Judge for yourself

June 15, 2021 08:52
Photo: Hong Kong Court of Final Appeal

‘Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary” (Niebuhr)

One measure of the legacy of a Chief Justice of Hong Kong is the quality of those whom he persuades to accept a judicial appointment.

Within Hong Kong’s domestic environment that means persuading barristers to give up a lucrative practice at the Bar for the benefit of the community at large.

In terms of the Court of Final Appeal (CFA) persuading the common law world’s Supreme Courts to consent to their brightest and best to serve a stint here in Hong Kong.

On this scale, ex-Chief Justice Geoffrey Ma hit the jackpot with the accession of past President of the UK Supreme Court Baroness Brenda Hale and past Chief Justice Beverley McLachlin of the Canadian Supreme Court.

Both judges are acknowledged, internationally, to be outstanding jurists and, as a bonus, they are the first women to be appointed to the Court of Final Appeal.

Each of these ladies delivered a number of ground-breaking judgments in their respective jurisdictions, each of which contributed to the world-wide development of the common law.

Justice McLachlin’s judgment in the case of Bazley v Curry rescued the concept of an employer’s vicarious liability for the torts of employees out of the almost unworkably opaque Salmond test and into the twenty-first century concept of “close connection”.

In the course of that definitive judgment she recognised the public policy dimensions of attributing responsibility, wherever practicable, to those who create a risk and have the wherewithal to provide compensation to someone injured when the risk materialises.

To many lawyers stultified in the strait jacket of narrow legal concepts, Beverley McLachlin’s innovative ‘close connection’ test was anathema, some would even say heresy.

Yet the glory of the common law is its capacity, in the hands of visionary judges, to change to meet the exigencies of the times. I think of them as chameleon judgments because of their capacity to adapt to changing circumstances.

I appreciate that it is derogatory but it has to be said that little judicial minds, of which, unfortunately, we have a surfeit, are anathema to progress.

What then, of Lady Brenda Hale? Just to read her judgments is an inspiration. Grounded in common sense and practicality, they are lucidly expounded in language that is the envy of any professional writer.

Her favourite judgment was handed down on 24 September 2019 when she pronounced that “The prime minister’s advice to her majesty was unlawful, void and of no effect… The prorogation was also void and of no effect. Parliament has not been prorogued.”

Though the judgment was that of all 11 Supreme Court judges, its forthright delivery bore the linguistic hallmark of Lady Hale and deflated the tufty haired balloon Boris Johnson down to the size of a shrivelled condom.

Though the United Kingdom does not have a constitution as such, its constitutional framework is derived from a succession of Acts and on this occasion the Supreme Court found the answer in the provision of the 1701 Act of Settlement that mandates that parliament give its consent to any decision of the sovereign, exercised through her ministers.

That same Act also established the independence of the judiciary.

Both the ‘close connection’ test and the application of insistence on parliamentary approval for any major constitutional act of the executive, exemplify judicial lateral thinking, without which the law would atrophy and wither away for lack of relevance.

Consequently, I was profoundly depressed to learn that Lady Hale had declined the invitation to serve on the Court of Final Appeal after her current appointment expires.

I do not expect the bone-headed politicians and nit-brained so-called lawyers-cum legislators who demand an end to the appointment of Non-Permanent Judges of the Court of Final Appeal (NPJs) from the UK, Australia, Canada and New Zealand, to appreciate the priceless value that these jurists bring to the CFA.

It has been Hong Kong’s great good fortune that all these common law Supreme Courts have generously spared the very finest of their judicial minds to add their expertise and experience to the decisions of the S.A.R’s top court.

What Hong Kong’s loud-mouthed loons fail to understand is that the overseas NPJ’s add a priceless jewel of dimension to the CFA’s deliberations, often providing the dynamic that informs its decisions. The composition of the court is unique in the common law world.

In this respect, the Basic Law incorporated the frequent practice of the Judicial Committee of the Privy Council which often included a commonwealth judge on its panel during the time when it was the final court of appeal for most jurisdictions in the commonwealth.

What appears to have eluded the retarded minds that currently lay siege to Hong Kong’s system of justice is that Hong Kong’s greatest attraction is its independent, common law judiciary.

International Mercantile Law is, to all intents and purposes, the common law.
Most probably, the majority of commercial agreements both internationally and regionally are drafted in common law terms.

Hong Kong’s single greatest asset is its common law system of justice and independent judiciary. Meddle with either and China loses its one judicial forum which enjoys universal confidence and respect.

The overseas NPJs, contribute their hallmark judicial integrity, experience and jurisprudential intellect to inform the CFA’s decisions.

Logic dictates that any detraction from the integrity of Hong Kong’s judicial system diminishes both the role and perception of China in the eyes of the commercial world.

Hong Kong’s excuse for a government and its rubber stamp legislature would do well to ponder this, ere it promulgates any more incursions into the validity of Hong Kong’s common law, because the overseas NPJs are certainly not going to lend themselves to legitimising laws which derogate from or, worse, contradict, fundamental principles of justice.

-- Contact us at [email protected]

King's Counsel