Why would chief executive transcend above legislature when kings of centuries past submitted to the rule of law as old as Magna Carta?

Paul Harris compares Zhang Xiaoming's comments on the transcendent position of the chief executive with statements by English kings in centuries past claiming to be above the law

PUBLISHED : Tuesday, 29 September, 2015, 12:52pm
UPDATED : Tuesday, 29 September, 2015, 11:44pm

Much fear, alarm and shock has been caused by the remarks of Zhang Xiaoming, director of the central government's liaison office, about a transcendent position of the chief executive supposedly above the judiciary and the legislature.

Read more: Transcendent: the word at the heart of a battle to define Hong Kong's political system

As the chief justice has pointed out, Zhang is obviously wrong in law. Articles 2, 19, 25 and 85 make it clear that the Hong Kong courts have independent judicial power, and everyone (including chief executives) is equal before the law. This being so, there is no way that the chief executive can be above the courts. The positions of the chief executive and the legislature are also defined in the Basic Law, and it is equally wrong to suggest that the chief executive is in a transcendent position above the legislature.

In addition, Article 8 of the Basic Law provides that the common law, as previously in force in Hong Kong, continues to apply, and it is a fundamental principle of the common law that everyone, including the head of government, is equal before the law.

The struggle to prevent the king placing himself above the law was only resolved with England's Bill of Rights in 1688

Zhang's provocative remarks carry strange echoes of statements by English kings in past centuries that the king was above the law and the courts. This year is the 800th anniversary of King John's reluctant signature of Magna Carta. In the years after Magna Carta, the principle which it enshrined, that everyone is equal before the law, became generally accepted as the common law of England, and was put into a famous maxim by 14th-century scholar Henry Bracton: "The king is below no man, but below God and the law."

This principle, universally accepted in England, did not reach Scotland until 1603, when James VI of Scotland became James I of England. When the chief justice, Sir Edward Coke, explained it to the king, "His Majesty fell into that high indignation as the like was never known in him, looking and speaking fiercely with bended fist, offering to strike him, etc."

Sir Edward fell to all fours and humbly beseeched the king "to take compassion on him and to pardon him if he thought zeale had gone beyond his duty and allegiance. His Majesty, not herewith contented, continued his indignation".

James claimed the principle was treason, but Sir Edward did not give way to the king's demand that he be placed above the law. The confrontation was the start of the great constitutional struggle between the Stuarts and Parliament.

James' son, Charles I, claimed the right to arrest and imprison citizens by his own decision, with no right for the imprisoned to challenge their detention in court. Timid judges agreed with him in the "Five Knights case" in 1627. This caused such concern that Parliament forced Charles to sign a document called the Petition of Right in 1628, promising that no one would be imprisoned save by lawful order of a court. The Petition of Right remains an important precedent in all common law countries, and the Five Knights case was referred to as recently as 2008 by the United States Supreme Court in Boumediene vs Bush, when it struck down laws providing for indefinite detention without trial.

The struggle to prevent the king placing himself above the law resulted in the loss of 500,000 lives in the English, Scottish and Irish civil wars of the 1640s, and was only resolved with England's Bill of Rights in 1688. Since then, in the words of Dr Thomas Fuller in 1733, "Be you never so high, the law is above you." Those words came into the law of Hong Kong with the reception of English common law in 1843. Let us hope they never leave it.

Paul Harris SC is a barrister and founder of Hong Kong Human Rights Monitor. His latest book is Raising Freedom's Banner: how peaceful demonstrations have changed the world