–Alyssa S. King and Alvin Y. H. Cheung
On June 27, 2014, up to 1,800 of Hong Kong’s legal professionals, including barristers, who litigate in the courts, and solicitors, who handle all lay client-facing work, marched in silence across the city’s center – for the third time since China resumed sovereignty in 1997[i] – in opposition to a recent white paper published by the State Council (“the White Paper”).[ii]
The White Paper was a significant departure in form, if not in substance. Published in seven languages by the State Council Information Office, it was aimed as much at foreign governments as it was at the Hong Kong public – a striking departure for Beijing, which typically inveighs against foreign interference. Its contents came as little surprise to a domestic audience, but might disturb those who think of Hong Kong as a relatively free city, albeit one that has never decided its own fate.[iii]
Consistent with previous statements endorsing “mutual understanding and support” between branches of government,[iv] the White Paper referred to judges as “administrators” of Hong Kong, of whom “loving the country” was a “basic political requirement.”[v]
The paper drew an immediate response from the Hong Kong Bar Association, which represents the city’s barristers, including paragraph four, printed in bold, capital letters:
THE HKBA REPEATS THAT RESPECT FOR THE RULE OF LAW (AS UNDERSTOOD IN HONG KONG AND THE COMMUNITY OF CIVILIZED NATIONS) MEANS FAR FAR MORE THAN MERELY ‘DOING THINGS ACCORDING TO LAW’ (依法辦事) OR ‘GOVERNING ACCORDING TO LAW’ (‘依法施政’). IT INCLUDES PROPER SELF-RESTRAINT IN THE EXERCISE OF POWER IN A MANNER WHICH GIVES PROPER WEIGHT AND REGARD TO THE IMPORTANCE OF THE INDEPENDENCE OF THE JUDICIARY.[vi]
Hong Kong’s solicitors, whose transactional and commercial litigation work often depends on Mainland China, are typically more circumspect. Yet when Ambrose Lam, the chair of the solicitors’ Law Society, endorsed the White Paper, there were immediate and widespread calls for his resignation.[vii] Following a tepid response by the Secretary for Justice,[viii] two former judges voiced their support for the march.[ix] Participants in the march included nine former Bar Chairpersons,[x] prosecutors (in their personal capacities),[xi] law professors,[xii] and solicitors in international law firms.[xiii]
An outside observer might fairly wonder whether reaction to the White Paper is overblown. Hong Kong’s lawyers have not yet encountered the perils that their Mainland counterparts face. Nor – until recently – has Beijing’s increasingly heated rhetoric on Hong Kong policy garnered widespread international attention. But Beijing itself has done much to fan the flames. A People’s Daily column published on June 19, 2014 criticized Hong Kong judges for failing to refer to the PRC Constitution.[xiv] Shortly before the march, pro-Beijing legislator Ann Chiang insinuated that the legal profession was disloyal to China.[xv] And the growing rift within the Law Society suggests that it – like the Bar – perceives the White Paper as posing an existential crisis. The focus of their concern is squarely on the issue of judicial independence.
The White Paper poses such a threat because of its vision of judicial role. It suggests a structure under which law is not different from politics – thus the qualifications for judicial appointments are the same as appointments to the executive and legislature. Statements by certain Mainland officials that various actions, such as polling Hong Kongers regarding universal suffrage, are “illegal” are only intelligible if one accepts that law is not distinct from politics.[xvi] Not all Mainland officials or legal scholars share that premise. Nevertheless, PRC courts still contain powerful political-legal committees, and lawyers who assert the government’s own law against it are treated as destabilizing to the regime.[xvii] By contrast, the Hong Kong lawyers’ march is aimed at preserving a system that is already in place.[xviii]
The suggestion that Hong Kong judges should be anything less than independent hits lawyers in their two most vulnerable places – their egos and their wallets. Put more charitably, it strikes at their professional identity, their futures, and their bottom line.
The pecuniary point is less compelling, but easier to explain. A strong legal system – with judicial independence as its keystone – has often been touted as important for economic development,[xix] and Hong Kong has long believed that multinational clients shop for favorable jurisdictions.[xx] If Party control is seen as encroaching on party control of litigation, investors may worry about the extent of the Party’s entanglement in economic concerns. And Singapore was quick to exploit the aftermath of the FG Hemisphere case, in which Beijing interfered with the enforcement of an arbitral award.[xxi] Ultimately, this argument may be less significant. Beijing has rejected significant legal reform while presiding over significant growth. It may gamble that undermining legal protections in Hong Kong would not significantly curtail investment.[xxii]
The White Paper’s suggestion that common law in Hong Kong only exists at Beijing’s sufferance also conflicts with entrenched notions of how the common law is enacted.[xxiii] Common law judicial authority rests on the idea that judges do something distinct from what politicians do.[xxiv] They are chosen differently.[xxv] The legitimacy of their decisions rests on different criteria. Legal procedure, a professional Bar and Bench, reliance on reasoning and precedent, and the possibility of appeal based on arguments over legal interpretation, differentiate legal reasoning from political reasoning.
Lawyers’ professional independence is largely derivative of that of judges. If judges use political reasoning and are mere bureaucrats, then lawyers in common law jurisdictions become politically accountable for whom they represent and how they represent them. If judges use different reasons and are subject to different role constraints, then lawyers too can claim they are not speaking politically when they rise in court. Hong Kong barristers have taken pains to maintain this role through institutions such as the cab rank rule, under which they must take any paying client they have the time and capability to represent.[xxvi]
Lawyers’ roles, like judicial roles in Hong Kong, are deeply influenced by precedent from England, where judicial independence is widely viewed as fundamental to the rule of law.[xxvii] One may question the relevance of the English model. Hong Kong, like Singapore, is “executive-led,” as it was under colonial rule.[xxviii] Thus, forms of deference designed to respect an elected parliament may be misplaced; the reasons for that deference do not exist. Hong Kong is hardly unique in having a written constitution, but the counter-majoritarian difficulty often debated in more democratic jurisdictions falls away when there is no clear source of a majority will.
In other ways, Hong Kong is not so different. English judges have adjusted to a system of law shaped by the European Union and the European Court of Human Rights and subject to review by pan-European courts. Yet the EU’s democracy deficit is a well-known problem.[xxix] Written constitutional instruments bring new avenues for direct citizen participation in law-making through the arguments they raise in court. However, by removing certain issues from regular politics, they also challenge regimes in which electoral democracy is the touchstone of legitimacy. Hong Kong’s political system may not be fully democratic, but its courts also stand outside of electoral politics. Like Indian or United States courts, they face the difficulty of making constitutional judgments amidst political and constitutional upheaval.
One response is to insist on judicial independence and distinguishing law from politics. Classically, U.S. Chief Justice John Marshall pronounced that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[xxx] More recently, the United Kingdom’s Constitutional Reform Act of 2005 drew a clearer distinction between Parliament and Judges and diminished the Lord Chancellor’s control over judicial selection.[xxxi] One response to loss of local control over English law has thus been to shore up the independence of English judges. In the United States, where constitutional review is well established, there is significant consensus on the independence issue.[xxxii] The right puts forward textualism and originalism as bulwarks of judicial independence.[xxxiii] The left argues that the constitution changes through public responses to jurisprudence developed by independent judges.[xxxiv]
What is different about Hong Kong is the need to explain the role of the judiciary not in response to public opinion, but in response to Beijing’s attempts to bring the territory to heel. The question is not – as it is elsewhere – where judges may legitimately counter the public’s wishes and how they interact with the public. The questions in Hong Kong are far starker: why should law be treated as a distinct discourse at all when it, like politics, is a tool of social control? Why shouldn’t Hong Kong’s judges, as part of the government, be expected to throw their weight behind whatever policy the Hong Kong – or Beijing – governments adopt? These questions are not unique to the common law. They are being asked with considerable vigor on the Mainland, which made their emergence in Hong Kong all the more electric. But common law traditions structure Hong Kong’s court system and rhetoric, and place it in a different position with respect to other jurisdictions that share them.
In the face of tremendous pressure, Hong Kong’s lawyers and judges are attempting to define what it means to be a common law lawyer and judge in the twenty-first century. Like those in other jurisdictions who face significant constitutional change or the need to apply a written constitution, Hong Kong lawyers have sought to underscore judicial independence and the difference between law and politics. But understanding the debate in Hong Kong involves challenging premises about the nature of law that the common law world has often taken for granted. The common law is not without resources to respond. It did not grow first in democracy and its history spans periods of political instability and interregna.[xxxv] Will that precedent serve now that the English entailed inheritance is held in fee simple,[xxxvi] by a dizzying variety of proprietors? Hong Kongers aren’t the only ones searching for an answer.
Suggested citation: Alyssa S. King and Alvin Y. H. Cheung, Why Hong Kong’s Lawyers Marched, Int’l J. Const. L. Blog, July 2, 2014, available at: http://www.iconnectblog.com/2014/07/why-hong-kongs-lawyers-marched/
[i] Alan Wong, Lawyers March to Defend Hong Kong Rule of Law in Show of Unity Against Beijing, N.Y. Times (blog) http://sinosphere.blogs.nytimes.com/2014/06/27/lawyers-defend-hong-kong-rule-of-law-in-show-of-unity-against-beijing/.
[ii] Full Text: Chinese State Council White Paper on “One Country, Two Systems” Policy in Hong Kong, Xinhua, June 10, 2014, http://news.xinhuanet.com/english/china/2014-06/10/c_133396891.htm. See also P.Y. Lo, China’s White Paper on Implementation of “One Country, Two Systems” Policy in Hong Kong: A Preliminary Reading, Int’l J. Const. L. Blog, June 19, 2014, available at: http://www.iconnectblog.com/2014/06/chinas-white-paper-on-implementation-of-one-country-two-systems-policy-in-hong-kong-a-preliminary-reading.
[iii] China requested Hong Kong’s removal from the United Nations’ list of Non-Self-Governing Territoriesin 1972. Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law 11, 38 (1999).
[iv] Press Release, Stephen Lam, Secretary for Constitutional and Mainland Affairs, LCQ2: The Relationship Among the Executive Authorities, the Legislature and the Judiciary (Jan. 27, 2010), available at http://www.info.gov.hk/gia/general/201001/27/P201001270155.htm.
[v]White Paper, supra note 2.
[vi] Hong Kong Bar Association, White Paper on the Practice of “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region, http://hkba.org/whatsnew/misc/
White_Paper_Response_eng.pdf (last visited June 27, 2014).
[vii] Tony Cheung, Law Society Chief to Face No-Confidence Vote After Backing White Paper, S. China Morning Post (H.K.), June 19, 2014, http://www.scmp.com/news/hong-kong/article/1536065/law-society-chief-face-no-confidence-vote-after-backing-white-paper.
[viii] Press Release, Rimsky Yuen, Secretary for Justice, White Paper on “The Practice of the ‘One Country, Two Systems’ Policy in the Hong Kong Special Administrative Region” (June 12, 2014), http://www.doj.gov.hk/eng/public/pr/20140612_pr.html.
[ix]退休法官撐法界遊行陳文敏﹕律政司長不出聲搞到前法官出聲 [Retired Judges Support Legal Profession March; Johannes Chan: Secretary for Justice’s Silence Forced Former Judges to Speak], Mingpao (H.K.), June 27, 2014.
[x]法界1800人遊行創新高黑衣捍衛司法獨立律政司﹕重視司法獨立 [Record-Setting 1,800 Legal Professionals March in Black to Defend Judicial Independence; Secretary for Justice Values Judicial Independence], Mingpao (H.K.), June 28, 2014.
[xi]無懼身分衝突政府律師相約遊行 [Government Lawyers Meet to March Despite Potential Conflict of Roles] , Mingpao (H.K.), June 28, 2014.
[xii] Supra note 10.
[xiv]人民日報評論員：準確把握香港特別行政區憲制基礎 [People’s Daily Commentator: Accurately Grasp the HKSAR’s Constitutional Basis], People’s Daily (Beijing), June 19, 2014, http://opinion.people.com.cn/n/2014/0619/c1003-25168295.html. For a translation, see Lo, supra note 2.
[xv]蔣麗芸嘲法律界靜默遊行 [Ann Chiang Derides Legal Profession’s Silent March], House News (June 27, 2014), http://thehousenews.com (input Chinese title as search term).
[xvi] See Michael Forsythe, Chris Buckley, & Alan Wong, In Hong Kong, an Unofficial Election Draws Beijing’s Ire, N.Y. Times, June 20, 2014, http://www.nytimes.com/2014/06/21/world/asia/in-hong-kong-an-unofficial-election-draws-beijings-ire.html.
[xvii] See Carl Minzner, China’s Turn Against Law, 59 Am. J. Comp. L. 935, 957-59 (2011) (describing “target responsibility systems” in the courts and their recent role in discouraging legal decisions in favor of at-times-forced settlement). Certain lawyers would not disagree: see Eva Pils, The Practice of Law as Conscientious Resistance: Chinese Weiquan Lawyers; Experience, 10-11, 16, 20-21 (Working Paper, 2009) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1564447 (describing the professional evolution of rights defense (weiquan) lawyers).
[xviii] Certain organizers, of course, are also associated with the pro-democracy movement. Dennis Kwok, one of the organizers, is a member of the pro-democracy Civic Party. But the march is explicitly about conserving the existing common law system and not about demanding electoral democracy or other constitutional change: Dennis Kwok & Members of the Election Committee (Legal Sub-sector), Silent March (copy on file with authors).
[xix] See Rimsky Yuen, The Future of Hong Kong: A Legal Perspective, June 20, 2013, http://www.doj.gov.hk/eng/public/pdf/2013/pr20130620e.pdf.
[xx] See id.
[xxi] Andrea Tan, Singapore Gains as Hong Kong Follows China Rule on Immunity, Bloomberg (Aug. 31, 2011), http://www.bloomberg.com/news/2011-08-31/singapore-to-gain-as-hong-kong-follows-china-s-laws-on-sovereign-immunity.html.
[xxii] See Adam Rose & Nikki Sun, Hong Kong Lawyers March in Protest Against Perceived China Meddling, Reuters (June 27, 2014), http://www.reuters.com/article/2014/06/27/us-hongkong-lawyers-idUSKBN0F20DY20140627.
[xxiii] E.g., J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century, 51 (2d ed. 1987); Tom Bingham, The Rule of Law 8 (2011).
[xxiv] See, e.g., Bingham, supra note 24, at 61 & 65 (describing judicial review of administrative action and differentiating judges from the bureaucracy they submit to legal control); Robert Post, Theorizing Disagreement: Reconceptualizing the Relationship Between Law and Politics, 98 Cal. L. Rev. 1319, 1341-45 (2010) (arguing that law and politics are related, but distinct discourses and that judicial legitimacy depends in part on this distinction).
[xxv] See Judicial Officers Recommendation Commission Ordinance, (1997) (Cap. 92) §§ 3 & 6.
[xxvi] Bar Code of Conduct, § 21 (2013).
[xxvii] J.H. Baker, Introduction to English Legal History 165 (4th ed. 2002).
[xxviii] See Legislative Council Panel on Constitutional Affairs, Relationship between the Executive Authorities and the Legislature, LC Paper No. CB(2)900/06-07(01) available at http://www.legco.gov.hk/yr06-07/english/panels/ca/papers/ca0123cb2-900-1-e.pdf.
[xxix] See Andrew Moravcsik, Why the European Union Strengthens the State: Domestic Politics and International Cooperation 3 (Center for European Studies Working Paper #52), available at https://www.princeton.edu/~amoravcs/library/strengthen.pdf.
[xxx] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
[xxxi] Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence, and Independence in the United Kingdom 222 (2011).
[xxxii] This view is not altogether uniform. See Christopher L. Eisgruber, Constitutional Self-Government 8 (2001) (rejecting the division between law and policy at least in constitutional law).
[xxxiii] See Antonin Scalia, Common Law Courts in a Civil Law System in A Matter of Interpretation: Federal Courts and the Law 3, 46 (1997).
[xxxiv] See Bruce Ackerman, We The People: Foundations 266-68 (1991); Ronald Dworkin, Taking Rights Seriously 82 (1978).
[xxxv] See Baker, supra note 28, at 167-68 (describing instances in which the judiciary contended with the Crown).
[xxxvi] Edmund Burke, Reflections on the Revolution in France 29 (J.G.A. Pocock ed., 1987). An entailed inheritance is one in which property descends to a specific person and cannot be freely assigned. Property held in fee simple has no restrictions on alienation.