A PROJECT WITH CONSEQUENCES: THE FUNDAMENTAL RENOVATION OF HONG KONG’S LEGAL SYSTEM[1]
Richard Cullen
During the British Hong Kong era, the Judicial Committee of the Privy Council (JCPC) in London acted as our paramount court (today replaced by the Court of Final Appeal (CFA)). In this role, the JCPC typically adhered to a society-based understanding of the operating context of the Common Law in Hong Kong.
For around 150 years these were the essential guardrails within which the law worked in British Hong Kong. This was the Common Law system which was understood and spelled out for retention in the Joint Declaration, in 1984.[2]
In 1991 we witnessed the enactment and application of the Hong Kong Bill of Rights Ordinance (BORO). This was one of the measures introduced by the British shortly prior to the 1997 handover, which aimed to build greater confidence within Hong Kong. The enactment of the BORO was the starting point of the fundamental reshaping of Hong Kong’s legal regime
Henry Litton is a retired judge of the CFA, where he first became a Permanent Judge in 1997. He published a book in 2019 entitled, Is the Hong Kong Judiciary Sleepwalking to 2047?[3] This is a very important book because of its intense, highly informed observations on the reformatting of our legal system.
Litton addresses contentious issues and takes robust positions. He has attracted a number of strong critics from the US and within Hong Kong. Most censorious are practitioners who applaud the way the role of the Judiciary in Hong Kong has been transformed over the last 30 years as it has increasingly deployed its power to run an elaborate human rights ruler over a widening range of aspects of governance and ordinances. Judicial activism is acclaimed. Some critics believe, for example, that as the HKSAR Judiciary ought to have the legal right to strike down various provisions in the new National Security Law it follows that it surely must have this legal power.[4]
The lucid gist of Litton’s arguments is arresting. A bedrock position advanced is that the Common Law we have is the Common Law of Hong Kong. In each place, the law is developed by applying long-established legal principles and understanding to concrete, fact-based disputes, which arise in and are resolved within the broad context of any given Common Law jurisdiction. Influences may be taken into account from other jurisdictions - but there is no such thing as International Common Law.
For around 150 years, prior to its enactment, the British took the view no such law as the BORO was needed in Hong Kong. Today the BORO is recognized within the Basic Law where it pairs with the rights protected in Chapter 3 of the Basic Law.
In 1992, in the Sin Yau Ming case,[5] the pronounced impact of the BORO on the previous mode of case-based decision making was signaled. In 1993, in the Lee Kwong Kut case,[6] Lord Woolf, speaking for the JCPC, foreshadowed the dangers inherent in this change, with its powerful emphasis on making the Government justify certain laws according to a complex series of judge-made proportionality tests drawn from Canadian case law. Briefly, Lord Woolf warned that the BORO could cause disputes to get out of hand and become a source of injustice if it were imposed inflexibly. He advocated that in most cases the courts should continue, essentially as before, to strike a balance between individual rights and the public interest.[7]
This penetrating warning was roundly criticized by those favouring enhanced judicial activism and the application of a paramount level of proportionality testing.[8] The critics won and their approach has gathered impressive momentum over the last several decades. These developments have assisted the project to reshape the estimable concept of judicial independence into a form of lawyer-energized, judicial supremacy. It is key aspects of this development which have drawn the most trenchant criticism from Mr Litton.
In his book, Litton has documented the erosion, in stark dismaying detail, of the previous, definitive adherence to common sense, fact-based decision-making in Hong Kong courts. This original approach, he says, has given way to massively over-argued, theory-based (not least and confusingly from the European Union) overlong legal decision-making, which, at great (usually public) cost, regularly fails to deliver fitting decisions. Much of this involves Judicial Review applications funded by Legal Aid. Lawyers lead and the judges follow, when, in fact, the judges should be saying, time and again, that there is no proper case to argue. By allowing themselves to be led, Litton contends, judges are surrendering their own judicial independence, step by step, to the lawyers arguing before them.[9] Compounding the calamity is the fact that so many of these judgments fail the translatability test – into Chinese.[10]
Moreover, judgments are regularly emerging from this process which test Beijing’s predisposition to use – or not to use - the interpretation power in Article 158 of the Basic Law.[11]
Another question implied by the analysis in this book, briefly stated, is: what has gone wrong with universalism? That is, how has it come to pass that the global project of employing highly legalized means to protect human rights (according to the doctrine of universal rights) has produced regular adverse outcomes?
I am not devaluing the importance of protecting rights. But I do wish to highlight the consequences of using very powerful, universalized legal means to secure them. No matter how well intentioned this mission may be, we need to face the reality that this project can produce significant and enduring, undesirable consequences when employed ardently, based on claimed universal norms superimposed on a material local context.
Those who strongly favour the maximum protection of universal individual rights by legal means, would say no such thing has happened and that this maximum protection will always work to secure the greater public good: individual rights are paramount and they trump other concerns in order to create a better society for all.
We can see, however, with the unfolding of the COVID pandemic, for example, that this argument does not stand up – universally. In such a medical emergency, those determined to exercise and protect their individual rights (to mingle as they wish without any mask) amplify a too often deadly health risk for the entire community. The United States, with around 13 million cases and over 260,000 deaths – and both figures rising – plainly shows how grim such adverse outcomes can swiftly become.[12]
But how truly universal is this doctrine in the first place? The modern, legalized calibration and enforcement of individual human rights is a comparatively recent formulation which was crafted, in detail, after World War II. It was purposefully labelled (by Western-focussed jurists) as a universal solution, which could – and should – be applied globally, the better to strengthen its power and legitimacy.
However, this was a Western solution to an existential crisis in Western Civilization which had developed over many centuries. The Western Roman Empire made Christianity, headquartered in Rome, the official State Religion in 380 AD. After that empire broke up about 100 years later, Europe steadily separated into an outsized number of feudal Kingdoms which regularly spent much time at war with one another. This level of warfare intensified immensely after the profound 16th century split in the Roman Catholic Church at the time of the Protestant Reformation (subsequent to Europe’s intellectual Renaissance). The blood-letting which followed was staggering in scope and savagery.[13]
The warfare continued as the Age of European Discovery and Imperialism began, with both discovery and warfare spurred on by remarkable breakthroughs in scientific and general understanding, as the Reformation gave way to the Enlightenment and then to the Industrial Revolution.[14]
The crisis at the heart of Western Civilization truly came to head, however, in the 20th century: first with World War I and then, most horrifically, with World War II. The Nazi German regime systematically murdered over 6 million people for being Jewish or otherwise sub-human according to contemptible Nazi precepts.[15]
How could Western Civilization, which had produced such extraordinary, world-changing art, literature, science and technology and the Enlightenment, descend to such a hideous level of mass human depravity? And what could be done to stop this ever happening again? A number of commendable measures were advanced to address this crisis, including the creation of the United Nations - and the formation of the modern doctrine of international human rights.
It is true that the US had long had a system of legalized rights protection in its constitutional Bill of Rights, since its ratification in 1791. The impact of that Bill was, until after World War II, very limited, however. The US had, for example, maintained a system, endorsed by the US Supreme Court, of highly discriminatory and often cruel segregation for Black Americans for around 100 years after the Civil War ended slavery in America: the Bill of Rights offered scant protection to these Americans.[16]
The authoritative impact of the US Bill of Rights did, however, lift conspicuously by the 1960s as the Civil Rights movement gained robust political leverage.[17] And its legalized framework, - allowing for judicial enforcement of widely binding superior court decisions - provided the model for new, substantially legalized rights protection regimes in, for example, Canada, Western Europe, the UK, New Zealand – and, from 1991, Hong Kong. All these systems speak of universal rights which, according to leading practitioners, must be shaped in their definition and enforcement by international human rights law, drawn from Civil Law and Common Law jurisdictions, worldwide.[18]
The English political philosopher, John Gray in his book Black Mass (2007) argues, with great force, that US-led, Missionary Liberalism insists that human rights are both universal – and must be universally respected.[19] They override the claims of Sovereign States. Gray, relying on a comprehensive historical-philosophical analysis, argues, in brief, that what he calls Liberal Imperialism has profound roots - along with far more savage, revolutionary movements like Nazism - in Western Enlightenment beliefs in the human capacity to guide and remake society, which in turn derive from earlier Judeo-Christian beliefs in apocalyptic (end of the world) cleansing and remaking or less drastic, early religious theories of utopian, societal recreation. Gray quotes George Santayana, the Spanish-American philosopher, who acutely noted how “Arrogance, fanaticism, meddlesomeness, and imperialism may masquerade as philanthropy.”[20]
Apart from these deep concerns about the downside influence of doctrinaire, utopian social reformation theories sourced from within Enlightenment thinking and the particular, extended, very bloody, Western history underpinning the origins of the modern human rights doctrine, practical concerns also arise. A crucial operational flaw in the doctrine of international rights (recognized by Lord Woolf) is that, while it insists on an internationalized measure of acceptable legalization and protection, it provides very poor articulation of what to do when the exercise of certain rights by some has a grave impact on the rights of others, as regularly happens. This was a problem grimly encountered in Hong Kong in 2019. As an American academic recently noted, freedom from fear is the most basic of all freedoms. [21] This freedom, massively displaced in 2019, had been a singular hallmark of life in Hong Kong for decades before then.[22]
Next there is the problem that, once a highly developed legalized human rights regime puts down serious roots in a given (especially Common Law) jurisdiction, one can expect lawyers to briskly put this regime to work. The prominent Canadian legal scholar, Michael Mandel, sharply noted the dangers arising from the “legalization of politics” in his principal book on the Canadian Charter of Rights. He characterized that document as “a dripping roast for lawyers”.[23]
Hong Kong today provides measurable confirmation of Mandel’s insights. In short, Henry Litton makes a compelling case that the re-shaping of how the Common Law operates is bad for the HKSAR at two crucial levels. First, the practical, fact-based functionality of the law has been seriously compromised. Litton concludes his book by arguing that abstract principles of law derived from foreign jurisprudence have crushed the simple logic of the Common Law in Hong Kong.[24]
Secondly, and more importantly, this Hong Kong incubated, adverse development of the law, shepherded by the Judiciary, poses a visible threat to the prospects of retaining the full essence of Hong Kong’s remarkable Common Law heritage over the long-term, well beyond 2047. Litton argues that collectively these vicissitudes spell “disaster as June 2047 gets ever closer.”[25]
The way in which these profound changes in the operation of the Hong Kong legal system have been animated by the global project to advance the deployment of vigorously legalized, international human rights regimes is also plain to see.
Henry Litton poses a crucial question in the title of his book: is the judiciary sleepwalking to 2047? He also introduces a pivotal question in the first chapter of his book: “The Basic Law gives effect to the ‘One Country Two Systems’ policy of the PRC which has held good for over twenty years: until the Hong Kong Judiciary itself, bit by bit, surrenders part of Hong Kong’s autonomy. Is this an exercise of judicial independence, or is it the betrayal of a constitutional trust?”[26]
Hong Kong needs, today, to pay careful attention to both these questions – not least as the US pursues a policy of intensifying confrontation with China. This broader, grim geopolitical context cannot be ignored.[27] It may be time (notwithstanding George Bernard Shaw’s caveat[28]) for the application of some brute sanity.
[1] A short, earlier version of this review-article, entitled, “Is Hong Kong Judiciary sleepwalking to 2047 and beyond?”, was published in the China Daily, November 4, 2020.
[2] Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong – signed December 19, 1984.
[3] Litton, Henry, Is the Hong Kong Judiciary Sleepwalking to 2047? (Sherriff Books, Hong Kong, 2019) (hereinafter, Sleepwalking).
[4] See, for example, Cohen, Jerry, “Henry Litton’s Attack on Hong Kong Courts”, October 9, 2020, available at: http://www.jeromecohen.net/jerrys-blog/2020/10/9/henry-littons-attack-on-hk-courts
[5] R v Sin Yau Ming [1992] 1 HKCLR, 127.
[6] Attorney-General of Hong Kong v Lee Kwong Kut (1993) AC 951.
[7] Ibid. The essence of what Lord Woolf said was that,, while the Hong Kong judiciary should be zealous in upholding an individual’s rights, it was also necessary that disputes as to the effect of the BORO not be allowed to get out of hand. He added that, in order to maintain the balance between the rights of the individual and the public interest, rigid and inflexible standards should not be imposed on attempts to resolve the difficult and intransigent problems with which society is faced when dealing with serious crime. He also stressed the importance of local context and cautioned against using the complex proportionality test borrowed from Canada – which so strongly emphasizes individual rights - in most cases.
[8] A leading, powerfully argued example, is, Ghai, Yash, “Sentinels of Liberty or Woolf in Sheep’s Clothing? Judicial Politics and the Hong Kong Bill of Rights” (!997) Modern Law Review 459.
[9] Sleepwalking, 45.
[10] Sleepwalking, 25.
[11] Cheung, Tony, Zheng, William and Cheung, Gary, “’No other authority has right to make judgments’: China slams Hong Kong court’s ruling on anti-mask law as unconstitutional”, South China Morning Post, November 19, 2019, available at: https://www.scmp.com/news/hong-kong/politics/article/3038325/hong-kong-judges-slammed-chinas-top-legislative-body.
[12] See, for example, Paz, Christian, “All the President’s Lies About the Coronavirus”, The Atlantic, November 2, 2020, available at https://www.theatlantic.com/politics/archive/2020/11/trumps-lies-about-coronavirus/608647/.
[13] Gray, John, Black Mass (Penguin, London, 2007) 261.
[14] Ibid., Chapter 1, The Death of Utopia.
[15] Ibid., 89 ff.
[16] In Plessy v Ferguson (1896) 163 US 537, the US Supreme Court, in a 7:1 decision, approved a Louisiana State segregation law on the basis of the court’s “separate but equal” doctrine. This was not overturned until 1954, in Brown v Board of Education (1954) 37 US 483.
[17] See Brown v Board of Education (1954) 37 US 483 and subsequent cases.
[18] See, for example, Diakonia International Humanitarian Law Centre, International Human Rights Law, available at: https://www.diakonia.se/en/IHL/The-Law/International-Law1/International-Human-Rights-Law/.
[19] Gray, John, Black Mass (Penguin, London, 2007) 228. A.S. Byatt calls this work, “wise, furious and informative.”
[20] Ibid.
[21] Tiezzi, Joanna, “Victoria Hui on Hong Kong’s Troubled Future”, The Diplomat, June 3, 2020, available at: https://thediplomat.com/2020/06/victoria-hui-on-hong-kongs-troubled-future/.
[22] Cullen, Richard, Hong Kong Constitutionalism: The British Legacy and the Chinese Future (Routledge, Abingdon, 2020, Chapter 7.
[23] Mandel, Michael, The Charter of Rights and the Legalization of Politics (Thompson Educational, Toronto, 1994).
[24] Sleepwalking, 212.
[25] Ibid.
[26] Sleepwalking, 69.
[27] See, for example: Editorial Board, “Stopping the descent into a new cold war”, Financial Times, October 9, 2020, available at: https://www.ft.com/content/7f3b6965-94fb-41df-9fa8-25ce655192fa; Trevelyan, Laura, “Is the world entering a new Cold War?” BBC News, September 22, 2020, available at: https://www.bbc.com/news/world-us-canada-54244011; and Klare, Michael, “The New Cold War Is a Lot More Dangerous Than the Old”, Foreign Policy in Focus, November 1, 2018, available at: https://fpif.org/the-new-cold-war-is-a-lot-more-dangerous-than-the-old/.
[28] Shaw observed that: “Reformers have the idea that change can be achieved by brute sanity”, available at: www.quoteslyfe.com.
It seems unfortunate that Richard Cullen and presumably Henry Litton want to use a 19th Century orientalist argument to undermine the entire body of human rights protections developed in the 20th century. To assume that Hong Kong judges are peculiarly unsuited to implement the human rights guarantees promised in the ICCPR, the Basic Law and the BORO seems a bit of a stretch.
ReplyDeleteThe continuation of the Common Law methodology of judicial reasoning is an arch feature of One Country Two Systems. We have witnessed that frontal attacks and subterranean sabotage of the One Country Two Systems has been taking place. The recurrent use of Article 158 of the Basic Law to defeat any judgments which are not favored by the Chinese Communist Party is a potent way to undermine the Common Law system.
ReplyDeleteHenry Litton followed "Is the Hong Kong Judiciary Sleepwalking to 2047?" with "Can Freedom and Liberal Values Thrive if Common Law Crumbles?", also published in Hong Kong by Sherriff Books.
ReplyDeleteA third may well be on the way: "The Dance of Folly."