"The nuts and bolts of the Rule of Law" by Ms Gladys Li, SC, JP

Project Citizens Forum: The Rule of Law and Its Importance to Hong Kong (8 December, 2018)

Speech by Ms Gladys Li, SC, JP

The nuts and bolts of the Rule of Law

I have termed my speech "The Nuts and Bolts of the Rule of Law". So welcome to all of you, you here are the nuts and bolts of the Rule of Law. Even though some of us may be nuttier than others, I think it is essential that we recognize that we all have that role in maintaining the Rule of Law. In the last few weeks, I have been particularly distracted because I am packing up my office and giving away a lot of law books, some of them are very old. In fact, I tend now to be keeping all the law books which may be purely of sentimental value.

As I did so, I came across something which I had never actually read. There are so many unread law books in my office, but this particular one was special because it was given to me by Albert Sanguinetti. Those of you who know Albert or would have known Albert Sanguinetti, will realize that there was something particularly special because in its pages, I found a double-sided sheet of paper in Albert’s handwriting. This book he had inscribed at the front "University College London" and some date in 1947 which presumably was when he first went to University College London and it’s where he met my father. That was the beginning of a life-long friendship which I think in some way was responsible for Albert’s landing on these shores and making it his home.

Albert had been set a problem and this was his answer to an essay or a mock exam question. It centered on a quotation from Montesquieu which was not actually set out. I speculate that whatever the quotation was, since the question did not appear, it was probably followed by the usual imperative: Discuss.

The first comment from his tutor written in red ink reads this: “This introduction to your answer is too long, full of historical detail. What the examiner wants mostly is a consideration of the doctrine as it exists today.” In conclusion, at the end of the answer, was written “You would have done better to consider the modern position under three distinct headings: 1. Legislative and executive functions. 2. Legislative and judicial functions. 3. Executive and judicial functions. Only by so doing will you make sure of covering all relevant points, many of which you have consequently omitted in your answer.”

Now, I thank Albert and I thank his unidentified tutor because I have never read any Montesquieu. In fact, being the typical Hong Konger, I think it must be in my genes because I was educated in England but in the typical Hong Kong fashion, I was determined to get on to reading for the Bar as soon as possible, so the options or subjects I chose to study at Cambridge did not involve any jurisprudence. Therefore, I have been learning jurisprudence on the job, as it were, instead of getting myself immersed in the principles and therefore I have read no Montesquieu.

So, I had to quickly do a Wiki search of Montesquieu and found that he is a wonderful writer. I will have to read him in retirement because I don’t have the time at the moment. He is full of pithy sayings. It definitely illustrates the wisdom of the earlier generations and the importance of history. Because what is our law now is in fact based on the English development which refers back very much to the major power struggles in English history. And if we don’t understand that background, we don’t really appreciate what are the underlying reasons for the development of these principles.

Now I’d like to say something about Article 158 of the Basic Law because we had ample time to consider Article 158 of the Basic Law in draft.  First of all, we have the Joint Declaration and I’m not going to read out the provisions of the Joint Declaration but there was no fore- warning in it that there would be the application of the system of interpretation of laws by the Standing Committee of the NPC to Hong Kong. We saw “One country, Two systems” and we understood with all the things that were written in the Joint Declaration that we would have an independent judiciary and  that Hong Kong would be vested with the power of final adjudication. If we look to the British system, we understood that meant that Parliament could not dictate to the judiciary how it should decide in any particular case nor should the legislature dictate by reference to the legislators what they thought the law meant. Fundamental! That is the value of examining the second category which the unnamed tutor recommended, which is to consider legislative and judicial functions together.

We all know what was ultimately provided in the Basic Law . But we had gone through a process ( of consultation ), in which the judges were not necessarily involved openly and directly. But I can say that of all the things that my father most objected to, in the drafts of the Basic Law, was the system of interpretation which was proposed to be thrust upon Hong Kong. It doesn’t matter how many drafts it went through; at the drafting stage, the legal profession recognized that this was a dagger hanging over the head of the judiciary, and sought some kind of change to that by suggesting that interpretations could be binding prospectively and also that various mechanisms could be given to ensure that people had the opportunity of addressing directly the Standing Committee on the reasoning behind possible particular interpretation etc.

Even after the Basic Law was passed on the 1st July 1997, Margaret and I attempted to say that through the mechanism of the Basic Law Committee, perhaps Hong Kong people should be given the opportunity of addressing on potential interpretation, so that the Standing Committee would at least understand the implications of any particular interpretation under the Hong Kong system. But of course, as we know, none of that has happened and that suggestion was never taken up.

Why do I say it remains a burning question?  Because the system of interpretation, and we know it by looking at the Chinese Constitution, is a purely legislative function. So, it’s no salvation to say "Well, we’ve got two systems." Article 158 is the interface between the two systems. It is the means by which the Standing Committee can interpret every single provision in the Basic Law. When I say every single provision, that includes provisions for the protection of human rights in Hong Kong.

What are we facing today, as we see it, and never mind how the judiciary views it, but this is how the ordinary people in Hong Kong see it. We have had disqualifications of elected legislators. I did not argue Yau Wai Ching’s case at any level before the application for the Court of Final Appeal for leave to appeal. But factually, we know that up to the time of these two disqualifications, the practice in the Legislative Council had been to allow legislators to re-take their oath if there had been some kind of, what one might describe as "grand-standing" first time round. They were allowed to take the oath and they understood that they should take the oath properly second time round. That is exactly what both Sixtus Leung and Yau Wai Ching were offered by the President of the Legislative Council. That sitting at which they were due to re-take the oath was prevented by the pro-government forces. And then we know that the Chief Executive launched his legal proceedings.

It’s a minor point, it might not be very important in the scheme of things, but one of the procedures invoked by the Chief Executive was a procedure that was available only, under the law, to the Secretary for Justice or to an elector. The Chief Executive was a party and he deliberately instructed that he was to be made a party, to this separate procedure for disqualification on the basis that evidence was given by a civil servant, not by him, that he was also on the electoral role. He did not present himself as Leung Chun Ying, elector in the X-constituency. No, because if he had presented himself as an elector, under the legislation, he would have had to pay a deposit. So, what did he do? He presented himself as Chief Executive. The Secretary for Justice was already a named applicant and his position was entirely redundant. But all of these were done at public expense. This was briefly commented on by the judge in giving judgment. Is this the Rule of Law? So, yes, that is brushed aside, and yes, you may think it’s trivial. But it indicates really where the Executive is these days.

Why was the importance of the retrospectivity so underlined in the application to the Court of Final Appeal on the hearing of the leave applications? It was precisely up until that point, everybody's expectation was that the legislators would be able to re-take the oath and no doubt at that point, they would have done the necessary. What was the result? We had two disqualifications. We have since had more disqualifications. Then we have had disqualification of candidates.

If you look at Article 104, there is no reference to candidates for Legislative Council posts any more than there is reference to candidates for judicial office, ministerial office, or any other positions that are required to take oath under Article 104. But by the interpretation, that was extended to candidates for Legislative Council office. Today, we see it's being extended in spirit, if not in fact, to candidates for rural representatives. This is what happens when you have the untrammelled power of interpretation. Well, do I say that we have nothing that we can do as lawyers? All that we can do as lawyers --when we are instructed to do so and if our clients have the means to argue those cases or have access to legal aid, then we can put up arguments that point out the unique position of the Basic Law and “One country, Two systems”. It’s not encountered by any other constitutional arrangements, of which I am aware, whereby the judges may have their decisions, in effect, overturned by the legislative body. Because one of the proposals that we had put at the time of drafting was amendment of the Basic Law. If you disagree with the Court’s interpretation, then use the amendment power and that would be prospective not retrospective. If you look at the Basic Law, now and construe it as a whole, you will see a lot of institutionalization of the principle of prospectivity recognizing that retrospectivity is itself a potential danger.

Let’s not be complacent about the common law system. The common law system rests on a fiction, in saying that an interpretation of a particular statute means X, there can be no objection to that. But to say it has always meant X without realizing the consequences of saying, it has always meant X. Because there is almost certainly some degree of unfairness to people who have arranged their affairs on the basis that the law said Y until the Court then said: "No, it means X and it has always meant X". How does that sit with the principle of certainty?

So, Lord Sumption, who is often being described as the cleverest man in England (in present company, I would not dare to suggest that he is the cleverest man in England, I don’t know him at all), had said that it’s high time that this principle was re-visited, and it can be re-visited by examining the overriding principle of fairness.

Margaret and I were involved in another case to do with police disciplinary regulations. I always think that Margaret is the one who should be standing up here because she keeps meticulous records of everything. So, she will be able to tell you the full story of that particular case. And our argument in that case was something to do with retrospectivity.

The Court of Final Appeal decided that police were entitled to have legal representation before a Police Disciplinary Tribunal which previously had been denied them. All that they were allowed was to have choice of another police officer to represent them.  The Court of Final Appeal said, "No, they should have the entitlement to full legal representation". But that left a number of policemen who had not had that right. This was because the Police Regulation should be interpreted as always having allowed this. It’s just that you didn’t know about it. So, you lose your pension and you lose all the future accumulation of benefits you could have had because you didn’t have legal representation. Is that fair? Fairness is something, the Chinese expression I think is "公道自在人心". I think we, as ordinary people, the nuts and bolts of the Rule of Law, can tell the judges what fairness is. I ask you whether you think that’s fair and if you don’t ameliorate the unfairness of a system of saying a law has always been X, when it was thought to be Y and you have built all your business arrangements on the basis that it was Y. You may have incurred legal costs to fight the case on the basis that the law was Y. Yet it turns out to be X and you lose. Now, fundamental principles involving litigation is something that lawyers can think about and perhaps provide a workable solution. So even though it may be the law, the nuts and bolts are something that we should be concerned about.

We should be concerned about particularly, as I have said, the potential for interpretation. Let’s say based on Article 104, judges also have to swear to uphold the Basic Law. And I am upholding the Basic Law with two hands. [Martin Lee: That’s not sincere.] How dare you Martin say that this is not sincere when all of the cases that I have done since the 1st July 1997 are based on the Basic Law? And again, Margaret will remember that Audrey gave us the bum’s rush and told us: You are to appear in the Court of Appeal because the litigants there, are in desperate need of someone to argue on the legality of the provisional legislature. No preparation whatsoever, except of course this was something that we had considered. So, of course, we pitched up. We said to the Court of Appeal that "we are here to present some arguments on the legality of the provisional legislature". And the Court of Appeal looked at us: "What dragged you in here? Uninvited". And we said we wanted to present some arguments on the legality of the provisional legislature. And they said to us, "No". So, the litigants at the back said, "yes, please". So, we were immediately instructed on the spot, simply to argue the point on the legality of the provisional legislature.

I want to come back to oath-taking, because I have written quite a lot on oath-taking. One of the things I have written about oath-taking is that when defining these oaths that are required under Article 104, jostling, with the Oaths and Declarations Ordinance with the oaths that a witness has to take. When you look at the logic of the returning officer’s decisions in the Chan Ho-tin case. Basically, this is preemptive. It’s saying “You may have signed the declaration which says that you will uphold the Basic Law, but based on your previous conduct, I don’t believe you. So, I don’t believe that you are qualified. Your nomination is, therefore, invalid.” Imagine if judges started to say to witnesses at the point that they are being sworn, “You have a conviction for perjury. Based on your previous record, I don’t believe that you will be true to the oath that you are about to take. Therefore, I disqualify you as a witness.” The poor party calling the particular witness, will be very cheesed off, because the entire case may rest upon the presence of this witness and the testimony that he or she was about to give. And, of course, the other side can put to the witness when he is in the witness box: You didn’t tell the truth in the past. Why should the judge believe you now?

But no, no preemptive power, and how much worse is the preemptive power when it is exercised in the context of elections, when voters, and in some cases many voters, have nominated a particular candidate? What is the impact on not just the right of the candidate to stand for election but of the electors to have the candidate of their choice? So, depriving the candidate is one thing. But in effect, you are depriving the people who chose to nominate you, of the representation that they were hoping to have in the legislature.

We have said a lot today about judicial independence. I am not going to speculate about whether there are any arguments left under Article 158, since I am always prepared to argue the impossible, only to be told that "we have heard you, Ms Li. We have got your point", which shuts me up. We should be concerned, not just about judicial independence, but the whole machinery provided for access to the opportunity for justice. One of the essential elements in Hong Kong is firstly, judicial review, which is the principal tool for upholding the Rule of Law. People have a very mistaken view of judicial review. It seems to me, it is a win-win for the Rule of Law because no matter what the outcome, either the government will be held to have acted in accordance with law, which is a win for the Rule of Law. Or if not, the Court will declare: "No, it has not", which is still a win for the Rule of Law.

So, we have some legislators, one in particular who is a practising barrister, who has been turning her fire power on the waste of public money involved in granting legal aid to applicants for judicial review, forgetting that on the other side too, the government is represented by lawyers who are paid out of the public purse. I don’t know whether the public purse pays more generously for those who are acting for government or whether like us struggling lawyers who, according to this particular barrister legislator, are growing fat on the proceeds of legal aid. I know the saying that it ain’t over till the fat lady sings, but look I have lost a lot of weight here!

If I had been dependent on legal aid, typically having to wait for five years before my fee note is being looked at, this is after the case is finished, and then subject to gross slashing of fees which basically is a bargaining process. “Will you accept a 50%?”. "No". You can counter offer "how about a 75%?" "No". "We are going to get you down to 70% or 65%, how about that?" That means $10,000, by which time you may have waited for six years or more. Are you going to quibble over $10,000? No, you aren't. It is a wearing process because the other threat is what? It’s taxation. You then have to go and justify your fee. For a meticulous record keeper like Margaret, great! For me it means trawling through an inbox of may be 75,000 emails, to compile them together and say, "This is what I did. Because this is how we work these days.” What about all of the discarded drafts? When we are told we have to be confined to 10 pages, it’s a process of constant refinement. We have so much that we want to say and we whittle it down over and over again. But I worked on that process of refining, I didn’t just throw them into the bin, as will happen with the submissions, whether mentally or physically. But I actually worked on them to decide which were the most important points that needed to end up in the final draft. Is that work or is it not? So, if you do not keep your drafts, you might not be able to turn up at taxation and say "Please give me that additional $10,000, I really sweated blood and tears for it".

I have to come back to where we are right now. In the name of national security, we have had the banning of the Hong Kong National Party. I won’t bore you with the little excursion to the Department of Justice to ask the Director of Public Prosecutions whether under the legislation, applying the strict wording of the legislation, we, the lawyers, who are advising and have advised but continued to advise after the banning, giving legal advice on the proposed appeal, whether we, ourselves, had committed an offense and whether therefore, the DPP will, recognizing the right of every person to confidential legal advice, will say, "No, we give an undertaking that we will not prosecute you". This very interestingly, was the subject of a radio programme and the former DPP Grenville Cross, came forward to say "If I had been in office today, I would have given that undertaking." But he said, "The lawyers may have committed a technical offence." I wait to be arrested.

Just one more word about national security. I describe the approach of the Secretary for Security as the prophylactic approach to national security. What do I mean by the prophylactic approach to national security? The practising of the political equivalent of safe sex between consenting adults to avoid unwanted propagation of ideas perceived to be inconsistent solely with particular articles of the Basic Law. Without looking at the Basic Law as a whole, including its preamble which refers to the establishment of the Hong Kong SAR and the principle of "One country, Two systems". Why do I mention it? Because what we are getting and what have seen is the rhetoric of independence, banned. What does that say for the independence of the judiciary? What does it say about the Independent Commission Against Corruption? What does it say for the Independent Police Complaints Council? And all of the other bodies that may not have “independent” in its name. The Electoral Affairs Commission claims to be independent. What does that mean today? We know that self-determination equals independence, so you cannot advocate self-determination. What else can we not advocate tomorrow?

Under "One country, Two systems", what we get is the emphasis of "One country". Are we allowed even to discuss or to campaign for the maintenance of our system or is that prophylactically dangerous for national security? Who knows? This is the reality of the power of interpretation. This is what we, as a community, and we, as lawyers, face, and this is the greatest danger, as I see it, to the Rule of Law in Hong Kong.

May I conclude by saying thank you all nuts and bolts for listening so patiently, and this nut ain’t bolting!

Speech by The Right Honourable the Lord Mance Press here

Speech by The Honourable Mr Justice Kemal Bokhary, GBM, JP Press here

Welcoming Speech by Mr T L Tsim Press here