“First, let’s kill all the lawyers”

September 07, 2020 08:07
Photo: Reuters

First kill all the judges, appears to be retired Court of Final Appeal Judge Henry Litton’s solution to Hong Kong’s ills.

However, his perspective, is part and parcel of what he describes as Beijing’s ongoing resurrection of its central role as “undisputed economic and cultural centre of the world”.

Whereas other civilisations might well take issue with this historical assessment, it does make crystal clear Henry Litton’s standpoint.

To dispel any lingering doubt, how, in the name of all that’s holy, can one say, without the words curdling in your mouth, that “Beijing has not deviated from the course set for Hong Kong.”

I must make sure I never give the helm of my boat to him.

Aside from the predigested propogandist blather, the article in the South China Morning Post only evidences discombobulating mental confusion.

The basic proposition is that Hong Kong’s judges have lost the confidence of the central government and that, so the argument goes, is why selection of judges to hear National Security Laws will be done by the Chief Executive and not, as under Article 88 on the recommendation of an independent commission.

How silly of me, I thought it was to give effect to Beijing’s wish-list that our judges be answerable to the Administration and by such a device, subject to the supervision of the central government.

No wonder all Hong Kong’s air-head communist lawyers are rushing round screaming that there is no such thing as a separation of powers in Hong Kong.

What of the statement that Hong Kong’s judiciary is steeped in “obscure norms and values from overseas” that are “totally unsuited to Hong Kong’s circumstances”?

Is the independent judiciary, so envied by foreign jurisdictions, one of these obscure norms?

As with so much else in his insidious little rant, none of these “obscure norms or values from overseas” are identified. It reminds one of C.Y. Leung’s claim that foreign interests were behind the local umbrella movement, figments of the self-deluding whimsy of their proponents.

Indeed, it would be impossible to identify such aberrant norms or values whilst at the same time acknowledging, as the Basic Law unequivocally does, that Hong Kong is a common law jurisdiction.

Like an accomplished verbal illusionist, bouquets of legal cases are magiced from nowhere; hurled up into the air as they are named “The Zuhai Bridge Case” “The Congo sovereignty Case” the Legco oath-taking case” and “the West Kowloon rail terminus case”.

But just when you expect to hear what specific aspect of these cases excite such fury, the article moves on to its central theme, that the courts have subordinated the common good to assertions of personal right. “The common good” is not defined.

If not the courts, who will assert the right of the individual against the state?

It is deeply saddening that a man who sincerely believes what he says, propounds a state of affairs that resonates with Joseph Kafka’s portrayal of a man who finds himself on trial for the offence of not accepting the guilt inherent in being a human.

In his indictment of the Hong Kong judiciary, he avers that they have helped to create the social environment leading, as he puts it, “to the mayhem wrought on the streets over past years”.

But as any advocate knows, a submission lacking evidential substance, falls on deaf ears.

Of the four legal bouquets, only the Congo sovereignty case involves speeches which, albeit in the minority, question the jurisprudential integrity of the central government’s monopoly on interpretation.

The dissenting speeches were a fine legal argument, too lengthy to be briefly restated here but one which needed to be articulated, about how to interpret the law about who interprets what?

The Basic Law is often referred to as Hong Kong’s mini-constitution. But its articles address a far wider range of topics than just constitutional matters such as the hierarchical anatomy of the Special Adminstrative Region.

Article 33 states that all citizens are equal before the law and that the state shall respect and protect human rights.

Article 36 provides that personal freedom shall not be violated.

That being the case, what is one to make of the assertion that “every time the judges apply the Basic Law, potentially they make a dent in Hong Kong’s high degree of autonomy because” so the argument goes, “the final power of interpretation lies with Beijing”.

The argument simply does not add up, or as we lawyers say, it is a non sequitur unless, that is, it is intended to mean that ‘equality before the law’ and ‘freedom’ can only be interpreted by Beijing.

The allegation that Hong Kong lawyers have “developed an alarming blindness to realities on the ground” brings to mind visions of armour-clad police riot squads violently and gratuitously beating youngsters in shorts and t-shirts, whilst a Carrie Lam voice-over is saying that there has been no abuse of police powers.

In an almost paranoid attack on Hong Kong’s lawyers, the claim is that the courts have “allowed lawyers to play forensic games, using articles of the Basic Law as weapons to strike at government institutions.”

Henry Litton’s antipathy to the process of Judicially Reviewing administrative decisions is well known.

Judicial Review or JR, is the only effective means by which the legitimacy of government actions and decisions can be challenged.

The hurdles to be overcome for a JR to succeed are set very high and involve a first stage of securing leave to apply, at which a very large number of such applications fall.

Broadly speaking, an applicant must show that there has been a failure to observe the rules of natural justice, or that the decision is one that no right minded decision maker, properly informed, could possibly have reached, a test that verges on proving that it was crazy.

JR is the most important means of redress against abuse of power even in a liberal democracy such as the United Kingdom, where administrations are answerable to parliament.

How much more important then, in a jurisdiction in which the legislative council is gerrymandered to give a majority to one side; who else can hold the administration to account?

The article poses the rhetorical question “Is the common law system fit for purpose in Hong Kong?”

This fulminating froth of venom against Hong Kong’s judiciary is singularly empty of any substance to prove that it is not.

That a once fine judicial mind should lend itself to this unworthy political platform is cause for anger, sadness and alarm.

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King's Counsel