Help or hindrance?

April 06, 2022 10:07
Photo: Hong Kong Court of Final Appeal

Whether one likes it or not, there are different opinions about the direction in which Hong Kong is being driven.

Though it may not have been to everyone’s liking, prior to Carrie Lam’s attempt to introduce the extradition law, Hong Kong was a busy, bustling commercial hub, the foremost financial centre in Asia.

The obdurate refusal to withdraw the bill in the face of massive popular opposition led to the socially and economically destructive protest movement, brutally repressive response and counter-productive vandalism.

The upshot and aftermath has been the bitter polarisation of the city’s population and widespread international condemnation of the official response, especially the imposition of the National Security Law.

Whether or not one agrees with the widespread arrests and clampdown on any form of disagreement with government, a substantial number of people have been arrested, many of them convicted and many others languish in gaol waiting to be tried.

Inevitably, those who regard these arrests and trials as evidence of the suspension of civil rights and freedoms voice their criticism, volubly.

What is difficult, if not impossible to comprehend, is why such criticism should be so indiscriminate?
In July 2020 President Trump withdrew Hong Kong’s special trading status, ending its special privileges, special economic treatment, and banning export of sensitive technologies.

If, as would seem to be the case, the USA disapproved of the central government’s introduction of the National Security Law, why compound Hong Kong’s misery by undermining its trading status?

How could such a step be regarded as assisting the people of Hong Kong?

Now, two of the Court of Final Appeal’s British Non-Permanent Judges have resigned, ostensibly because they felt that their continued membership lent legitimacy to a legal regime of which they disapproved.

These resignations coincided with statements by two of the British cabinet’s intellectual pigmies, Liz Truss and Dominic Raab, claiming that "The situation has reached a tipping point where it is no longer tenable for British judges to sit on Hong Kong's leading court” as this “would risk legitimising oppression."

Carried to its logical conclusion, this would mean that any judge in Hong Kong risks legitimising oppression by the very fact of remaining in office.

This ignores the fact that only a handful of judges have been specifically appointed by the Chief Executive to preside over National Security Law cases. The vast majority of the judges have nothing to do with such cases and continue to administer the law according to fundamental common law principles.

It is a gratuitous calumny on the bulk of Hong Kong’s judges to lump them all together as legitimising oppression.

Only if a Non-Permanent judge of the Court of Final Appeal had to determine a National Security Law case would he or she even run the risk of having to decide in a manner that was inconsistent with the fundamental rules of natural justice. At which point in time there could be a crisis of conscience.

Is it not pre-judging the judges to assume that they would take a course that was contrary to fundamental common law rights?

And what of the barristers, all of whom have been trained and practised in accordance with the liberal common law principles, is it to be suggested that by continuing to practise in Hong Kong we are legitimising oppression?

Together with my professional colleagues, I regard this as gratuitously offensive.

In the context of Hong Kong’s body of laws, the National Security Law is a puny slice. It may have acquired a disproportionate amount of press coverage but it pales into insignificance beside the vast commercial, administrative, family, personal injury and common or garden criminal law, that occupies the system of justice.

Is it the view of the British cabinet’s ignorant Ministerial appointees that the judiciary, the Bar and the Law Society’s members should abandon the people of Hong Kong? To what end?

More often than not it is failed politicians like Iain Duncan-Smith and William Hague and 3rd raters like Truss and Raab who espouse causes without comprehending their complexity.

These people and those like them fail to appreciate how their mindless observations only serve to compound the hurdles faced by every reputable common lawyer in Hong Kong in the struggle to maintain the principles of the liberal rule of common law on behalf of the people of the Special Administrative Region.

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King's Counsel