Hong Kong’s rule of law depends on people’s values, not foreign judges
N. Balakrishnan says the presence of foreign judges is not the critical factor shaping the city’s judicial independence, as some have argued, and no judicial system is entirely oppressive because of some quirks
It is no longer acceptable to have 19th-century prejudices such as the belief that the absence of melanin in the skin makes a person superior. However, the equally 19th-century belief that people from Europe or the US cannot be judged by “oriental” laws is still not only acceptable but considered a benchmark of one’s “liberal” thought, especially when it comes to Hong Kong and China.
It does not require much stretch of the imagination to see that those who insist on having “foreign” (read “white only”) judges in Hong Kong’s Court of Final Appeal were motivated by the belief that the Chinese are congenitally incapable of interpreting the white man’s law correctly. This was supposedly to reassure foreign investors that they will be judged “fairly” by a panel of at least some fellow white judges.
It is the same attitude that led to the demand in “extra territoriality” in 19th-century China that white people in “treaty ports” should be judged by white judges only.
Quite a lot of scholarly work has been done on the decisions by these “extra territorial” courts imposed on China by imperial powers, and there is no reason to believe they were any fairer or more objective than the Chinese courts.
Every legal system, including British law, has provisions that allow for the repressive treatment of people who disagree with the regime on ideological grounds. Just ask Tsang Tak-sing, a former home secretary of Hong Kong who was arrested and jailed by the British colonial government in 1967 for distributing political leaflets.
Many countries following British common Law have provisions on their statute books, such as the Internal Security Act in Malaysia and Singapore, that allow for detention without trial. India still has colonial-era sedition laws on its books. None of these countries have foreign judges, and foreigners pouring billions into these countries seem to accept their legal systems. Singapore abolished all appeals to the Privy Council in the 1990s and seems to have suffered little as a result. Japan has no white judges, either, but has managed to be the world’s second-largest economy until recently.
I have had occasion recently to deal with Chinese and Hong Kong law on some commercial issues involving trademarks, and I have found Chinese law to be clearer and faster than Hong Kong law, which seems to be bogged down in minutiae designed to generate legal fees rather than put the public interest first.
Different jurisdictions have different legal quirks but such quirks do not make the entire legal system oppressive. Those following the British legal tradition find it appalling that the US president appoints Supreme Court judges based on their political orientation. On the other hand, Americans find the British legal system, with no written constitution and guaranteed rights, incomprehensible.
It’s not just laws, but the enforcement of laws, that change, depending on the unwritten rules of society at a particular time. Ultimately, laws cannot be imposed on a society that are not in tune with its fundamental values and unwritten rules.
Hong Kong people queue up and support freedom of speech because they have been schooled in it for many years and not because of some foreign judges sitting in the Court of Final Appeal. Hong Kong’s rule of law and its freedoms will rise or fall depending on the attitudes of society at large, and foreign judges are only bit players in that drama.
N. Balakrishnan is a former foreign correspondent and an entrepreneur in Southeast Asia and India