Ignoble ease

Neville Sarony June 27, 2022 08:43

There is no shortage of commentators, both lawyers and lay people, who feel entitled to criticize Hong Kong’s legal community for what these observers assert is a failure to stand up for the liberal rule of law.

One such is the American lawyer Samuel Bickett who, in my opinion, has turned his bile unfairly on the current Chairman of the Hong Kong Bar Association.

It is a basic legal principle that one does not venture an opinion without being in full possession of the facts, something Mr.Bickett and his ilk would do well to keep in mind before sounding off in print.

Some of the critics are lawyers but all of them are beyond the reach of any of the law enforcement bodies who might take offence at the content of these published criticisms.

Then there are the British Supreme Court judges who, at the behest of two of Boris Johnson’s coterie of self-serving ministers, resigned from their posts as Non-Permanent Judges of Hong Kong’s Court of Final Appeal lest “they appear to endorse an administration which has departed from values of political freedom, and freedom of expression...”

Before allowing these rushes of blood to the head, rational and reasonable people should give careful thought to the impact that their pronouncements have on the members of the legal profession who remain within the curtilage of Hong Kong’s laws.

In an interview on CBC/Radio Canada on 17 June 2022 the retired Canadian Chief Justice Beverley McLachlin provided a striking and timely exposition on the necessity for the presence of the overseas judges on Hong Kong’s Court of Appeal.

Those familiar with Justice McLachlin’s judgments will be familiar with their intellectual rigour and the torch that she bears for the dignity and freedom of the individual.

No-one would regard her as one who would jeopordise the values of political freedom and freedom of expression.

Addressing the bull issue squarely, she pointed out that the CFA judges would reach their decision on a National Security Law case in accordance with the time-honoured traditions of the common law but that if there was an irreconcilable conflict, they would resign.

How do the observations of those comfortably seated overseas critics impact on the members of Hong Kong’s legal profession endeavoring to ply their trade according to the established principles of the liberal common law?

It is a fact that various of the provisions of the National Security Law are irreconcilable with the common law that was carried forward and scrupulously observed and maintained from pre-July 1997 Hong Kong into the Special Administrative Region of the People’s Republic of China, under the One Country Two Systems genius devised by Deng Xiaoping.

The Chinese central government’s perception and the hard, legal fact is that as the sovereign power, it can impose any law on Hong Kong that it wishes to.

There remains the residual legal argument whether certain of the National Security Law’s provisions conflict with Hong Kong’s constitutional instrument, the Basic Law, issues that will have to be determined by the Court of Final Appeal.

In turn, the CFA’s decision will be subject to interpretation by the Standing Committee of the National People’s Congress. In other words, the ultimate decision-making body is political rather than judicial.

Therein lies the basic dilemma of the common lawyer because China regards the Executive, the Administration and the Judiciary as one indivisible entity.

But that point has not yet been reached.

Moreover, by far the greater preponderance of laws in Hong Kong have nothing whatsoever to do with the National Security Law.

So, yes, the legal fraternity works day to day balancing all the legal issues in a schizophrenic system, carefully eschewing Jekyll and Hyde characterizations.

Doubtless all the overseas commentators believe that they are acting in Hong Kong’s best interests but all that they are achieving is to stir a hornet’s nest of incandescent rage at what is seen as foreign interference.

None of Hong Kong’s genuine common law practitioners have abandoned or tempered their fundamental principles. But the dictates of a reality that must contend with overwhelming power oblige us to commend Milton’s Paradise Lost to the critics of Hong Kong’s legal community.

Belial, the fallen angel’s counsel of ‘ignoble ease’ was to try to persuade others to be more discreet so that unacceptable behaviour is less conspicuous.

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Neville Sarony

King's Counsel