Do you ever wonder how someone with an apparently impressive curriculum vitae can be so inexcusably dumb?
Dominic Raab, the current secretary of state for foreign affairs in British Prime Minister Boris Johnson’s cabinet, studied law at both Oxford and Cambridge, and worked for the human-rights organization Liberty and then at The Hague, bringing war criminals to justice.
All that exposure would, one imagines, have made him fully conversant with the working of the common law, its application to Hong Kong, and its incompatibility with mainland China’s legal system.
Yet his recent announcement indicates that his capacity to understand, let alone analyze, the emblematic significance of Hong Kong’s Court of Final Appeal (CFA) is totally lacking.
Raab stated that in the light of the National Security Law imposed by Beijing, he had begun consultations with Lord Reed – the president of the UK’s Supreme Court – “concerning when to review whether it continues to be appropriate for British judges to sit as non-permanent judges (NPJs) of Hong Kong’s CFA.
Every genuine common-law lawyer in Hong Kong considers that a number of the provisions in the National Security Law give rise to concern.
The heart of those concerns can be simply stated.
Ordinarily, the laws on Hong Kong’s statute book are processed through the Legislative Council, which considers and debates the proposed terms before they are gazetted into force.
A primary requirement of any law is that its terms are sufficiently clear for members of the public to be able to know what is and what is not lawful.
A number of the provisions of the National Security Law, not having had the benefit of the process of distillation through the Legislative Council, and emanating from the mainland’s jurists, lack that degree of clarity that the common law demands and give rise to correlative anxieties.
However, despite the parallel provision that empowers the Hong Kong chief executive to nominate certain judges to hear cases brought under the umbrella of the National Security Law, those same cases still have to be processed through Hong Kong’s extant judicial hierarchy.
In practical terms, that means that ultimately, any such case may be brought before the CFA.
The composition of Hong Kong’s CFA, under the Basic Law, can and frequently does include a non-permanent judge (NPJ) drawn from the leading common-law jurisdictions: the UK, Australia, Canada and New Zealand.
In practice, historically, each of these jurisdictions has agreed to permit the very finest of their legal jurists to accept the invitation to become an NPJ.
In this respect, Hong Kong is unique. Each of these overseas NPJs has made a highly significant contribution to the development of the law. The decisions of the CFA are highly regarded throughout the common-law world.
In much the same way that an outstanding musician can inspire the other members of an orchestra or a gifted soccer player can influence the other members of the team to lift their game, so it is with an outstanding jurist on a multi-member appellate tribunal.
It can be compared to introducing another stream of consciousness into a determination of the issue before the court.
The genius of the common law is its capacity to mutate to reflect the changing perceptions of every aspect of life.
Paramount, in the context of the CFA, is the active linkage that the NPJs effect with the entire body of the common law.
Even the most ignorant member of Hong Kong’s executive recognizes that its independent judiciary is what makes the special administrative region so unique. International commercial entities have confidence not only in its incorruptibility but the level of intellectual probity.
The presence of the NPJs from other jurisdictions serves as a warranty of juridical integrity.
In so saying, I do not detract from the pre-eminent quality of Hong Kong’s indigenous CFA judges. Yet it would be artificial to ignore the added value of the international element on the bench.
That Raab would even contemplate the possibility of withdrawing the UK’s NPJs evinces a measure of ignorance that contrasts starkly with his own antecedents.
Is all his learning and experience merely cosmetic?
Every lawyer knows that short of a political directive from the central government, any alleged breach of the National Security Law must run the gamut of the courts, ultimately falling for determination by the CFA.
The true test of the one country, two systems principle will be exposure of a case brought under the National Security Law to analysis by the best legal minds, that is, in the CFA.
The CFA is the guardian of the integrity of Hong Kong’s legal system.
Candidly, only a fool would think of depriving the CFA of its UK judicial component. It would be a classic case of cutting off Hong Kong’s nose to spite Beijing’s face.
Lord Reed had already observed that the effect of the National Security Law “will depend upon how it is applied in practice.”
What kind of convoluted mind would contemplate damaging Hong Kong in order to vent the UK’s objection to the imposition of the National Security Law unless, perhaps, he wants Hong Kong’s best brains to emigrate to the UK?
It is reminiscent of Donald Trump withdrawing Hong Kong’s special trading status with the United States. Instead of taking steps to bolster the territory’s ability to cope with what is perceived to be a repressive measure imposed from the center, Hong Kong’s traders are singled out for punishment.
Truly, with “friends” like Raab and Trump, Hong Kong needs no enemies.
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Neville Sarony QC is a noted Hong Kong lawyer with more than 50 years at the Bar.