Is HK’s judiciary sleepwalking to the year 2047 and beyond?

Richard Cullen says there is a belief that the judicial independence of the city is being reshaped, bit by bit, into a form of lawyer-energized judicial supremacy

Henry Litton is a retired Court of Final Appeal judge. In 2019, he published the book Is the Hong Kong Judiciary Sleepwalking to 2047? This is a very important book both because of what it says and who is saying it.

Litton has been a central legal figure in Hong Kong for decades. He co-founded the Hong Kong Law Journal 50 years ago and he chaired the Bar Association seven times before joining the judiciary and rising to its highest levels. It is hard to think of someone better placed to comment, in depth, on the operation of Hong Kong’s judiciary. Apart from this seminal book, he is a regular, authoritative commentator on a range of legal and political topics of central concern in Hong Kong.

He addresses contentious issues and takes robust positions. He has attracted a number of strong critics from the United States and within Hong Kong. Most censorious are practitioners who applaud how the role of the judiciary in Hong Kong has been transformed over the last 30 years as it has increasingly used its power to apply demanding human rights tests to a widening range of government actions and ordinances. Judicial activism is acclaimed. Some critics believe, for example, that as the HKSAR judiciary ought to have the legal right to strike down various provisions in the new National Security Law for Hong Kong, it follows that it surely must have this legal power.

It is not possible, here, to review the full, detailed case that Litton has articulated. The lucid gist of the arguments is clear, however.

A bedrock position advanced is that the common law we have is the common law specific to Hong Kong. In each place, the law is developed by applying longestablished legal principles and understanding to concrete legal disputes, which are resolved within the broad context of any given common law jurisdiction. Influences may be taken into account from other jurisdictions — but there is no such thing as international common law.

During the British Hong Kong era, the Judicial Committee of the Privy Council in London acted as our paramount court (today replaced by the CFA). But in this role, the JCPC typically adhered to the society-based understanding of the context within which the common law operated in Hong Kong.

For around 150 years, these were the fundamental guardrails within which the law worked in British Hong Kong. This was the common law system which was understood and spelled out for retention in the Sino-British Joint Declaration in 1984.

The turning point came with the enactment of the Bill of Rights Ordinance in 1991. This was one of the measures introduced by the British shortly prior to the 1997 handover, which aimed to build greater confidence within Hong Kong.

The British had, for the previous 150 years, taken the view that no such law was needed. The BORO is today recognized within the Basic Law, where it pairs with the rights protected in Chapter 3 of the law.

In 1991, the Sin Yau-ming case signaled the pronounced impact of the BORO on the previous mode of case-based decision-making. Two years later, in the Lee Kwong-kut case, Lord Woolf, speaking for the JCPC, warned of the dangers inherent in this change, with its powerful emphasis on making the government justify certain laws according to a complex series of judge-made proportionality tests drawn from Canadian case law. Briefly, Lord Woolf warned that the BORO could cause disputes to get out of hand and become a source of injustice if it were imposed inflexibly. He advocated that in most cases the courts should continue, essentially as before, to strike a balance between individual rights and the public interest.

This penetrating warning was roundly criticized by those favoring enhanced judicial activism and the application of a superior level of proportionality testing. The critics won and their approach has gathered impressive momentum over the last several decades. These developments have assisted the project to reshape the estimable concept of judicial independence into a form of lawyer-energized, judicial supremacy. It is key aspects of such developments which have drawn the most trenchant criticism from Litton.

In his book, Litton documents the erosion, in stark dismaying detail, of the previous, definitive adherence to common sense, fact-based decision-making in Hong Kong courts. This original approach, he says, has given way to obese, theory-based (not least and confusingly from the European Union) overlong legal decision-making, which, at great (usually public) cost, regularly fails to deliver fitting decisions. Compounding the calamity, this reasoning typically fails the test of translatability into Chinese.

Much of this litigation is politically shaped and involves judicial review applications funded by legal aid. Litton observes how lawyers lead and the judges follow, time and again, despite the fact that the judges have the authority to say that there is (typically) no proper case to argue. By allowing themselves to be led, Litton contends, judges are surrendering their own judicial independence, step by step, to the lawyers arguing before them.

Moreover, judgments are regularly emerging from this process that test Beijing’s predisposition to use — or not to use — the interpretation power in Article 158 of the Basic Law.

A prominent legal scholar, Michael Mandel, sharply noted the dangers arising from the “legalization of politics” in his principal book on the Canadian Charter of Rights. He characterized that document as “a dripping roast for lawyers”. Hong Kong today provides measurable confirmation of Mandel’s insights.

In summary, Litton makes a potent case that the reshaping of how the common law operates is bad for the HKSAR at two crucial levels.

First, the practical, fact-based functionality of the law has been seriously compromised. Litton concludes his book by arguing that abstract principles of law derived from foreign jurisprudence have crushed the simple logic of the common law in Hong Kong.

Secondly, this Hong Kong-incubated, adverse development of the law, shepherded by the judiciary, poses a visible threat to the prospects of retaining the essence of Hong Kong’s remarkable common law heritage over the long-term, beyond 2047.

Litton poses a pivotal question in the first chapter of his book: “The Basic Law gives effect to the ‘one country, two systems’ policy of the PRC which has held good for over twenty years: until the Hong Kong Judiciary itself, bit by bit, surrenders part of Hong Kong’s autonomy. Is this an exercise of judicial independence, or is it the betrayal of a constitutional trust?”

Hong Kong needs to pay careful attention to this question — not least as the US pursues a policy of comprehensive confrontation with China.