The opening of the legal year in Hong Kong is a ceremony reflecting the common law traditions of the British justice system, and occurs in January every year.
It has all the pomp and circumstance one might equate to the opening of the legal year in England and Wales, but juxtaposed against the fact that it is all occurring in a territory of the People’s Republic of China. I was struck by its symbolism when I attended in January 2018.
At the time, the focus of legal professions in the Asia-Pacific region was more on the crumbling rule of law in Malaysia than in Hong Kong. In a portend of what was to come however, there were mutterings about erosions of the rule of law by the executive government of Hong Kong. That is to say, the government principally appointed by Beijing.
In a happy irony later that year the ruling Barisal Nasional coalition was voted from office for the first time in Malaysia’s history, significantly bolstering and restoring the rule of law in that country, although things have slidden downward again since then.
One country, two systems had served Hong Kong well to that point in time. No one at the time seriously thought the rule of law in Hong Kong was under threat. It’s apex Court of Final Appeal boasted eminent jurists from other common law countries, notably England and Wales, Australia and New Zealand. Amongst them the honourable Robert French AC ,then recently retired Chief Justice of the High Court of Australia.
Those appointments were in themselves symbolic as a demonstration that Hong Kong followed the common law tradition and adhered to the rule of law, and that its courts could be trusted by litigants who conducted their commercial affairs in Hong Kong.
The hallmarks of the erosion of the separation of powers and the rule of law are everywhere.
At the Hong Kong opening of the legal year the Chief Justice of the Final Court of Appeal speaks publicly and does so every year. In 2018 the Chief Justice was Mr Geoffrey Ma Tao-li and he said: ‘ The legal system in Hong Kong is the common law system. This system has been in place for nearly 180 years and has served the community by contributing to Hong Kong’s success over the years. It is regarded as vital to the continuing success of Hong Kong, not only from financial or business points of view, but also for everyone in the community as a whole.’
He went on to explain in simple terms the independence of the judiciary in Hong Kong, thereby underscoring the importance of the doctrine of the separation of powers. If there was nervousness amongst the legal profession and the people of Hong Kong at that time, the seed of it was a concern about whether the appointed executive government of Hong Kong would respect these principles. Whether it would continue to uphold the doctrine of the separation of powers.
What a lot has changed in just 2 1/2 years, culminating in the recent introduction of the new national security law. Introduced by this law are new criminal offences and new sentences of imprisonment that include up to life imprisonment. Further, it is now lawful for security personnel from mainland China to operate in Hong Kong.
In a moment, everything that concerned Hong Kong citizens has come to pass. Beijing has at last demonstrated what one country two systems really means; that whilst it may be two systems, it remains that way only at the generosity and whim of the mainland. The hallmarks of the erosion of the separation of powers and the rule of law are everywhere.
In a clear demonstration of that, trials may now be heard in secret, without juries and by hand-picked judges. On the face of it, that would appear to constitute an interference in the usual operations of the judicial arm of government.
It must be acknowledged that in Australia currently we have our own national security criminal case which is being conducted in secret, that of lawyer Bernard Collaery and Witness K, causing unease in some quarters. Of course without a proper understanding of the matter – given it is not public – it is a little difficult to reach a conclusion about it.
Returning to Hong Kong, what has happened there is very significant for Australia.
It is now impossible not to see the Chinese agenda, and 100,000 Australian expats call Hong Kong home. They have jobs, businesses, property and interests there. We have very close business and personal relationships with the citizens of Hong Kong, and many Hong Kong students study in South Australia and Australia broadly.
But for a lawyer, it is the sudden and swift erosion of the rule of law that is so confronting.
In Australia we simply assume that our government and our citizens will understand and respect the separation of powers and the rule of law. However it can be lost so quickly if the citizenry do not protect these fundamental keys to our successful democracy. It is vital to teach our children through education in Civics what these concepts are, what they mean, and of their importance.
As we engage in our public dialogue about all number of things that may lead us to disagreement, if the lesson of Hong Kong teaches us anything, it is to remain vigilant and agree fiercely on protecting the rule of law. Let’s not get so caught up with what we may perceive is the latest first world injustice that we lose sight of the fundamentals.
Lawyers daily engage in ‘the justice game’ and by so doing we are upholding the finest traditions of the common law and the independence of our legal system. But that was also the case in Hong Kong for 180 years and yet it is now teetering, its erosion occurring in but a few years – albeit in circumstances where its peoples were always looking behind their shoulders at the increasingly large shadow of Beijing.
For me, Dwight Eisenhower put it best when he said: “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”
Welcome to the nightmare of Hong Kong.
Morry Bailes is senior business advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.
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