The jewel in China’s crown

January 05, 2021 08:31
Photo: Reuters

‘Your right to liberty ends where my nose begins’

This encapsulation of the freedom of the individual in a society has been variously rendered and attributed to a number of people, including Abraham Lincoln and Oliver Wendell Holmes.

Paraphrasing the quotation, a man’s freedom to behave is circumscribed by the necessity to acknowledge and observe an equal measure of freedom in others.

As the world moves out of 2020 and into 2021, the concept of individual freedoms is on many minds, nowhere less so than in Hong Kong.

Ideally, laws are enacted and enforced to achieve a proper balance between the freedom of the individual and the freedoms of other members of a community.

In mediaeval England, the King’s subjects were only permitted to do that which the monarch allowed. This imbalance was largely corrected by the Magna Carta which lay down a set of immutable rules aimed at preserving the dignity of the individual against untrammelled autocratic governance.

Magna Carta laid the foundations of the liberal common law, which is both a body of laws and a system for ensuring adherence to them.

Brought up on, nourished by and practising the common law, whilst mindful of its shortcomings, I believe that it provides the best regulatory system ever devised to comprehend human behaviour.

Perhaps its greatest quality is its capacity to evolve, constantly, as the courts meet and address the changing circumstances of societies transitioning, socially, economically and spiritually.

At its heart, the fundamental principles enshrined in the Maga Carta inform the development of the common law, providing the touchstone of human dignity against which judicial interpretations are measured.

At its best, it is a thing of beauty.

In terms of jurisprudential philosophy, in place of subjecting the individual to the rule of an autocrat, it is a concept to which all within its ambit are subject.

This is what we mean when we say that no-one is above the law.

Within jurisdictions subject to the common law, the leader, President, Prime Minister or whatever designation he or she enjoys, remains subject to the law in precisely the same way that it applies to the meanest member of that society.

Every member of the community has value as a human being and that value is not subordinated to the dictates of its leader or some political ideology.

Once this concept is grasped, the incompatibility of the legal system of the PRC with the Hong Kong common law system becomes manifest.

Unquestionably, the primacy of the Communist Party in mainland China enables the country to be ruled with micro-authority. Obedience is mandatory and there is no discretion to depart from strict adherence to Party dictates.

The Party is all in all supreme.

The value of the individual is only as an integral part of rule by the Party.

Given the size of the population, its geographical spread and history, it is not altogether surprising that governance has to be by force of authority rather than the consensual democratic model. The PRC is a relatively young country.

Once sovereignty over Hong Kong was recovered in 1997, it was only the genius of the one country two systems concept that permitted these two irreconcilable legal systems to be juxtaposed within the political entity that is China.

It does not demean the PRC legal system to observe that because it is alien to other legal systems throughout the majority of the world, there is a marked preference for commercial disputes to be referred for determination under Hong Kong’s judicial infrastructure.

Similarly, criminal law practice and procedure within the common law prioritises the dignity of the human being over institutions.

Key to the proper administration of the common law is a judiciary that is independent of government and owes its primary allegiance to the letter and spirit of the law rather than any political colouring.

It is trite to say that all laws are administered by human beings and to that extent such administration is subject to human error.

Within a common law system, selection of judges is by apolitical bodies who make their appointments by reference to qualitative criteria of legal knowledge, experience, judicial temperament and personal integrity.

Such appointments are not always the resounding success that perfection would demand and though nobody is perfect, by and large the selection process is successful.

Accepting a judicial appointment in Hong Kong is no bed of roses. Both the responsibility of deciding the outcome of a case and the withdrawal from the hurly burly of legal practice are isolating. It can be and often is, a lonely pursuit.

A successful barrister will take a very significant drop in income by becoming a judge and, regrettably, the community does not hold judicial office in the high standing that it deserves.

The current reprehensible fashion, particularly amongst the weaker intellect lawyers, of heaping derision on judicial decisions with which they disagree, is not only disgraceful but represents a potential cancer within the system.

Over decades of litigation experience, inevitably there have been decisions with which I have disagreed. Wherever appropriate, these were appealed against but such appeals are founded on errors of law or misperceptions of fact.

The appellate system itself recognises the inherent potential for error. That is the law’s innate process of self-regulation, submitting each decision to increasingly refined levels of analysis.

Non-lawyers and, regrettably it has to be said, a motley crew of people with legal qualifications on paper but perverted notions of legality, think it acceptable to question the integrity of judges and magistrates based on the political persuasion of this rabble of quack lawyers.

These legal sans-culottes and their mainland brothers in arms need to curb their vicious tongues lest they do irreparable damage to Hong Kong’s greatest asset.

The central government would do well to preserve the ‘Special’ element of this Administrative Region, the quality which makes Hong Kong so valuable to China: the independent judiciary administering the common law.

It is a vital organ in the great body politic of China.

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Queen's Counsel