, at the handover, Hong Kong had a robust and effective common law system. Looking at the scene today, can one honestly say that the system is fit for purpose?

The chief justice, at the opening of the legal year in January, said that a “task group” had been set up to “look into how best and how expeditiously” the courts can cope with the multiple cases arising from the arrests made last year.

Plainly, the ills afflicting the judiciary today call for far more than such a “task group”. To free the system from pomp and ritual, to seek truth from facts and not from ideologies, to re-energise the common law and make it relevant to Hong Kong’s circumstances, to render the system fit for purpose: these require a total shift in mindset. It calls for radical cultural change.

Perhaps the path forward is set by a speech given by President Xi Jinping in 2014: “We have a big stage to display our advantages on [and] a long and rich history to draw benefit from … We should modestly learn from the best of other civilisations, but never forget our own origin. We must not blindly copy the development models of other countries, nor accept their dictation.”

This article was first published in the South China Morning Post on September 3rd, 2020.

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Henry Litton is a retired Hong Kong Court of Final Appeal judge and author of "Is the Hong Kong Judiciary Sleepwalking to 2047?"

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