Of Pirates and Caymans: Lessons from the Privy Council for Interpretation of Hong Kong’s Basic Law

–Alvin Y. H. Cheung, Barrister-at-Law, Sir Oswald Cheung’s Chambers, Hong Kong

 At the ceremonial opening of the legal year of the Hong Kong Special Administrative Region (“HKSAR”) on 14 January 2013, Chief Justice Geoffrey Ma, Secretary for Justice Rimsky Yuen SC and Kumar Ramanathan SC, Chairman of the Bar Association, spoke at length about protecting the independence of the Judiciary.[1]  These statements form part of a long-running debate regarding the interpretation of the Basic Law – Hong Kong’s constitutional document – by the National People’s Congress Standing Committee (“NPCSC”).[2]  In particular, the debate has focused on the impact of NPCSC interpretation on Hong Kong’s Court of Final Appeal (“CFA”).[3]  This debate has been re-ignited by two recent events.  In October 2012, Elsie Leung – the Deputy Chairperson of the Committee for the Basic Law of the HKSAR[4] and the HKSAR’s first Secretary for Justice – made public statements concerning interpretation of the Basic Law which were highly critical of Hong Kong’s legal profession and the Judiciary.[5]  More recently, the current Secretary for Justice made the decision to seek NPCSC interpretation in connection with litigation concerning the right of abode of foreign domestic helpers.[6]

Many of the public statements made in the course of this debate have centred on whether the independence of Hong Kong’s Judiciary will be affected by NPCSC interpretation.  I venture to suggest that this question is not the correct question to pose.  Rather, more attention should be paid to whether NPCSC interpretation threatens the relevance of Hong Kong’s Judiciary – in particular, that of the CFA.  If Hong Kong’s judicial system can be circumvented through a reference to the NPCSC by the HKSAR or PRC Governments, it no longer matters whether Hong Kong’s judges continue to decide cases without fear or favour.[7]  In considering whether NPCSC interpretation affects the relevance of the Judiciary, the Judicial Committee of the Privy Council (“the Judicial Committee”) – the CFA’s predecessor in Hong Kong’s appellate hierarchy – may provide some useful insight.[8]

A curious parallel with the NPCSC’s powers of interpretation under Basic Law article 158 can be found in section 4 of the Judicial Committee Act 1833 (“the 1833 Act”),[9] which reads:

“It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit; and such Committee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid.”[10]

The Judicial Committee exercised its powers under section 4 of the 1833 Act in relation to pre-Handover Hong Kong in In Re Piracy Jure Gentium [1934] AC 586.  In that case a number of Chinese nationals were tried in respect of a failed attempt at piracy.  The Full Court of Hong Kong acquitted them on the basis that actual robbery was a necessary element of the crime of piracy jure gentium.  The legal question of whether actual robbery was necessary was referred to the Judicial Committee.[11]  Notably, Viscount Sankey LC took pains to stress that the reference under section 4 of the 1833 Act was “in no sense an appeal from [the Full Court], whose judgment stands”.[12]

More recently, a differently constituted Judicial Committee considered section 4 of the 1833 Act[13] in Chief Justice of the Cayman Islands v The Governor and the Judicial and Legal Services Commission [2012] UKPC 39 (“the Cayman Islands Case”).[14]  The case raised two issues: the extension of the appointment of a Justice to the Grand Court, and judicial disciplinary regulations.  The Chief Justice presented a petition to the Queen, who referred the matter to the Judicial Committee under section 4 of the 1833 Act.  However, the Governor argued that the two issues should have been resolved (at least initially) by judicial review proceedings in the Grand Court.

The Judicial Committee held that it would be open to it to decline to provide substantive answers to questions raised in a petition under section 4 of the 1833 Act, if it considered such a refusal to be appropriate.  Having so concluded, it went on to consider whether it should so decline in the instant case.  At [32]-[35] their Lordships held:

Subject to any arguments to the contrary based on the facts of the particular case, it appears to the Board that it would be inappropriate for the Judicial Committee substantively to consider issues raised in a petition under section 4 of the 1833 Act, when those issues can be raised by way of ordinary proceedings in the first instance courts of the territory in which the issues arise.

 Accordingly, the Board concludes that, if an issue relating to the Cayman Islands can properly be determined by the Grand Court, with a right (qualified or not) of appeal to the Court of Appeal and then to the Privy Council, it would be wrong as a matter of principle, in the absence of special factors, for the Judicial Committee to consider that issue under a section 4 petition, and thereby to act as what Lord Pannick described as ‘a court of first and last resort’.

 There are a number of reasons which justify this conclusion.  First, section 4 of the 1833 Act is not intended to provide a mechanism for bringing any issues before the Judicial Committee which a petitioner wants determined by the Committee: it is intended to be limited to issues which cannot be determined through the ordinary judicial process.  Secondly, where there is a well established process for the determination of an issue by the courts, only special circumstances will justify a by-passing of that ordinary process.  Thirdly, in a tiered court system, the conclusions and reasoning of a higher tier court will be likely to be better than that of a lower tier court, because the arguments of the parties tend to become refined and improved as the case progresses up the system, and because the judges in a higher tier court benefit from the reasoning of the judge or judges in the lower tier courts.  Fourthly, in a case such as this, it is normally appropriate that the courts in the territory concerned should express a view before the Privy Council is seised of the case.  Fifthly, although it is a point which does not seem to apply in this case, the more senior courts are much less well equipped to receive and deal with oral evidence and fact-finding.

 This conclusion is also supported by Professor Keith in The Dominions as Sovereign States (op cit), p 399, where he said that the section 4 ‘procedure is not available when the issue is one which properly could be made the subject of ordinary judicial proceedings’.  To the same effect, Sir Kenneth Roberts-Wray in Commonwealth and Colonial Law (1966), p 436 stated that ‘[t]he Judicial Committee would … be reluctant to grant special leave, save in exceptional circumstances, if local remedies have not been exhausted’.  He continues: ‘[s]hort circuiting has been deprecated’.  The same point was made by Lord Hailsham of St Marylebone, when Lord Chancellor, in a debate in the House of Lords concerning a potential reference under section 4 of the 1833 Act, namely that a reference under the section ‘is a convenient method of ascertaining the law when no other jurisdiction is available’ – Hansard (HL Debates), 21 April 1971, col 769.

The Privy Council’s reasons for declining to advise on the petition in the Cayman Islands Case carry two important lessons for Hong Kong.

First, “abstract” interpretations, in which the NPCSC acts of its own motion or on a reference from the HKSAR Government, effectively “short-circuit” the Hong Kong courts.[15]  In the absence of special circumstances, such interpretations must be avoided at all costs.  The fact that only the CFA is authorised to request NPCSC interpretation under Basic Law article 158(3) itself also suggests that it is inappropriate to seek a “short-circuiting” of ordinary trial and appellate proceedings.

Second, and more generally, NPCSC interpretation is an extraordinary power.  It should not be used by the HKSAR Government of the day as an expedient mechanism for bringing issues before the NPCSC which the Government wants to be decided by the NPCSC.  It is clear from Basic Law article 158(2) that provisions which are “within the limits of the autonomy of the Region” should be interpreted by Hong Kong’s courts in the ordinary course of events.[16]  Such autonomy encompasses all matters save for foreign affairs and defence.[17]

It does not follow from the mere existence of a power of constitutional interpretation that such power ought to be exercised.[18]  The Judicial Committee showed a commendable awareness of this proposition in the Cayman Islands Case in refusing to allow section 4 of the 1833 Act to be used to short-circuit ordinary judicial process.  It remains to be seen whether the HKSAR Government, or the NPCSC, will show similar wisdom.  Failure to do so risks consigning the CFA – and Hong Kong’s separate system of constitutional and administrative adjudication[19] – to irrelevance.