The arrest of leading pro-democracy figures in Hong Kong, especially Martin Lee QC, should give rise to the utmost distress and concern, especially since China’s Liaison Office in Hong Kong asserted that it can effectively interfere with the policy and functioning of the Hong Kong SAR Government.

In the years from 1981 to 2013, I spent nine years teaching law at the University of Hong Kong, seven years at the Chinese University of Hong Kong and one year at City University of Hong Kong. I had the pleasure of having some of the present-day senior judiciary as students. 

Court of Final Appeal
Court of Final Appeal. File photo: GovHK.

From the early 1980s, I was very much disturbed that the laws we taught had no consent from the people they governed, due to the lack of any real semblance of democracy in Hong Kong.

Of course, that suited the British and Chinese governments. I guess it also suited me as I regularly banked my paycheque. Tacit consent was how we salved our consciences.

I wrote a snippet in the Hong Kong Law Journal circa 1982  entitled “I Trod with Mastodons,” seeking to articulate the city’s bemused rejection of the American and French Revolution’s stamp on world history, namely that only those who ruled with the consent of the governed were legitimate.

Much of life is about perceptions. Hong Kong has long been perceived as very different from mainland China. It’s safer, its systems less arbitrary. Officials are more restrained, disciplined. A lot of that is due to the fundamentally different legal systems.

basic law
Basic Law. File photo: GovHK.

Hong Kong’s laws and lawmakers may have had little claim to legitimacy but its judges did, as they were independent of the lawmakers. That changed to a degree, perhaps fatally, with the Chief Executive’s referral of the Court of Final Appeal’s decision in Ng v Director of Immigration to the Standing Committee of the National People’s Congress.

This is a body with no claim to any kind of independence from the government, indeed, it is the essence of government. My lament was published as an article in the South China Morning Post entitled, “The Day the Law Died in Hong Kong,” in the early 90s.

From the mid-1980s, I have had the privilege of writing books and articles with Professor Zheng Chengsi, of the Chinese Academy of Social Sciences, about the development of law in China, which in those days was almost totally concerning intellectual property as a mode of technology transfer from the Western world.

There were no contract laws, property laws, even road traffic laws. Only a short time before, advocating law was a counter-revolutionary offence.

National People's Congress npc beijing great hall
Photo: Lukas Messmer/HKFP.

Those were heady days when the thousands of years old Chinese cultural debate between anti-legalist Confucianism and Legalism struggled to contend in the ideology of the Chinese leadership.

Confucianism, in the sense of yielding to the interests of others, is, of course, a major plank in humankind’s golden rule of morality. But the state is more than an aggregation of others.

Greek-based civilisations developed democracy, natural law, and then human rights as a bulwark against the excesses of the state. In China, Legalism of course won and we have what is called the Chinese legal system.

But many scholars fought hard to insist it was merely a system of administrative authorisation as it lacked the hallmarks of rule of law. Principally, it lacked any semblance of an independent judiciary, the umpires as to how the game, whichever game is chosen, is to be played.

chinese china flag
Photo: Flickr.

In China, the winning team (the Chinese Communist Party) tells the umpires what the rules of the game they are playing mean. When you’re extradited to China to face a criminal charge those are the umpire or judges you face.

In a similar way, around the time of the accession of the current Chinese leader Xi Jinping, independence of the judiciary was flirted with as a method of controlling Communist Party discipline, if nothing else.

There was a tragedy in the eyes of the chief justice of the Supreme People’s Court when he announced – he was probably coerced – that independence of the judiciary was not an ideal to which China aspired. Indeed, Beijing rejected it.

Today, Chinese laws and lawyers have multiplied exponentially. But those laws are different to the kind in Western laws. The Chinese constitution, which has been amended multiple times, was never intended to bind the Chinese Communist Party (CCP). It’s an action programme or statement of intent.

supreme people's court beijing
The Supreme People’s Court in Beijing. File photo: Wikimedia Commons.

No court can ever hold the government to the provisions of the constitution. And laws made pursuant to it – namely all laws of the People’s Republic including the Basic Law governing Hong Kong – are not laws like ours. They bind everyone except the highest level of the CCP. The “Core” of the party, now designated as one man, Xi Jinping.

The Core is and always has been above everyone and all law. Marxist theory and Confucian tradition happily dovetail. That’s where dialogue between Chinese and Western jurists is so often misconceived. Both sides mistakenly assume laws which bind everyone. Or worse, those that know deliberately don’t articulate it.

The current mainland mantra of rule of law doesn’t affect this. It is and always has been in China a very different concept of law. Adding the preface of, “Rule of,” doesn’t change this. And of course the key to Dicey’s concept of Rule of Law is an independent judiciary.

china hong kong emblem
File photo: GovHK.

If China is to equal the United States in power and influence, its currency the Yuan, must become an alternative to the US dollar. But that ultimately depends on investors’ confidence in the robustness and independence of the judges in its legal system. A nice irony. Shooting yourself in the foot seems an apt expression.

Against this background, in the last decade, we have seen the people of Hong Kong struggle with their identity. Martin Lee is rightly termed the “Father of Democracy” in Hong Kong. Taxi drivers used to tout passengers to make bets on how long he would survive after 1997.

I remember Lee as one of the highest-paid silks (Queen’s Counsel, or Senior Counsel these days) in Hong Kong. He was more in demand and more expensive than legal practitioners bought out of London.

martin lee tiananmen
Martin Lee at the 30th-anniversary vigil of the Tiananmen Square massacre. Photo: Holmes Chan/HKFP.

He commanded those fees because he was very good in court. He took on headline cases like in the 1980s, defending the son of media magnate multimillionaire Deacon Chiu, who had run over a policeman at an ID card check roadblock. People then were not used to the police being challenged in court.

Stories abounded of his anonymous financial assistance for students of poor families seeking University education. I’ve only met him once on the street, where I stopped to offer my admiration. He’s a lawyers’ hero, and we are a cynical lot.

Lawyers know technical breaches of laws happen all the time. Crossing the road, what you say or write, filling in a form, where you go. Whether prosecution is launched is a very different question.

1997 handover
Photo: GovHK.

Almost every day of the week and especially on Sundays, gatherings in Chater Garden in Central, whether by domestic helpers or model boat clubs, constitute breaches of the colonial public order legislation as gatherings of more than three persons require a permit.

Choosing whom to prosecute shows what a government stands for and where its priorities lie. Protestations of equality before the law just don’t cut it.

As a Catholic, Martin Lee would know something about the role of martyrs. Heavens, pardon the pun, it’s not impossible that one day he might be proclaimed a saint.

What you sanitise today might conceivably be canonised in future. Perhaps someone should tell both governments?

Michael D Pendleton

Michael D Pendleton

Emeritus Professor Michael D Pendleton taught for 17 years at Hong Kong’s three university law schools, practised law with Deacons, Baker and McKenzie and was also a member of various Hong Kong Law Reform Commission subcommittees.