(Note: This post was originally published by Hong Kong Free Press, on October 31, 2020, under the title “Henry Litton’s Law: Hong Kong Judges Must Put Common Good Above Individual Rights”)
When political controversies become seriously polarized, few people are willing to step across the dividing line. Those who do run the risk of being pilloried and mocked as sell-outs and collaborators, easily coopted and absorbed by the powerful on either side.
Hong Kong is currently in such a state. Pro-democracy partisans stand on one side, representing a majority of the voting public. Ranged against them are the Hong Kong government’s pro-establishment allies, reinforced by all the power of the Chinese state, now further strengthened by the National Security Law promulgated for Hong Kong on June 30.
The new law is being interpreted and implemented in a way that is new to Hong Kong’s common law judicial system, which was allowed to remain intact after Hong Kong’s 1997 transfer from British back to Chinese rule. Among other things, the national security environment surrounding the new law is being used to destroy Hong Kong’s democracy movement in its present form, this despite — or perhaps because of — the public’s preferences.
In such an environment, it’s difficult to imagine alternatives that might stand between the two sides or mediate between them. The question of bringing them together scarcely arises. But there are always a few hardy souls willing to confront the challenge in search of options that might be acceptable to both sides.
Anthony Cheung Bing–leung and James Tien Pei-chun have presented some ideas they think might serve such a purpose for Hong Kong’s still unreformed post-colonial Legislative Council. (a) Barrister and retired judge Henry Litton is taking a more aggressive approach with his forthright criticism of Hong Kong’s current judicial system.
Litton is saying, in effect, reform it or lose it, and his argument has already made him a favorite among promoters of the just-launched Beijing-sponsored campaign that is challenging Hong Kong’s judiciary to “have the courage to reform itself.” (b) But like the defenders of the existing system, including the current Chief Justice Geoffrey Ma, Litton seems to be settling in for a protracted struggle.
“SLEEPWALKING TO 2047”
Litton began his own one-man crusade for judicial reform well before last year’s protests and Beijing’s National Security Law response. A Hong Kong native and barrister now in his 80s, Litton served as a judge on Hong Kong’s highest appeals court from 1997 until his retirement in September 2015.
He obviously had some things he’d been waiting to get off his chest and did so in a speech at the Foreign Correspondents Club on December 3, 2015. The speech provoked waves of criticism in legal circles, including a dissenting opinion from former Chief Justice Andrew Li. ( c )
Undeterred, Litton elaborated his views in two collections of essays, both published last year, with titles that advertise his meaning and message: Is the Hong Kong Judiciary Sleepwalking to 2047? and, Can Freedom and Liberal Values Thrive If Common Law Crumbles?
The significance of 2047 derives from Hong Kong’s foundation document, drafted under Beijing’s supervision in the late 1980s, and promulgated in 1990. The Basic Law was written to serve as Hong Kong’s constitution after 1997. But the Basic Law’s Article 5 contains a cryptic caveat.
Article 5 says that the mainland’s socialist system shall not be practiced in Hong Kong for 50 years from 19997. Hence between 1997 and 2047, all the guarantees included in Hong Kong’s post-colonial “one country, two systems” governing formula will continue to apply as spelled out in the Basic Law.
What might or might not follow is unknown, although Chinese officials have from time-to-time suggested that if all goes well, “one country, two systems” can continue on indefinitely.
Litton’s basic argument is that Hong Kong’s legal system, together with all the Western-style rights and freedoms guaranteed in the Basic Law, will be in jeopardy come 2047.
This is because Hong Kong’s judiciary — from the district-level magistracies to the Court of Final Appeal — is not fit to maintain the guarantees even within the confines of the current “one country, two systems” governing formula. Without reform, the judiciary will be even less able to do so after the formula’s Basic Law shelf-life expires in 2047.
Litton comes across as an old-school contrarian committed to the strictest of standards with the narrowest of objectives. Hong Kong’s continuing judicial independence, he says, can only be maintained by judges committed to the norms and values of the common law, who issue judgements that are narrowly focused, promptly delivered, and clearly presented in language the general public can readily understand.
Hence, he can contain his enthusiasm for the new-fangled human rights orientation belatedly adapted for Hong Kong use by the outgoing colonial administration to help protect Hong Kongers in their post–1997 life under Chinese rule. The new concerns are at odds with his strictly focused common law ideals.
Especially he dislikes the practice of judicial reviews whereby any citizen can ask the court for reviews on too many different kinds of government decisions. And he thinks such reviews should definitely not be allowed into the realm where Beijing’s rule must apply. As cases in point, he cites the reviews that challenged the cross-border mega bridge and high-speed rail projects.
In 1997, he claims, Hong Kong had a robust well-run judicial system. That year, there were only 112 applications by citizens for judicial reviews. By 2019, the figure had grown to 3,889 — proof positive that the practice has gotten out-of-hand.
Litton thinks Hong Kong’s judiciary should mind its own business, distinguish between domestic and non-domestic matters, and confine itself to the former. He is less concerned about the encroachment of mainland ways into Hong Kong than he is about a judiciary that is inviting trouble for itself by trending into areas beyond what he sees as its legitimate sphere of domestic responsibility.
In making this argument he is, of course, accepting as inevitable and legitimate what Hong Kong’s democracy movement regards and resists as Beijing’s growing intrusions into the “high degree of autonomy” also promised by the Basic Law.
Litton not surprisingly viewed last year’s anti-extradition law protests with a jaundiced eye. If the common law crumbles, he told interviewers in August 2019, all will be lost. He admonished protesters to make “one country, two systems” a success so Beijing could relax and extend the formula beyond 2047. Liberal democratic values could only thrive in that way. It was “absurd” to think Beijing could be moved by street demonstrations. ( d )
IN DEFENSE OF THE NEW NATIONAL SECURITY LAW
Still undeterred, he soldiered on to defend the new National Security Law. In June, just before the law was promulgated but after Beijing had announced it soon would be, Litton called out overseas critics for being too quick to criticize. In a South China Morning Post opinion piece published on June 15, he defended Beijing’s sovereign right to pass the law and offered reassurance about its implementation.
The new law criminalizes the crimes of subversion, secession, terrorism, and colluding with foreign forces. Taking the strictest most optimistic of common law views, he explained how prosecuting the crime of subversion would work in a Hong Kong common law court. Subversion means undermining the power and authority of an established institution, in this case the government. The alleged act and intent to commit it must both be proven.
He offered an example: “In the instance of the kid in the street with his placard bearing words like “Revolution of our times,” no court in Hong Kong would construe those words by themselves as having an effect of undermining the government; furthermore, no court would attribute to that kid the necessary intent: far more likely he is simply confused or misled or yielding to peer pressure.” (e)
After the law was promulgated, he seemed to savor his “I told you so” moment and went on to use it as a kind of case study, useful for further illustrating his case. In a lengthy opinion piece published in the Chinese–language Ming Pao daily on July 28, Litton argued that far from undermining Hong Kong’s autonomy, the new National Security Law could actually strengthen Hong Kong’s one-country, two-systems relationship with Beijing.
First, he wrote, the law was justified because protesters had resorted to violence, they were calling out to destroy the police force and overthrow the Hong Kong government. Local authorities were unable to control the situation, so Beijing rightly intervened.
But Litton also followed the lead of pro-Beijing commentators who projected the new law as a kind of guarantee that the “one country, two systems” governing formula would be able to pass muster and be allowed to continue after 2047.
For Beijing’s intervention to fulfill its promise in this regard, however, Hong Kong’s judges must do their part. They would have to use the opportunity to ensure that the common law was an effective instrument for dealing with such crimes. The judiciary would have to balance and accommodate both Hong Kong’s aspirations for a free society and Beijing’s anxieties about the regime’s security.
By early September, he was taking his argument a step further ( f ). The only way to maintain “one country, two systems” was to extend its shelf-lie beyond 2047. And the only way to accomplish that feat is to earn Beijing’s trust, a commodity now in short supply.
Litton thinks Hong Kong’s judiciary is partly to blame for this lapse. As evidence, he cites Article 44 of the new law. This places responsibility for choosing judges to handle national security cases in the hands of Hong Kong’s Chief Executive rather than those of the Chief Justice where it rightly belongs.
For this offense against the principle of judicial independence, he thinks the judiciary has only itself to blame because the courts use “obscure norms and values from overseas, which are totally unsuited to Hong Kong’s circumstances. Such an approach is fundamentally wrong and is opposed to basic common law principles.”
The courts have also consistently “subordinated the common good to the assertions of personal right. This gives a sense of personal sovereignty to those who have taken to the streets in violent protest.”
Additionally, Litton faults the language of the court that makes it largely incomprehensible, or so he claims. He says the judgements are typically rendered in language “so dense, verbose, difficult and lengthy” that few outside the legal profession can understand much less criticize.
In Litton’s view, the only answer is a “total shift in mindset” and “radical cultural change” — a call that dovetails perfectly with the new Beijing-sponsored campaign for judicial reform.
DAY ONE: The Tong Ying-kit Case
As it happens, the very first national security law case is similar to Litton’s hypothetical kid with a placard that he said no Hong Kong court would bother considering. The case dates from Day One of Hong Kong’s experience with the new law. July First is a public holiday commemorating the 1997 return to Chinese rule. A young man carrying a banner with forbidden words drove his motorcycle into a group of police officers injuring three.
Tong Ying-kit was arrested and has been charged on one count of inciting secession for his banner that carried Hong Kong protesters’ favorite slogan, “Liberate HK, Revolution of Our Times.” He is also charged with one count of engaging in terrorist activity related to the injured policemen.
Tong is still in custody, with bail having twice been denied. Those rulings were nevertheless of some relief to critics of the new law worried about human rights protections. Especially significant was the ruling on August 21, since it was delivered by two “designated” judges, meaning those selected by the Chief Executive to hear national security cases. ( g )
In denying bail the ruling was careful to cite both the new law and Hong Kong’s existing bail procedures, indicating that the former was not being used to override the latter. This is cold comfort for Tong. But in any case, Hong Kong law contains ample provisions for denying bail, which was evidently the desired official aim however it was achieved..
Litton did not acknowledge his earlier optimistic prediction about the kid with a placard. Nor did Litton concern himself with the details of human rights protection. Instead, he used the August 21 bail ruling as more grist for his mill saying it offered more proof of a judiciary “in dire need of reform.” This was because defense counsel Philip Dykes had introduced a lengthy argument questioning the constitutionality of the national security law itself.
In yet another opinion piece, Litton argued that the judges had failed again in their duty to explain clearly in language the general public could not fail to grasp. He said the defense counsel’s arguments should have been dismissed outright.
Instead, the judges had indulged him with a 25-page explanation as to why the new law’s provisions were entirely constitutional. Litton also mocked the reasoning, namely, that the judges had taken the trouble to respond in such a lengthy fashion out of deference to counsel’s careful submissions. (h)
WHAT PRICE MODERATION?
Henry Litton is a man of the law who seems unwilling to bring himself down to street level where so much of what he regards as a distraction begins. He blames the Bar and the Bench, lawyers and judges, for the chaos he sees all around him, evidently without realizing they are only a reflection not the cause.
Long ago, back at the beginning in 1985, when the colonial administration first began experimenting with electoral reform, a first step was indirect election for a few sectors that have since grown into the Functional Constituencies responsible for electing half of Hong Kong’s Legislative Council.
Henry Litton and Martin Lee were the two main contenders for the newly created legal sector’s seat in the old colonial council. Looking forward to the challenge of 1997, Martin Lee spoke eloquently about autonomy and democracy. Litton was less inspirational. Lee won the seat and went on to become a founder of Hong Kong’s democracy movement. He is also one of Hong Kong’s leading barristers.
Litton went on to become a leading judge and now disparages the constant complaints about erosion of autonomy coming from the Bar Association. He cannot bring himself to appreciate the significance of Martin Lee’s many pro bono cases in defense of disqualified legislators and other democrats, who are now finding themselves in trouble with the law.
It follows that for Hong Kong’s democracy movement, moderate middle-road alternatives point to a bleak future. In Anthony Cheung’s scenario, representatives elected by a majority of the voters, will be consigned to permanent “opposition” status, regardless of how many pro-democracy votes they win on election day. Over time, these voters will probably decline in number given the futility of the exercise, so the government’s difficulties may be resolved in that way.
For James Tien, relief from Hong Kong’s current predicament must rely on a few members of the establishment willing to step out of line and take stands against official policies and proposals, as and when these stray too far beyond right and reason.
For Henry Litton, the middle road is a judiciary still committed to common law norms and values that nevertheless adapts to a sovereign in Beijing intent on imposing its norms and values on every sphere of Hong Kong government and society.
That would mean, for example, dismissing all judicial review applications that seem to challenge the decision-making authority of the central government. It would also mean refusing to indulge arguments from defense counsels that presume to set individual rights above the common good.
But at least members of the general public would be able to comprehend and presumably be more willing to accept their prospects under a rigorously disciplined legal system working to realize the standards of a national security regime.
( d ) SCMP Alvin Lum: “HK Protesters Want to Protect Freedoms? Work on defending ‘one country, two systems’ first … Aug. 20, 2019
( e ) SCMP, June 15, 2020 Henry Litton: “Western leaders have been quick to denounce HK’s national security law …
( f ) Litton’s own op-ed, in SCMP September 3, 2020 “”New legal mindset”
(g) the August 21, 2020 ruling
Posted by Suzanne Pepper on November 2, 2020