"The Rule of Law and Its Importance to Hong Kong" - Welcoming Speech by Mr. T L Tsim

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

Welcoming Speech by Mr T L Tsim

The Rule of Law and Its Importance to Hong Kong

Welcome! Ladies & Gentlemen,

Welcome! And thank you for finding time to attend today’s Project Citizens Foundation Forum on “The Rule of Law & Its Importance to Hong Kong”. You will be hearing from our distinguished panel of speakers in the course of the morning, and they are Lord Mance, Justice Bokhary and Senior Counsel Gladys Li. Jamil Anderlini, Asia Editor of The Financial Times, will moderate the discussion after their speeches. Jamil still has his work visa, I’m glad to note.

In the television series The Crown, a young Queen Elizabeth II, said to Anthony Eden, her then Prime Minister, these comforting words, in the wake of the Suez Crisis of 1957. She said, “History is not about men who did nothing.” In the context of our situation today, in the not too distant future, history will likely record, “The rule of law died in Hong Kong because the men and women of this city did not do enough to save it.” The electorate of West Kowloon who stayed away from an important by-election had tipped the political balance in favour of an authoritarian, unenlightened government. In our case, “History is about men who did nothing.

Some might say people would act if they had understood how important the rule of law was. But on the face of it, they do. In the surveys that we, the PCF, and other organizations have done over the years, the people of Hong Kong have always put the rule of law as their number one concern, number one core value and number one priority. It is just that they do not see quite as clearly the intrinsic connection between politics and the law. Maybe they do not quite understand that it is legislators who make laws and it is they themselves, the electorate, who elect the legislators. If they return legislators who blindly follow the dictates of whoever happens to be in power, they will get the government they deserve.

You’ve heard the saying, “Money does not grow on trees.” Well, neither does the rule of law. Nor does the rule of law exist in vacuum. It depends, for its sustenance, on the society from which it springs. There was a time when many books of geography and history started with an introductory chapter on The Land & Its People. For some reason never quite adequately explained, the land and the people of the Middle Kingdom, for all their intelligence and hardwork, never managed to breed, nurture and nourish the rule of law as practised in civilized countries in Europe and America.

The rule of law in Hong Kong was imported and transplanted onto Hong Kong soil when the British colonial administration took over the government of Hong Kong in 1842. It has many essential, vital and fundamental constructs, the most important of which, to my mind, is that it is a common law jurisdiction and shares the cumulative wisdom of other common law jurisdictions through the ages. As such, Hong Kong’s law courts follow due process and judges are not in a position to make arbitrary judgments at the direction of a government official. The separation of powers, of the executive, legislative and judicial, is a time-honoured tradition and an established fact. This separation happens to be essential for the rule of law to take hold.

Hong Kong has an independent judiciary. We have been guaranteed that by The Basic Law which states in its Preamble, “the People’s Republic of China has decided that … under the principle of ‘One Country, Two Systems’, the socialist system and policies will not be practised in Hong Kong”. The non separation of powers is part and parcel of the socialist system of government. There is no need, and there is no sense, therefore, in passing laws that make Hong Kong toe the socialist line in 2018 when the fifty year period covered by the principle of ‘one country, two systems’ still has twenty eight and a half years to run. Under the Basic Law, the power of the interpretation of the law is already a matter for the Standing Committee of the National People’s Congress.

The fact of the matter is: politics trumps law, and power trumps politics. (The use of the word “trump” is unavoidable here and irony is not intended.)

What I have just stated, that politics trumps law and power trumps politics is medieval; it is the morality of the Dark Ages. Civilized societies have learned to reverse that equation and have benefitted from that fundamental reversal which puts civilians in charge of the military top brass and their weapons of mass destruction. By reversing, I mean it is now politicians who direct the armed forces, and it is often lawyers who become leading politicians. We have many excellent examples of that in our own midst today: Martin Lee, of course, Audrey Eu, Alan Leong, Margaret Ng, Alvin Yeung, Dennis Kwok and Tanya Chan. (There might have been others, but I can only remember the names of the ones I respect.) When some of the best and brightest of our generation and yours are throwing themselves forward, putting themselves in harm’s way, and getting arrested for their well-intentioned and high-minded efforts, what does that tell you about our politics, our government and our city?

The ascent of man happens when wise men make intelligent decisions for the benefit of the community. That is what good government is about. It is government by the wise and meritorious for the common good, instead of government by the most powerful, most fearsome bullies and their court of sycophants and liars. No good will come to a society which rewards lies and liars. If 2 and 2 make 5, there can be no reliable basis for engineering, science and mathematics. It is a fact that, under unenlightened dictatorships, science and arts stagnate and the economy staggers. This is the opposite of the ascent of man. Under enlightened dictatorships, as distinct from unenlightened ones, science & arts and the economy may give the illusion of moving forward, but not for long, as they do not have the rule of law to defend them when raw, unreasoning and dictatorial power inevitably re-asserts itself.

We have noticed in Hong Kong how China’s open door policy and the relaxation of tight political control under Party Secretaries Hu Yaobang and Zhao Ziyang had ushered in the period of strong economic growth and technological advances in China which followed their stewardship. It is too early to speak of a Chinese Renaissance and the country has still to go through The Enlightenment. If China’s current leaders really want the country to take giant strides in scientific research and not have to rely on other countries’ technology, they have to free their best people from the fetters of the strictest thought control. Creativity and innovation are the products of minds that are free from the shackles of conformity and blind obedience. It is no coincidence that in a long history of five thousand years, the Chinese people can only point to four major inventions. With a population of one fifth mankind, we should really hang our heads down in shame.

The “Holy Grail” in Chinese politics is 長治久安 which might be translated as “sustained stability”, with the emphasis on the word sustained. We are not there yet. And the rule of law, to my mind, is what will lead us to that political stability. It is the antithesis to anarchy; and it is a much better option than the rule of force and its attendant, the rule of fear. In politics, a change of government is what will redress the power and policy balance of the right and the left. In the United Kingdom, under the Tories, the government may be pro-business. But under a Labour Government, the policies are likely to be pro-labour. This is healthy. This makes for a balanced and stable country, instead of one which is lopsided, unhinged and goes to extremes. True democracies that go through a change of government from time to time have this self-correcting mechanism. And so, not only does the rule of law contribute to political stability, a democratic system of government does that as well. Three cheers for democracy.

People who live in societies that are well ordered by the rule of law can go about their daily business secure in the knowledge that so long as they stay within the law, no harm will come to them. We in Hong Kong had gotten used to that. But, going forward? What’s going to happen after 2047 when the fifty year period covered by the Sino-British Joint Declaration expires? Will our lawyers and judges have to unlearn everything and embrace instead a different system of laws and practices all over again? What kind of brave new world awaits Hong Kong? We need to think about these things and try to find workable solutions. Above all, we need to keep the rule of law.

But, enough from an amateur. Now let’s hear it from the professionals. Thank you.

Speech by The Right Honourable the Lord Mance Press here

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

Speech by Ms Gladys Li, SC, JP Press here