Friday, August 4, 2017

Michael Ng on Rule of Law and Hong Kong's Student Umbrella Movement of 1919 (new book chapter)

"Rule of Law in Hong Kong History Demythologised: Student Umbrella Movement of 1919"
Michael Ng
in Michael Ng & John Wong (eds), Civil Unrest and Governance in Hong Kong: Law and Order from Historical and Cultural Perspectives (Routledge, 2017), pp 11 - 25
Introduction: In the 2005 Common Law Lecture, a prestigious annual seminar in which distinguished jurists address senior lawyers and law academics in Hong Kong, Sir Anthony Mason, former Chief Justice of the High Court of Australia and then Non-Permanent Judge of the Hong Kong Court of Final Appeal, spoke about the role of common law in Hong Kong:
     The common law also stands for a set of concepts, interests and values which it has protected during the course of its long history. They include the rule of law, the independence of the judiciary, access to the courts, the separation of the powers of government, liberty of the individual, freedom of expression, freedom of association … These values have both generated and informed legal principles including the rules of statutory interpretation. The common law supports the rule of law. Under the rule of law, the law is supreme, so that everyone, including those who exercise power, must conform to the law, a concept memorably captured in the celebrated aphorism ‘a government of laws, and not of men’… The common law stands both as a symbol and as link between Hong Kong’s past, its present and its future.
     English law is central to the history of colonial Hong Kong. Traditional colonial historians conceptualize it as a gift to the colonized, and it is still widely acknowledged by Hong Kong citizens today as a core contributing factor to the city’s continued growth and prosperity. The traditional narrative, which Sir Anthony reproduces above, is that the rule of law, which embraces the principles of judicial independence and offers such safeguards of individual liberty as freedom of expression, is the most important legacy of British colonial rule in Hong Kong, a legacy that is very often cited to distinguish the legal and societal development of Hong Kong from that of its neighbor across the border, mainland China. This chapter challenges this widely accepted narrative, thereby severing Sir Anthony’s link between common law’s legal past and present in Hong Kong. It argues that the traditional narrative simply does not stand up to scrutiny of the archival research. On the contrary, that scrutiny casts serious doubt on the weight afforded such liberal notions as the separation of powers, independence of the judiciary, and assurance of individual freedom of expression and association in the common law legal system practiced in Hong Kong in the pre-Second World War twentieth century, particularly in trial hearings in the Magistrates’ Courts, the courts that heard the majority of criminal cases in colonial Hong Kong.
     Through discussion of a widely reported court case concerning students’ anti-Japan movement in 1919, the chapter further argues that the common law system practiced in early twentieth-century played a more important role in reinforcing an authoritarian form of colonial law and order to achieve the British Empire’s strategic aim of maintaining its overseas territorial and economic possessions than in safeguarding individual liberty and the impartiality of the judicial process.
     Only a very limited number of scholarly works have addressed the prevalence of anti-Chinese legislation in nineteenth-and early twentieth-century Hong Kong, and no work to date has questioned the operation of the highly famed rule of law in the trial process of the latter period. This chapter thus constitutes a first attempt to demythologize the well-rehearsed history of common law in Hong Kong told by Sir Anthony Mason and like-minded historians through a close reading of trial hearing record. Owing to space limitations, only the aforementioned 1919 trial case, which was widely reported in both Hong Kong and overseas newspaper of the day, is used to make the case for the foregoing arguments. However, it should be emphasized that it is not the sole such case in the legal history of early twentieth-century Hong Kong (or at lease up to the outbreak of the Second World War as far as my current research is concerned). Many similar judicial cases have been recorded in my ongoing research project, the output of which will be published in due course.

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