Wednesday, December 15, 2021

Former Chief Justice of Hong Kong Addresses Graduating Class of 2021 (HKU Law)

Vice President and Pro-Vice Chancellor, Dean of the Faculty of Law, Distinguished Guests, Professors, Graduands, Ladies and Gentlemen, it is a great honour to be asked to say a few words at today’s Convocation.  The main purpose of these proceedings is the conferment of degrees and to wish many well-deserved congratulations to the graduands, soon to be graduates, from the Faculty of Law.  Please allow me first to offer you my warmest congratulations; you have all made great achievements.
     This is of course a proud day for you, your family, loved ones and your friends.  It is, however, also a particularly significant one for the community for the simple, but indisputable, reason that it is you who represent the future of that cornerstone of the community that is the rule of law.  This is your responsibility and, now more than ever before, the community looks to you for guidance, because if lawyers do not understand or cannot articulate the meaning of the rule of law, there would be cause for concern.  What follows are some brief ideas that I hope will encourage you to think more about the rule of law and to enable you to explain to others what it means.
     A society that has as fundamental characteristics the four pillars of fairness, respect, tolerance and compromise is one that is rooted in the rule of law.  These four pillars represent the law both in theory and in practice, and the very definition of justice itself is contained in these four concepts. I emphasise that although the law of course involves the use of the tools of reason, theory and concept, it is not a discipline similar to philosophy or metaphysics: the law and the way that it works in practice (also known as the administration of justice) are extremely relevant, indeed crucial, to the way a community can properly function.  We easily see this in the daily work of the courts: criminal trials, the resolution of civil disputes, the handling of family problems.  There is no clearer demonstration of the concept that the content of the law indeed follows society.
     But the opposite is also true: that society reflects the law.  Here, what is meant is not so much that the content of society’s norms matches that of individual laws (in truth, this potential “chicken and egg” conundrum is perhaps answered by taking the view that the content of laws is dictated by the needs of society).  Rather, the notion that society reflects the law is really another way of focusing one’s attention on whether there exists in a society what we call the rule of law.  The practical significance of the rule of law in any society is the identification of the different facets of the operation of the law (such as its contents, its enforcement, the involvement of the main players in its administration among others) and then to test its integrity against reality.
     The rule of law and its importance to our community in Hong Kong should always be uppermost in the minds of those who are versed in the law, and whatever your future involvement in it, whether as legal practitioners or otherwise, this is something you must always think about and be prepared to talk about.  I have realised in my nearly 50 years involvement in the law (from beginning my studies until now) that the rule of law is worth discussing and standing up for.
     I have long maintained that it is incumbent on us as lawyers to promote in the community a proper understanding of the rule of law, given its vital importance.  It is of critical importance that all of you today firmly grasp the importance of the law and fully understand it.  If you were asked to explain the rule of law, what should you say?  One starts with fundamentals.  The fundamentals of the rule of law boil down to the existence and recognition of the rights and freedoms of members of a community, and their enforcement by an independent judiciary.  It is, however, important to remember that at the heart of the rule of law is not only a recognition of the rights of the individual but an acknowledgment of the rights of others.  We can thus see a direct link between the rule of law and the concept of a sense of community.
     It is impossible to begin to evaluate the rule of law in Hong Kong in a vacuum.  It can only be understood in context and the starting point here must be the Basic Law, the constitutional document that provides a blueprint for Hong Kong.[1] The Basic Law does not just set out guaranteed rights and freedoms.  It also contains provisions dealing with the legal system (the common law system), the structure of the courts, the legal profession, the qualification of judges etc.  You are all familiar with the Basic Law but I would like to lay emphasis on the concept of an independent judiciary contained in it; this is iterated and reiterated in three articles.[2] It is worthwhile spending a little time reflecting on this concept, for the independence of the judiciary is nowadays much discussed but quite often not fully understood.  This concept is directly relevant to all of you who will become lawyers: lawyers are officers of the court and owe duties to the administration of justice. 
     In discussing the independence of the judiciary, we must look at the matter holistically.  The infrastructure of Hong Kong’s legal system -that is, the position on paper- is easily identifiable: it is contained in the Basic Law and in our statutes and, fulfilling one of the requirements of the rule of law, they are accessible to the public.  But just as important as the infrastructure, one must also analyse arguably the more important question of whether the reality matches the theory.  Thus, for example, one must ask just how real and effective are the rights and freedoms, and the principles and institutions referred to in and mandated by the Basic Law?  It is by undergoing such analysis and asking these questions that one begins to, as I have earlier put it, test the integrity of the rule of law in Hong Kong.
     The real test of whether reality matches the theory is to see how the courts actually deal with the day-to-day business of adjudicating disputes, how they discharge in practice their constitutional responsibilities and just how transparent their work is.  In this context, the type of case that often provides useful case studies are those cases that engage the public interest, such as public law cases.  Public law cases provide perhaps the best examples because very often, they involve controversial issues where the court is faced with a number of diametrically opposite views, each of which is passionately held and all of which may appear to be entirely reasonable.  In most other areas of the law, the answer to a legal problem is often fairly clearcut, even though getting there may at times be complex.  In the area of public law, however, and in particular cases which involve issues of constitutional importance, very often the interest of the public in general is engaged.  Here, the views of the public (and I include here the government as well) will be as diverse as the society itself in which the legal dispute before the court originates.
     The way in which courts deal with such issues – and I am not here referring to the actual result of any litigation – is critical.  It is critical because the way in which a court approaches such cases – its methodology and most important of all, its reasoning – will demonstrate whether those principles which provide the foundation of our legal system, have been applied.
     Here, an independent judiciary is key.  The concept of the independence of the judiciary is of course not a political concept or theory.  Rather, it is the embodiment of the judicial approach and indeed of the administration of justice itself.  The meaning of an independent judiciary is reflected in the Judicial Oath taken by judges.  The precise words may differ from jurisdiction to jurisdiction but the effect is the same.  In Hong Kong, the Judicial Oath requires each judge to adhere to the law in discharge of their duties.  Judges are required “to act in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self interest or deceit”.  You may think it unnecessary to dwell on this for it is so obvious but it is not necessarily evident to some people and it therefore becomes necessary to be constantly reminded of it.  The fundamental starting point of the judicial approach is equality.  When judges decide cases, of course the parties before them matter (after all they are the reason for the litigation in the first place) but their identities, and their status (even if or especially if they are the government) do not.  All are equal before the law; no one is above it.
     Many of you who graduate today will no doubt, particularly in a commercial centre like Hong Kong, become commercial lawyers.  However, in serving commerce and the business community, is it relevant to talk about the rule of law ?  After all, commercial law is surely more about commercial principles and certainty rather than the application of vague constitutional concepts? The link between economic considerations on a local and global scale (meaning business, trade and investment) and the rule of law may not at first sight be easy to grasp.  Many only see the link in somewhat narrow terms; that the relevance of the rule of law to economics is merely the existence of an economic or business friendly legal environment.  Accordingly, a jurisdiction that had the rule of law was one in which laws were certain and where the law complemented economic activities.  Characteristics of such jurisdictions would then include the following:-
     (1) Sound commercial principles developed by the courts which not only determined in a just way disputes between parties at odds with one another but also which provided invaluable precedents to guide the way commercial people should conduct their affairs
     (2) Statute and laws relevant to business are publicly made and accessible.
     (3) The existence of courts which meet the needs of the business community so that, in the words of Devlin J (later Lord Devlin), the courts “may solve the disputes of commercial [persons] in a way which they understand and appreciated.”[3]   
     (4) Further, not only should there exist a sophisticated court structure for the effective resolution of commercial disputes, there should also be in tandem alternative forms of dispute resolution.  Arbitration and mediation are the principal institutions in this regard.
     So far, in terms of legal philosophy, what I have just articulated accords broadly speaking with what many call the “thin type” of the rule of law.  However, is this really the full extent of what we in society, or even only the business community or international investors, expect from the rule of law?  Well, I suppose that just as there will be different types of businesspersons or investors (some are short term speculators, others medium term, still some others into long term investments), different points of view will be held.  But this is an unsatisfactory answer and really provides very little insight into the question I have just posed.  My own belief is that any place where businesspersons, traders and investors are to be found, must have a sound legal foundation.  Such legal foundation clearly means the existence of the rule of law in the relevant place.  And the rule of law in this context means primarily the existence of those fundamentals I have earlier identified.  But why is this so important for commerce and business?  The answer lies in the fact that commerce, business and the investment that goes with them require a sound legal foundation to be in place.  The legal system then assumes immense importance.  In a jurisdiction like Hong Kong where the principle of equality before the law is a key concept, due recognition of this in reality will inevitably promote economic development and investment.  All who deal in commerce and business wish to be treated equally when it comes to the enforcement of legal rights.  Being treated in an arbitrary way is the exact opposite to being treated equally.  Being treated arbitrarily is the exact reverse of what the rule of law seeks to achieve.
     As you enter a new and exciting chapter in your lives, there is much to look forward to and I, together with many others, wish you much success and happiness.  But always remember that apart from yourselves and your families, you are also a part of the community.  Take pride in our community and in turn the community will be proud of you.  Once again, I offer all of you my warmest congratulations.

[1] Its full title is the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. And, as the Preamble states, the document ensures the implementation of the basic policies of the PRC regarding Hong Kong.
[2] Articles 2, 19 and 85.
[3] St John Shipping Corporation v Joseph Rank Ltd [1957] QB 267, at 289.

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