tim's experiment

I was surprised to read of Mr Grenville Cross’s attack on the Secretary for Justice, not because Mr Cross has on so many previous public appearances been a staunch defender of such secretaries, though he has, nor because I disagreed with it. I often disagree with Mr Cross. What surprised me was to see a breach of the unwritten rule which states that those who have retired from the vineyard should speak kindly of those who now toil in their place. This is not a law, of course, and Mr Cross has the usual citizen’s right to throw brickbats at the Secretary for Justice, if he supposes that the rest of us are not doing enough.

Mr Cross had, in effect, two complaints. The first was that it ill behoved the Secretary to complain that people were making public points about the right of abode for domestic helpers case, when he had made an unsuccessful effort to put the same points before the court himself. People had been publicly complaining that if the helpers were accorded the right we would be swamped by hordes of helpers, helpers’children and helpers’ husbands, all of whom would impose mammoth and unmanageable expenses on the education, welfare etc systems. This seems a bit unfair, or at least I hope it is. The objection to the campaign waged by opponents of the helpers is that so much of it is inaccurate. I do not know what points the government lawyers hoped to make in the late submission which the judge refused to entertain, but I suppose they were not going to say that the helpers would have to be paid the minimum wage, which is not true, or that they would all have an undeniable right to land in Hong Kong, which is not true either, still less that their children would have such a right. The whole point of the first right of abode catastrophe was for the government to establish, with the aid of Beijing, that you cannot inherit the right of abode from your mother if she did not have it when you were born. So if 100,000 helpers (who are of course already here anyway) got the right of abode tomorrow the number of children they would be able to import would be … zero. So I suppose, though of course we cannot be sure, that the government’s offerings on the implications of the judgement were going to be a good deal more nuanced than those of, say, Selina Chow.

Still, this is the sort of complaint which someone perhaps ought to have made. There is a whiff of hypocrisy in the official line that if we can’t say it in court nobody else can say it out of it. Mr Cross’s second complaint takes us into deeper waters. This was that people should be allowed to say what they like, as judges would not be influenced by it anyway. Lest I brutalise this by abbreviating it, here is a quote courtesy of the Post: “Strong emotions are sometimes stirred up in the community by particular court cases, both criminal and civil. But judges reach their decision on the basis of the evidence and on the application of the law, Judges are taken to be capable of excluding improper influences from their reasoning process, and this is fundamental to our legal system. His (the Secretary for Justice) whole emphasis should have been upon reassuring people that there is no reason to think that the judge will not reach a true decision on the evidence before him and the law.”

Now it is of course a fundamental notion of the legal system that judges OUGHT to reach their decisions without regard to “strong emotions in the community”, based solely on the evidence and the law. The principle is old enough to be enshrined in a little squirt of Latin: fiat justitia ruat caelum, or Let justice be done though the heavens fall. The maxim is usually attributed to the 18th century judge Lord Mansfield. But while this is a cherished objective Mr Cross is surely going too far when he says that it is fundamental to our legal system that this is what always happens. Judges are fallible human beings, after all. The law may, as Gilbert and Sullivan put it, have no fault or flaw, but people are people,  and judges are people too.

In fact in my explorations of legal history I have found that it is almost an invariable rule that any particularly stirring and cherished statement of the inviolability of human rights and the freedom of the subject turns out on close examination to have been a minority speech by a judge whose colleagues were succumbing to the passions of the hour. Sometimes there is not even a minority. Lawyers now cringe at the flimsy technicality used to justify the conviction for treason of Willam Joyce (aka Lord Haw Haw) in 1946. Joyce, an American citizen, had broadcast for the Germans during the war and been much hated. The people wanted him hanged and hanged he was, with the active connivance of the Court of Appeal and the judicial part of the House of Lords. Judges are part of the community and they cannot avoid feeling the passions which animate it. No doubt in a decade or two we will be embarassed by the contemporary judges in the UK and US who are prepared to trample on rights claimed since Magna Carta because they may impede the “War on Terror”. But that’s the way it goes.

The point, I think, is that there are some things which an experienced judge can put out of his mind and some which may be more difficult. I do not doubt, for example, that the sundry comments pro and con Nancy Kissel were like water off a duck’s back to senior judges, supposing they heard them. The merits of particular individuals or participants in court cases, the finer points of evidence, whether particular forensic techniques can be relied on, are the sort of things which we expect judges to be able to exclude from consideration. It is harder to be as completely confident when the sentiment being repeated on all sides is that a decision in one particular direction will lead to the end of Hong Kong civilisation as we know it, or indeed that if the decision is made in that direction then a political body in Beijing will be invited to overturn it, at the cost of further injury to our autonomy and rule of law. We may hope that judges will be able to ignore matters of this kind, but we are not required either by the law or common sense to assume that this will always happen.

In the end the rule of law is not just a matter for lawyers. It demands the support of all of us. One of the items of support required is that people should be moderate and circumspect in public discussions about matters upcoming. This is not a matter of law – even in Legco the ” sub judice”  rule is a convention, not a statutory requirement. It is a matter of good citizenship. People who make extreme predictions about the result of upcoming cases make it harder for the judge to deal with the matter dispassionately, and harder for us to believe that he has succeeded. So, unaccustomed as I am to agreeing with the Secretary for Justice about anything, I am with him on this one. People should shut up.

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I was reading a history book the other day, which I often do for fun, when I noticed that something was missing. This is not a serious omission and the book – “Why the West Rules – for now” by Ian Morris, can be recommended as a stimulating read. Still, when I was a fulltime student of these matters the numbering of years followed a simple system. The year you were talking about had a number. Before the number were two letters. If we were in the last 2000 years or so the two letters were AD, which stood for Anno Domini. So we are now in AD 2011. Anno Domini means “in the year of Our Lord”. The Lord referred to was made clear in the abbreviation used for earlier years, which was BC, meaning Before Christ. Now I am not a huge fan of this system because it means that with the older dates you have to count backwards. I often have to remind myself that 2000 BC comes before 1000 BC, and not the other way round, as you might think. But this system has been around for a long time and most of us are used to it.

Mr Morris, though was using something different. Instead of AD he had CE, and instead of BC he had BCE. The numbers were the same. You still had to count backwards in BCE. I had to look this up. CE stands for the Common Era and BCE stands for Before the Common Era. The “Common Era” is a translation of a Latin phrase Aera Vulgaris, which probably did not originally mean common in the modern sense. Alternatively you can ignore the history and say that the use of the Common Era removes a potential source of embarassment to non-Christians. The system is “common” because it is used all round the world by people of many religions or of none. For this reason some publishers recommend it. Humph. The counter-argument is that the AD/BC system was after all invented hy Christians and refusing to use the traditioonal labels is a concession to atheism or political correctness or both.

There are as usual some odd things about all this. The first is that the monk who initiated the system is generally thought to have made a mistake in estimating the year of Christ’s birth. So this event (for those who believe it happened at all – there is an interesting theory that the oldest Gospel was writtan as a fictional allegory and no real person is behind it at all) is usually given as happening between 2 and 4 AD. Or 2 and 4 CE if you prefer. So the year of Our Lord is not exactly the year of Our Lord at all. The system is a convenience. The second oddity is that people who boycott the AD/BC version because of  its religious significance are quite happy to continue with the usual days of the week, which are actually all named after gods of one persuasion or another except Sunday and Monday. The months are also polluted by religion – as well as two rather objectionable Roman emperors.

The Society of Friends (Quakers) seems to be the only religion which has noticed this point, and for many years refused to use the conventional names for days and months, instead managing simply with numbers – as Cantonese still does. Apparently most Quakers now regard the insistence on numbers as a bit unnecessary but they still often refer to Sunday as First Day.  For the rest of us, I don’t know. Apparently the reference to Christ is a problem for some people. The use of the Common Era arrangement was started in the 19th century by Jewish historians who presumably thought (the Lord thy God is a jealous God) that something terrible would happen to them if they mentioned Jesus, even in a date. On the other hand common sense suggests that a label is just a label, and as long as we all use the same one it doesn’t matter too much where it came from. Many physical units are named after scientific celebrities. If we discovered that the Mr Ohm after whom the ohm is named had stolen his results from someone else, and moreover was a nasty piece of work who abused his dog, deceived his wife and robbed his servants, would it matter?

I suppose it is all part of the march of euphemism, which requires us to refer to the blind, the halt and the maimed as “differently abled”, prostitutes as sex workers, and robber barons as the Real Estate Developers’  Association. I must declare an interest here. Having wasted so much of my youth mastering the intricacies of Latin I am often irritated to see this accomplishment becoming even more useless than it was in the 60s. Sic transit gloria, as we used to say.

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Ahoy there, South China Morning Post! Time for a few brief words about some basic pieces of nautical terminology. On Page 2 today, in that silly column called “talking points” (our editors will be looiking ahead at these developing stories…) we are told that “All eyes will be on the northern port of Dalian, with wide speculation that China’s first aircraft carrier will be launched to mark the anniversary of the founding of the People’s Liberation Army.”  Well some of those eyes are going to be sorely disappointed. On the opposite page fans are rushing to Dalian to see the aircraft carrier, the Varyag, which is already “at anchor” about a kilometre from the shore. To launch a boat means to put it in the water. If the Varyag is at anchor it is already in the water.

Is there another aircraft carrier on the slipway, or is the SCMP just bad at boat stories? Well there was another clue on the same page as the story, a picture of the aircraft carrier concerned. This was captioned “The Varyag lies anchored yesterday at the shipyard in Dalian ….” But the Varyag was not anchored in the picture. Both anchors could be clearly seen stowed in the usual place, one each side of the bow. And indeed you would not, after all, drop anchor in a shipyard, supposing you were in one. You would simply tie up. By a delicious coincidence, the story and picture on page 3 are right under a story headlined “Press council to look into newspaper errors”.

I am trying not to be too hard on the Post, but clearly some people have stopped relying on it for information. One of them is apparently its own columnist, Michael Chugani, who thinks that democratic countries should abandon democracy so that they can become prosperous and efficient … like China. ROFL.

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