Over the hill and over the top

March 01, 2022 10:47
Photo: HKCFA

As barrister practising in Hong Kong, I find it offensive that a has-been-who-never-was ex-politician is given space to publish his blinkered opinion in The Times of 7th February 2022 that British Supreme Court judges should no longer sit in Hong Kong’s Court of Final Appeal.

Someone who professes to be a historian should first ensure that he gets his facts correct.

Contrary to William Hague’s claim, the Bill to pass a law that would enable Hong Kongers to be extradited for trial in mainland China was never passed into law, the protest saw it off.

The incredible, peaceful protest by over 1 million people in Hong Kong which William Hague says he witnessed, persuaded the government, albeit reluctantly and far too late, to withdraw the Bill.

The ultimate irony is that, sadly, elements of the protest degenerated into gratuitous violence with the result that the central government imposed the draconian National Security Law.

Nevertheless, Lord Hague’s statement that “the law in Hong Kong is now at the service of arbitrary and dictatorial government” is, as with most generalisations, gravely inaccurate.

There are two parallel systems of law now operative in Hong Kong, the pre-existing liberal common law and, like a narrow slice in a rich cake, the National Security Law.

The former system evolved over centuries, the latter is newly born and substantially unformed.

The two systems are seriously incompatible and whether or not one agrees with the National Security Law it enjoys the same measure of constitutionality as the common law alongside which it sits.

Lord Hague stoops even lower when he asserts that the Commonwealth judges on the Court of Final Appeal are willing participants in a legal framework that permits the ransacking of newspaper offices, destroys personal freedoms and subjects people to arbitrary arrest.

Then, as though Hong Kong’s lawyers are somehow complicit in this wholesale attack on personal liberty, one can almost see his lip curling as he observes contemptuously that, of course the legal community in Hong Kong welcomes the continued role of British judges and asks rhetorically “we’re still going to send our judges over because it’s comforting to the legal community?”

Such criticism is a calumny on all those members of the judiciary and barristers and solicitors who continue to uphold the fundamental tenets of the traditional common law system, many of whom are, to the very best of their ability, defending those charged with NSL offences.

Logically, Hague’s solution is that all the common law judges, barristers and solicitors should abandon Hong Kong lest they be characterized as complicit in the degradation of the judicial system.

If every lawyer who disagreed with the law simply abandoned the profession, who would be left to protect the interests of those who are subjected to abuse of power?

With that disregard for accuracy that we associate both with politicians and totalitarian propagandists, in a quantum leap of ignorance Lord Hague proclaims that there cannot be an independent judiciary in Hong Kong under the current legal regimen.

Seen in the big picture, the National Security Law is a very small component of Hong Kong’s legal system, albeit currently it enjoys a disproportionate amount of press attention.

Many Hong Kong lawyers are uncomfortable with the grafting of a branch of the mainland’s system of law onto what previously was a wholly common law jurisdiction, believing that this is not what was intended when the one country two systems concept was devised.

Nevertheless, to date, the Court of Final Appeal has only heard one case brought under the provisions of the National Security Law and this was determined in accordance with common law principles of interpretation.

If and when that Court has to determine a substantive case under the National Security Law, there is the possibility that the conflict between the two systems – which were never intended to operate in parallel – will have to be resolved. As the NSL is in its infancy, the court will have to approach the issue by reference to the common law principles of interpretation.

In the event that the central government disagrees with the outcome, it has power under Hong Kong’s constitution to render its own interpretation and overturn the Court’s decision. That may well prove to be a defining moment for any of the judges in the Court of Final Appeal.

Meanwhile, the vast preponderance of cases heard in Hong Kong’s courts are conducted in accordance with the traditional common law principles with which the courts are all familiar, untainted by political considerations.

In the meantime, these gratuitous attacks on Hong Kong’s judiciary and lawyers should cease. Though I am happy to take up the cudgels on behalf of the legal practitioners, only a coward attacks people who, like the judges in question, cannot defend themselves.

When push comes to shove, in deciding whether or not what they are required to do is unconscionable, each lawyer, whether jurist or practitioner will be guided by his or her innate sense of right and wrong,

The sophistication of the CFA’s decisions on such matters as corporate and commercial law, probate, professional negligence, personal injury and general crime reflect the keen intellectual analysis and breadth of experience and expertise that the commonwealth judges bring to its deliberations. Practising lawyers recognise that the contribution of the overseas judges is invaluable.

Hague’s assertion that it is a political question rather than a legal one is a prime example of the risk we run if politicians are to be permitted to meddle in judicial appointments.

Given that Lord Hague was once leader of the Conservative Party which is now headed by a blathering buffoon of a Prime Minister – a post to which Lord Hague once aspired i.e, PM not blathering buffoon– a mendacious narcissist who flaunts his contempt for society’s rules, surely he should be attending to the mote in Britain’s political eye before considering his perceived beam in that of Hong Kong’s British judges.

Politicians in glass houses really should not throw stones.

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Queen's Counsel