Recent events in local legal circles - notably the selection of HKU’s Law Faculty Dean and the imminent retirement of Chief Justice Andrew Li Kwok-nang - have prompted calls by some for the legal system to purge itself of its “colonial legacy”. These views have been most publicly espoused by Ms Rosanna Yam, a regular correspondent to the South China Morning Post (see, for instance, her letters of 21 May 2009, 22 June 2009 and 24 September 2009), and by Ms Anna Tse (see her letter to the Post of 8 October 2009).
It has become politically fashionable in Hong Kong to bash all things colonial* - indeed, the very word is now a pejorative synonym for “outmoded”. But what is it that Ms Yam, Ms Tse and their ilk are really saying? At the risk of “feeding the trolls”, it is worth setting out just how spurious these arguments really are.
The attack on the common law appears to take two forms. The first limb is the allegation that the common law is inherently flawed, or is unsuitable for post-Handover Hong Kong. Thus we see references to the “social and cultural costs of sustaining common law’s hothouse survival out of its cultural context as a foreign-language entity in a Chinese-speaking community” (22 June 2009) and references to the common law’s “colonial legacy” (24 September 2009), as well as the common law containing a “plethora of woolly concepts and simplistic presumptions” (21 May 2009). Ms Yam further equates the existence of a common law system in the United States to the origins of the current global financial crisis (21 May 2009).
The assertion that the common law is a “foreign” transplant that is no longer appropriate in post-colonial Hong Kong has little foundation other than the dangerously fashionable idea that anything colonial must, by virtue of its British origin, be purged from the Hong Kong polity. While Palmerston will happily concede that the continued presence of wigs and gowns in the courtroom and the customary modes of Court address (in particular “my Lord”, “my Lady”, “your Lordship” and “your Ladyship”) are very much out of place in the 21st Century, the criticisms made by the likes of Ms Yam and Ms Tse go deeper than these superficialities. In that regard it suffices to note that the very reason Hong Kong retains an important role in global investment in China is the continued existence of a robust common-law system: there is good reason for the number of Hong Kong-based lawsuits and arbitrations relating to PRC joint ventures.
Ms Yam makes no effort to identify the so-called “plethora of woolly concepts and simplistic presumptions”; this allegation ignores the comparable - if not greater - number of such flaws which are inevitable in any set of legal norms which professes to be comprehensive.
Ms Yam’s conflation of the common law in the United States with its neoliberal economic ideology equally does not hold up to scrutiny, and reflects an inability to contemplate any degree of separation of powers between the Judiciary and the Executive. This much is made clear when she suggests that the Judiciary should “ensure the implementation of China’s basic policies in Hong Kong” (24 September), a task which should surely be left to the SAR Government.
In a similar vein, Ms Yam suggests that the Chief Justice’s explanation that his early retirement was to facilitate “succession planning” smacks of some ulterior motive. In proposing lifetime tenure for judges, Ms Yam conveniently ignores the obvious point that it would be undesirable for the Bench to be populated by elderly judges who are unfit to hear cases. Instead, she insinuates that the reason for “succession planning” is political opposition in the Judiciary to the local and central Governments. It appears, in light of Ms Yam’s suggestion that Chief Justice Li’s successor do more to uphold “national unity” (24 September 2009), that Ms Yam’s complaints about “improper judicial activism” (21 May 2009) are only directed at the “wrong” type of activism.
In her letter (itself an attempt to defend Ms Yam’s views), Ms Tse contends that “laws are made and applied by national authorities to serve political ends”, and refers to the excesses of American national security. This simplistic argument is particularly telling - Ms Tse deliberately focuses on law in the form of legislation, while playing down the need for a robust judicial counterweight to populist or unconstitutional legislation. One need only look to the recent Berlusconi immunity verdict to see that such concerns are not quaintly colonial.
Ms Tse further contends that the continued non-adoption of contingency fees renders advocates “mercenaries”. Leaving aside Palmerston’s doubts as to whether this is a “colonial legacy” at all, one need only consider the proliferation of tort litigation in the United States, driven by contingency fee arrangements, to see the terrible consequences when an advocate acquires a direct financial interest in the outcome of their lay client’s litigation. It is the very adoption of “no win, no fee” arrangements - as are common in (illegal) personal injuries claims agents in this territory - that results in the proliferation of mercenary behaviour and destroys any prospect of an independent Bar.
The second limb of the attack made by Ms Yam and others is the superficially reasonable statement that Civilian systems are just as capable of attaining the ideals of the rule of law and an independent Judiciary.
This may be true as a matter of principle - but it does not follow from that statement that a Civilian system is appropriate for Hong Kong. Insofar as Ms Yam and others advocate the implementation of Civilian law in Hong Kong, they are proposing change for the sake of political fashion - a pretext, no doubt, to the wholesale importation of PRC law and “more experienced” PRC judges to implement it. This much is made clear when Ms Yam deprecates the Basic Law and Joint Declaration as constituting a mere “interim arrangement” (24 September 2009).
Ms Yam’s true colours are revealed on a cursory analysis of her arguments: what she proposes is the replacement of a robust Judiciary which rules “without fear or favour” with a Bench composed of politically malleable judges implementing Communist law. Leaving aside the simple fact that this proposal amounts to a flagrant violation of the Basic Law and Joint Declaration, such sentiments reflect the folly of Britain-bashing as political fashion.
In blindly stressing “One Country” to the complete exclusion of “Two Systems”, Ms Yam, Ms Tse and their ilk seek to throw out everything that distinguishes Hong Kong as a Special Administrative Region: they are proposing the slaughter of the goose that laid the golden egg.
* Especially in the education system - but that is a matter for a separate post. ?
