tim's experiment

What has got into our beloved Lord Patten? He seems to be annoying almost everyone. The pro-Beijing people are angry because he said nice things about democracy. The independence enthusiasts are angry because he did not say nice things about independence. The democracy seekers are not too happy either. Lord Patten’s remark that self-determination is equivalent to independence not only echoes the Beijing camp’s line, an unfortunate coincidence, but also has unhelpful implications for those who merely want an autonomous democratic region. Saying that self-determination and independence are undistinguishable only makes sense if you believe that given the choice, most people will want independence. But in that case, from the point of view of our imperial masters, democracy is just as bad. Why allow a bunch of malcontents, who really want independence, to rule themselves in minor matters? Some writers have been quite unkind about Lord Patten. Only the purveyors of egg tarts have no complaints.
You have to wonder why he bothers. Other former governors and chief executives keep a low profile. Lord Wilson appears occasionally in his capacity of Chancellor of Aberdeen University at social events for graduates of that august institution. As a result he is the only ex-Governor I have every danced with. Mr Tung Chee-hwa has floated a think tank. But other people do the talking for it. Donald Tsang is … busy.
So there is a Patten problem. Before we explore this let me declare a non-interest. Chris Patten and I attended the same university at the same time and studied the same subject. As far as I know we never met. It was a large university. While he was the Governor of Hong Kong we never met either. We were on a couple of occasions in the same room, for the presentation of the Hong Kong News Awards. It was a very large room. Mr Patten, as he then was, had the refreshing habit of fraternizing with real reporters, rather than following the example of predecessors whose encounters with the media consisted of formal dinners with proprietors and chief editors. But I was not one of the fraternizees, which was OK by me. It is possible, if you are a pure reporter, to have sources who are friends and friends who are sources. If you are writing comments, though, this does not work. Sooner or later you arrive at “how could you write that about me?” We belong in the press box, not the boardroom. Having been quite critical of his predecessors I felt a certain obligation to be quite critical of Mr Patten. But in the big things he did pretty much what I thought was as much as you could hope for under the circumstances.
Those circumstances were that, however much Lord Patten’s affection for Hong Kong or dedication to the interests of its people, his appointment was as the local representative of the British government. And this imposed some limits. In particular the condition of British politics imposed one over-riding constraint on the disposal of Hong Kong. Nobody could say exactly what success would look like. But they knew what failure would look like: several million Hong Kongers turning up at Heathrow carrying passports giving them the right of abode in Britain. This was not because there was any great hostility to Hong Kongers, or to Chinese people, who were unthreateningly dispersed by their penchant for the restaurant business. But “Asian immigration” had been given a bad name by an influx of Pakistani peasants whose integration presented, and indeed still presents, difficulties. A large increase would sink any government which presided over it. So Britain’s fundamental Hong Kong policy was that, whatever happened, Hong Kong people should stay where they were. Even the modest scheme for giving selected Hong Kongers full UK passports was explicitly and repeatedly justified as being intended to encourage the holders of such passports to stay in Hong Kong, not to move to Britain. Indeed even those idealists who advocated a generous distribution of passports argued that few of the resulting new Brits would be likely to move to the soggy island from which their travel documents came.
This presented a new problem for British colonial policy. All previous colonies had been handed over to their own inhabitants. Last governors took a pride in their adroit reconciliation of local forces to British ideas of democracy and the rule of law. One of the professional last Governors actually called his biography “A start in freedom.” As the years went by it did not go unnoticed that the freshly installed democratic institutions did not always last very long. A certain cynicism crept in, some of which surfaced in parliamentary debates about the future of Hong Kong. Still, there was no precedent for handing five million people over to a Communist dictator. The answer to this problem was the Joint Declaration, which made rather generous promises about the degree of autonomy and democracy to be enjoyed in post-handover Hong Kong. The two governments involved discovered a shared interest. Britain did not want the population to leave because many of them would have wound up in London. Beijing did not want the population to leave because an empty Hong Kong would have been less valuable than a populated one. So there was a joint effort, not entirely successful, to convince hapless Hong Kongers that the future would be even better than the past, and that the murderous regime from which many of them had fled at great personal cost was now a reformed character. No doubt the negotiators involved on both sides managed to convince themselves, as well as each other, that this was in our best interests.
This was the diplomatic framework within which the last Governor had to work. As an honest man, and a democrat, Patten did his best to make it as difficult as possible for the Chinese government to go back on its word. It was not in his power to make it impossible. In order to like and respect the person he saw in the mirror every morning Patten had to believe that there was a chance, if everyone concerned played their cards right, that Hong Kong people would succeed in plucking the flower democracy from the dungheap of Stalinist despotism. unlikely though that might be. Lord Patten’s continued interest is quite understandable if you see it in this light. If things go one way, he will be seen as a modern Moses who led his children to within sight of the land of milk, honey and autonomy. If things go another way he will be seen as a contemporary version of the death camp guard who announces to the inmates, as they strip for the last time, “leave your clothes here and we will go to the next room for a nice warm shower.”
His Lordship has a stake in our struggle, and this no doubt explains his eagerness to offer unsolicited advice. Goethe wrote that “The noble soul can accomplish all/If it is wise and swift.” Lord Patten no doubt wishes to augment the supplies of wisdom and swiftness. The trouble is he has been away for nearly 20 years. Since he left we have seen the passage of many moons, and a few booksellers. The idea that there is a “democracy debate” with a regime whose local minions want people with inconvenient opinions to be “hunted down like rats” is stretching things a bit. The other day a former radio host was convicted on seven counts of trying to rig the 2015 District Council elections by bribing people to run as bogus localists. He was offering sums totalling $800,000 for this service. Where did that cash come from? Look at it another way. In my constituency we had one candidate disqualified before the poll (petition pending) one disqualified after the oath taking (possible appeal pending) and one now the subject of a government application for disqualification (hearing next week?). All these efforts were made to fix the elections to a hopelessly rigged legislature. Every day we see something more like democracy with mainland characteristics. Hong Kong is pioneering a new sort of democracy: democracy designed by people who wish it to be as undemocratic as possible.
Lord Patten now expresses confidence that Hong Kong will see democracy in 2047. This sort of prediction is dangerous. No doubt he believes this to be true, just as Neville Chamberlain believed in 1938 that he had secured “peace in our time”, President Coolidge believed in 1928 that the prospects for the US economy “have never been better”, and William Pitt believed in 1792 that ”from the situation of Europe we might … expect 15 years of peace.” Political prophesy is not an exact science, especially when an earnest desire for one particular outcome clouds the view. We over-estimate the predictability of history. It does not flow, it lurches, as Taleb puts it.
Lord Patten’s good wishes are sincere and his advice well-intentioned. But Goethe also wrote that “None are more hopelessly enslaved than those who falsely believe they are free.”

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There was an interesting scene in the Court of Appeal last week. Interesting scenes are not something one associates with the Court of Appeal, where the proceedings routinely feature a lawyer or two addressing three somnolent judges, who rarely say anything in response. I have visited occasionally to provide company for a lonely appellant. Usually it is a yawn.
Chatting with the lawyers during the breaks for a cough and a drag, or whatever judges get up to at half-time, one gets the impression that the judges, who have already read the documents in the case, do not take much interest in the oral part of the proceedings. Not this time, it seems.
The case was the appeal by two lawmakers, or non-lawmakers depending on your point of view, against their summary disqualification for frisky variations on the Legco oath.
Swimming manfully upstream on behalf of Sixtus Leung, one of the two, was Senior Counsel Hectar Pun. Mr Pun was arguing that the interpretation provided in mid-case by the Standing Committee of the NPC was not relevant. At this point the Chief Judge of the Court of Appeal (I assume this gentleman corresponds to the Master of the Rolls in the English system) Andrew Cheung intervened. I quote the Standard: “Cheung questioned on what grounds he could say the interpretation was an amendment, since the mainland used civil law system, while Pun and the justices were working under common law. Cheung said Pun was ‘patronising and presumptious’ by characterizing the interpretation as an amendment without understanding civil law.“
Cheung went on to ask Pun further questions about the interpretation, and then moved on to senior counsel Philip Dykes with the same question. Mr Dykes, representing Yau Wai-ching, refused to answer on the grounds that in his view also the interpretation was irrelevant.
Never mind the technicalities, feel the rhetoric. Patronising and presumptious? By the sleepy standards of courtroom chat this is fighting talk. Judges generally do not provide this sort of commentary on the matters put before them, for good reasons. An intervention on such a scale suggests to the layman, who is not aware of the extraordinary control that judges exercise over their own mental processes, that the judge is approaching the matter before him with something less than a completely open mind.
What I find particularly objectionable about this little debate is the gross unfairness displayed to civil law systems, a perfectly respectable category in which China’s should not be included.
A little history is needed here. Legal systems generally come in two categories. Common Law systems are descended from the English system and are found in former British colonies, and the former colonies of former British colonies. While the English system was developing in England, continental legal systems were much more influenced by the church, which interpreted for contemporary purposes the civil law. “Civil” in this case does not mean being polite, it means ‘of the city’, the city in this case being ancient Rome.
Actually we do not know an enormous amount about law in ancient Rome, the origins of civil law lying in practice in the Code of Justinian, and subsequent updates by his successors. Justinian, who flourished in the 6th century, styled himself the Roman Emperor but did not rule in Rome, which had already been over-run by barbarians. He ruled in Constantinople, now Istanbul. He married a lady of ill repute, one Theodora, much younger than he was, whose sexual habits were so exciting that in Gibbon’s “Decline and Fall of the Roman Empire” he left the details, which involved male slaves and geese, in the original Latin language. This seems an unlikely background for a lawmaker but no doubt the real work was deputed to a committee and the Emperor just put his name on it, rather as King James I did with the Bible.
Anyway this provides the background for most of the legal systems in Europe, and for those countries which used to be colonies of countries in Europe. Which doesn’t leave many for the “uncategorized because uncolonised” category, but it does leave some, notably Japan and China.
I realize that there is a temptation for loose thinkers to use Civil Law as a sort of catch-all concept, for everything which is not Common Law. Most Civil Law countries have a code, and do not feature the Common Law precedent system, in which the law grows by accretion, like a coral reef, as judges’ decisions are added.
If on the other hand we stick to the original meaning, of systems based on the Roman tradition, then China clearly does not qualify. The legal system, such as it is, is entirely local in origin. The Emperor Justinian has had nothing to do with it. In 1949, moreover, the slate was wiped clean. So clean that there has been much discussion since as to when, or even whether, China started having a legal system again.
There is an old legal joke which goes “In England you are presumed innocent until proven guilty. In France you are presumed guilty until proven innocent. In China you are presumed guilty until you confess. And then you’re really guilty.” The point which this encapsulates is that China’s legal system is in a class of its own. Indeed it may be more helpful to consider it as not a legal system at all, although that may be too confrontational a stance for Hong Kong judges hobnobbing with their mainland counterparts.
After all the legal system in China does not do any of the things you expect a legal system to do. It does not provide a fair and rational way of resolving disputes, it does not protect the weak or restrain the powerful, it does not provide a means of redress against government abuses. It is entirely at the service of the Communist Party.
We have had a taste of law with mainland characteristics with the oaths row. First we were told by the head of the Liaison Office what the outcome was going to be. Then the law was used, with a quick change along the way in case it was not up to the task, to produce the desired effect. This is how it goes north of the boundary: first the political decision, then the “legal” process to put it into effect. Calling this a civil law system is a bit … well, uncivil. The Emperor Justinian must be revolving in his grave like a propeller shaft.

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The law’s delay is one of the “whips and scorns of time” identified by Hamlet (no relation) in the immortal soliloquy which starts “to be or not to be”. Lawyers frequently quote the maxim “justice delayed is justice denied”, which oddly enough does not come from a judge; it comes from the 19th century prime minister William Gladstone. Lawyers cringe at the memory of the Lord Chancellor who started a summing up with the phrase “Having been worried about this will for ten years…”
So we all agree. Doing it slowly is a Bad Thing. Less obviously doing it in a tearing hurry is a Bad Thing as well. It is a recipe for mistakes. This brings me to Thomas Au J’s decision in the oath-taking case, which illustrates the point rather well. We are enjoined on the highest authority (the late Lord Denning) to be kind in comments on judges, because they cannot reply. More, the judge can only adjudicate on the matters put before him. If the parties to the hearing have only very little notice, as they did in this case, then there is limited time for research or thought. Arguments which could have been put may not be. Still, Mr Au’s decision offers compelling evidence for the view that university law departments these days are not offering enough courses on legal history.
It seems that one of the points put to Mr Au, as I thought it would be, was that the courts have traditionally not had jurisdiction over the internal workings of the legislature. This was ascribed, wrongly in my opinion, to parliamentary sovereignty. Mr Au countered it with the equally erroneous assertion that Legco was not sovereign in our constitution, but the Basic Law was. Therefore it was appropriate for the courts to intervene if Legco violated said law.
This is nonsense on several levels. Let us clear up first of all who is now sovereign. Sovereignty cannot reside in a law. It resides in a person or institution. Sovereignty consists of the right to make laws and decisions. It may be shared or limited. Clearly in Hong Kong at the moment sovereignty resides in the Standing Committee of the National People’s Congress, which approves senior appointments, controls the armed forces, and can — through “interpretations” — change the law. One country, two systems is a promise that this sovereignty will be limited to certain matters, and exclude others which in the Basic Law are stated to be for Hong Kong institutions to decide “on their own”. But like other sovereign institutions the Standing Committee has one limitation on its power: it cannot bind its successors. So if a promise made in 1996 is broken in 2016 there is nothing we can do about it. This is not a comfortable position. But if judges are going to describe it they should describe it accurately.
Now we come to the question of parliamentary sovereignty. Nowadays this means the sovereignty of an elected legislature. But the idea that the courts should not intervene in the internal matters of the legislature goes back to long before anyone thought of an elected legislature in those terms. It makes its first formal appearance in the Bill of Rights of 1689 as “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court.” By the time Blackstone wrote his Commentaries on the Laws of England in the 1760s this was a commonplace: “whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates, and not elsewhere.” This was not an expression of parliamentary sovereignty because when people talked of parliament and sovereignty they did not just mean the House of Commons, or indeed the House of Commons and the House of Lords. The sovereign was the King. As late as 1885 the great constitutional historian Dicey wrote that “Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) The King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the ‘King in Parliament’, and constitute Parliament.”
The purpose of excluding the jurisdiction of the courts from the House of Commons was not to express sovereignty, but to limit it. The system in the 18th century was that the King was sovereign, subject to limits and the rights of the Houses to represent the lords and commons. To preserve this system it was necessary to exclude the jurisdiction of the courts, because they were the King’s courts. The arrangement was not intended to buttress sovereignty, but to protect the rights of MPs to propose and debate in despite of the sovereign’s disapproval. In other words it was intended to prevent precisely the sort of purge which Au J’s judgement on the oaths case has facilitated and encouraged.
A third point of contention is Au’s conclusion that since the legislature is subordinate to the Basic Law it is appropriate and proper for the courts to adjudicate where the Basic Law is alleged to be infringed. This does not follow legally at all. The law has always been binding on both the Houses of Parliament. That does not mean the courts had jurisdiction if it was apparently broken. The leading case on this is Bradlaugh v Gossett which (by an interesting coincidence) also concerns the taking of an oath. The then Chief Justice, Lord Coleridge, summed up the law as follows: “If injustice has been done, it is an injustice for which the courts of law offer no remedy… The history of England, and the resolutions of the House of Commons itself, show that now and then injustice has been done by the House to individual members of it. But remedy, if remedy it be, lies not in actions in the courts of law … but by an appeal to the constituencies whom the House of Commons represents.” One of the Chief Justice’s colleagues, one James Fitzjames Stephen (I am not making this up) put it another way: “In my opinion the House stands … in precisely the same relation as we the judges of this court stand in to the laws which regulate the rights of which we are the guardians, and to the judgements which apply them to particular cases; that is to say they are bound by the most solemn obligations which can bind men to any course of conduct whatsoever, to guide their conduct by the law as they understand it. If they misunderstand it, or willfully disregard it, they resemble mistaken or unjust judges; but in either case there is in my judgement no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can ever be produced in which any court has ever interfered with the internal affairs of either house of parliament…”
In local terms this means that the Basic Law is binding on Legco, but that does not mean judges have the right to decide whether it has been breached or not. The Legco chairman is obliged to follow Article 104 as interpreted. But the courts have no right to nudge his elbow. This should not be a difficult concept in the Hong Kong context, because the Chinese constitution works the same way: everyone is supposed to obey it, but if they don’t, the courts have no power to enforce it.
All this may seem rather ethereal. And no doubt some Hong Kong people would be quite happy to see freedom of speech in the council chamber curtailed. Judges, though, may also care to consider the practicalities. Mr Justice Au’s decision has opened a Pandora’s box from which a small herd of legal gremlins is already emerging. Some people would like judges to adjudicate on the sincerity of oaths by other pan-democrats. Since the latest “interpretation” stipulates accuracy as well as sincerity, the way is also open for people of a pan-democratic persuasion to query the oaths of government loyalists, like the lady who swore in Putonghua and apparently mixed up her tones (a mishap with which all foreign learners of Cantonese will sympathise) and swore allegiance to a vegetable. Even Mr C. Y. Leung is now queriable, because in his coronation oath he missed out “Hong Kong”, a rather important inaccuracy because Mr Leung’s loyalty to the territory is often doubted. Further excitement lies ahead over the question whether the Legco chairman’s last-minute renunciation of his British citizenship was enough to qualify him for the job. As this gets underway we can look forward to queries whether oaths were validly taken if they were presided over by an ineligible chairman, and whether resolutions were validly passed if they were voted through by lawmakers subsequently disqualified for oath errors, or indeed if they were passed in the absence of lawmakers whose disqualifications were subsequently overturned. This could run and run. If it transpires, though, that localists or independence advocates are disqualified en masse, and everyone else is waved through, then I fear the man on the Shaukeiwan tram is going to conclude that our judges have become Party poodles.

Footnote for visiting legal eagles: Bradlaugh v Gossett can be found at 1884, xii, QBD, 271. Also relevant Stockdale v Hansard [A & E, ix, 107] and Burdett v Abbott [14 East 131]. Alternatively, excerpts from all three judgements in Costin and Watson, The Law and Working of the Constitution: Documents 1660-1914, Volume II.

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I do not usually write about American politics. This is partly because I think it is really nothing to do with me, and partly because I am a bit wary of opinions, even my opinions, based only on media reports. Still, there are some debts which have to be paid. So I would like to express my gratitude to the American electorate for choosing Mr Donald Trump as their next president.
I suppose that this interesting choice had other purposes, but it has saved me a great deal of embarrassment. For weeks I have been fielding questions, often from Americans, along the lines of “How could Brits have been stupid enough to vote for Brexit?” Well I imagine this question will now fall out of style. Because voting for Brexit may have been stupid, but voting for Mr Trump was crazy. I have occasionally seen Mr Trump’s television show, “The Apprentice”. As a game show judge Mr Trump makes Simon Cowell look like St Francis of Assisi. As well as being obnoxious to the vulnerable, he has other qualities, it seems. He is stupid, bigoted, dishonest, lecherous, has no relevant experience and is almost as old as I am.
I feel for the writers of future guides to etiquette, who will have to confront questions like how, as a well-brought-up young lady, do you politely tell the President of the United States to take his hand off your pussy?
Well we mustn’t wallow. Indeed I fear I may already have given grave offence. I would like to thank the reader who sent me a quotation from one of the Americans I most admire, H.L. Mencken, which goes like this: “As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart’s desire at last and the White House will be adorned by a downright moron.”
Perhaps we are not quite there yet. Anyway, Americans are entitled to the president of their choice. But please do not refer to your latest selection as the “leader of the Free World”. Some parts of the Free World still have standards.

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Well the Department of Justice has plumbed a new low. Not content with failure to enforce the rules on contempt of court, the department is now ignoring them itself.

Some years ago the then editor of the South China Morning Post heard that an interesting document had been tabled as part of a court case. Wishing to be sure that this would be reportable he wrote to the presiding judge urging that the document concerned should be read out in court. This would make it part of the proceedings, and reports would then be immune from libel actions.

He received a very irate reply from the judge, pointing out that it was contempt of court for anyone to communicate with the judge in a case with a view to influencing his conduct of it. Judges are supposed to consider entirely and only the material offered by the parties to the case in court. The judge did not seek a prosecution of the editor only because neither his motives nor the effect of his action had any serious implications for the matter in dispute.

OK, so have we all got that? If you are a spectator or a litigant, the judge is only supposed to hear from you in submitted documents and oral arguments in court. This has the advantage that justice is seen to be done, and that the opposition has a fair chance of countering your efforts.

Now to Thursday night and Friday morning. On Thursday night the government received official word from Beijing that the Standing Committee of the National People’s Congress would consider the possibility of handing down an interpretation of Basic Law Article 140, the one which concerns oath-taking. Note that the word said they would consider the matter. It did not say what the decision would be, or what, if an interpretation was decided on, the interpretation would say.

On Friday morning we were officially told, in a government press release duly broadcast on RTHK and all channels, that the Department of Justice had “informed the court” about this message.

Well never mind about “informed the court”. The court, after all, is just a room. What they meant was that they had written, emailed, telephoned, messaged by pigeon or in some other way communicated with the judge hearing the government’s application for judicial review of the Legco chairman’s recent decisions on oath-taking.

This does not admit of an innocent explanation. The Department of Justice and the government via Mr C.Y.Leung are litigants in the case. They are not allowed private intercourse with the judge hearing it. This is unfair to the other participants and a violation of the principle that the matter should be dealt with in public.

What is the effect of telling the judge that the NPC Standing Committee may change the law while he is working on the case? Clearly this is an attempt to intimidate, to add to the pressure of a high-profile case, to suggest to the judge that a decision unpalatable to the government will, or at least may be, instantly overthrown by a Higher Power.

At best this is an attempt to distract the judge from his proper business, which is to decide the matter before him on the basis of the law as it is now. The Standing Committee of the NPC is, for the time being, an unknown quantity. The interpretation may not materialize at all. It may not be relevant to the case at hand. It is also possible that the judge will decide, as he was urged to by some of the parties to the case, that he has no jurisdiction over Legislative Council procedure, so the application before him must fail whatever its merits as a criticism of the rules applied by the Legco chairman.

The fact is that we don’t know, and the government doesn’t know, what the NPC will decide or how it will affect the bid for judicial review. What we do know is that the government is cheating. Wake up, gentlemen. The Rule of Law is supposed to apply to you too.

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Last week’s effort disappeared, as usual, into cyberspace with no sign that anyone who mattered had actually read it. However there is nothing to stop other people who have considered the same question coming to the same conclusion. So I was interested to see (and you had to look quite closely to see it, because the few newspapers that covered it did not make much of the story) the outcome of an application for judicial review of another matter, which came up last week.

The case was brought by a villager in Kwun Tong who wished to challenge a decision by the Legco Finance Committee to approve funding for development in the North East New Territories. I take it that the Kwun Tong concerned in this matter is not the same as the one with the MTR station of that name, which is a long way from the New Territories.

It seems that the chairman of the Finance Committee was asked to exclude a member of the committee because he had a vested interest in the matter. The chairman refused, and proceeded to put the matter to a vote, in which it was carried. The applicant for judicial review wanted this decision to be reconsidered.

The judge’s response (and in case anyone thinks I am shading this in a desired direction I quote from the China Daily here) was as follows: “Judge Au Hing-cheung said that whether or not the chairman dealt with the motion is within the scope of internal operations of LegCo and that the court should not intervene.”

Well quite. The lawyer for Legco also noted that “if the court accepts the judicial review of [the case] there will be many subsequent judicial review applications on details of Legco’s operation for the court to handle”.

Judge Au reserved his decision on whether to allow the judicial review to proceed or not. In the meantime it seems that at least in his court the situation is rather as I thought it was – the courts will not consider the internal workings of Legco, for the highly practical reason that if they did there would be an avalanche of attempts to overthrow particular decisions, and this would be bad news.

Quite how this expresses itself in legal detail remains an interesting question. According to the SCMP’s account of the attempt to protect Kwun Tong, the lawyer for Legco said that the courts should only intervene if Legco could be shown to have infringed the Basic Law.

The interesting thing about this is that the Legco lawyers presumably told the council’s new chairman the same thing. This would suggest that he should ignore the CE’s attempt to overrule his decision that members who fail in their first effort to take the oath should be given a second chance. The application for judicial review is based on the Oaths and Declarations Ordinance, which is not part of the Basic Law.

But looking at the Basic Law is a dangerous pursuit. We are all supposed to admire and obey the Basic Law. But reading it suggests, in many places, that it was compiled by a bunch of eager amateurs who had no idea what they were doing. This is not too surprising, of course. What mainland “legal expert” in the late 80s would have had any experience of reading, let along drafting, a democratic constitution?

Consider, for example, the matter of parliamentary privilege – that is to say the immunity of the legislature as a whole and its members individually from legal hazards. Article 77 says that “Members of the Legislative Council of the Hong Kong Special Administrative Region shall be immune from legal action in respect of their statements at meetings of the Council.” This is a clumsy and perhaps unnecessary way of saying that you cannot sue a member for libel as long as he or she demolishes your reputation as part of the proceedings.

Then we get to Article 78, which goes: “Members of the Legislative Council of the Hong Kong Special Administrative Region shall not be subjected to arrest when attending or on their way to a meeting of the Council.” This is enthrallingly ambiguous. Does it apply only to formal arrest by police, with application of handcuffs, warning by judges’ rules and a short trip to the nearest police station? This does not seem very helpful to members.

Does it mean that members once duly elected may not be prevented from attending – even if, presumably, they have not been sworn in yet – which would make efforts to exclude elected but unsworn young inspirers unlawful? Does it (actually this would make more sense but it is not what the article says) mean that they cannot be arrested for any action done in the chamber? The attraction of this interpretation is that it would be consistent with the situation in other Common Law jurisdictions. The disadvantage, from the government’s point of view, is that it would make the prosecution of “Mad Dog” unlawful.

Counsel for Lego seems to have had in mind the second half (the first half concerns the quorum) of Article 75  which says that “The rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law.”  This may have been intended to limit the power of the courts to consider Legco decisions. If so it was not very well written. It appears to protect from judicial oversight only the rules, not the way in which they are applied in particular cases.

On the other hand protectors of legislative autonomy can still rely on Article 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.” The later section on the Legislative Council does not preserve the legislature from interference, but it does not authorise interference either.

Where does all this get us? Well it would be nice if Legco and its chairman were pushing a consistent line. If they wish to be immune to pressure from New Territories villagers then they should wish to be immune to pressure from the Chief Executive as well. Principles are principles and the law is the law. Different parts of the constitutional machinery have different functions. It is not rebellious or subversive to defend your patch.

I do not believe it is feasible, given the documents many deficiencies, to insist that people swearing to obey the Basic Law should believe this document to be incapable of improvement. After all it is a constitution written by people who did not really believe in constitutions. For a while we were treated to the services of four elderly former drafters in Beijing, who would occasionally announce what the drafters really intended when ambiguities surfaced. They are now all dead so we are on our own. China’s history and culture have many admirable features. Unfortunately a record of successful constitution-writing is not among them.

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Spokesmen and apologists for the Hong Kong government have gone to great lengths to establish that Hong Kong does not have, and never had, separation of powers. This is a red herring. The idea that the English constitution in the 18th century separated the powers of the executive, legislature and judiciary was promulgated by a French political theorist, the Baron de Montesquieu. As far as England is concerned, this was not true then, and it is not true now. The idea was nevertheless influential. It is to some extent, though not completely, a feature of the American constitution. One must in fairness to the Baron note that at the time he was comparing the English arrangements with those found in the rest of Europe, which with a few exceptions involved absolute monarchy.

The reason why this has come up is the application for judicial review of the chairman of Legco’s decision to ask people whose first attempt to take the oath was not to his satisfaction to have another go. The application should have been summarily rejected. Hong Kong courts do not have, and have never had, the power to consider and adjudicate on the proceedings of the legislature, not because of the separation of powers, but because of parliamentary privilege.

Before we get into English legal history, let us start with the Basic Law of the Hong Kong SAR, a favourite spot for opponents of Youngspiration. Article 87 of this masterpiece states that “In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.” I take this to mean that, unless otherwise stated elsewhere in the Basic Law, we are all where we were before 1997. This applies to Legco as well as to the rest of us. And Legco, under English law, enjoyed the absolute right to regulate its own proceedings, free from judicial oversight.

This can be traced, if you enjoy such things, back to the historic occasion in 1642 when King Charles I turned up in the House of Commons and asked the Speaker (the chairman of the House) to point out five members he wished to arrest. The then Speaker, one William Lenthall, replied that, “I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.” More helpfully we can refer to the Bill of Rights – the first one, passed in 1689 – which stated that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” Note the use of the word proceedings.

This is an important principle, because it means that however objectionable you find a law, you cannot appeal to the courts to over-rule it because of some procedural deficiency in its passage through the legislature. Because of the practical importance of this principle it has been preserved to this day. The UK Government’s White Paper on Parliamentary Privilege, published in 2012, says that, “Parliamentary privilege is an essential part of our parliamentary democracy. It ensures that Members of Parliament are able to speak freely in debates, and protects Parliament’s internal affairs from interference from the courts.”

This phrase occurrs quite often in the White Paper. Further on it notes the “exclusive cognisance of each House of Parliament (sometimes referred to as “exclusive jurisdiction”) – which broadly translates as the right of each House to regulate its own proceedings without interference from the courts.” And later “As with freedom of speech, the Government believes that it continues to be an important manifestation of parliamentary sovereignty that the two Houses are free to determine and enforce their own procedures without reference to the courts; and that this necessarily includes the regulation of conduct in those proceedings.”

For the historical roots of this aversion to judicial oversight we can turn to the judgement of the Court of Queens Bench in Bradlaugh v. Gossett, which was decided way back in 1884. The then Chief Justice said, “What is said and done within the walls of Parliament cannot be inquired into in a court of law… The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.” Stephen J, concurring, quoted other judges in a previous case: Lord Denman had said “Whatever is done within the walls of either assembly must pass without question in any other place”, and sundry other judges had made the same point in rather more words. They were in turn following Blackstone, an 18th century authority, who wrote: “The whole of the law and custom of Parliament has its original from this one maxim, ‘that whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates, and not elsewhere.’”

I conclude that the English courts have never had, and never sought, jurisdiction over what happened in the legislature. It must follow that Hong Kong courts never had such jurisdiction either. The application for judicial review meets a fundamental obstacle. What happens “within the walls” of Legco has always been beyond the jurisdiction of the courts. We must of course bear in mind that in the last analysis the law is whatever the latest judge to consider the matter decides. So it is not impossible that 500 years of legal history will be quietly disregarded and some judge or judges will decide that he or they can consider and adjudicate upon rulings of the Legco chairman. But if I were a judge, I would be quite happy to discover that I was not required, indeed was actually prohibited by precedent, from dabbling in what is fundamentally a political dispute, not a legal one. We’ll see.

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So much going on lately that I expect you missed, as I did, a meeting organised by the Commission on Poverty to analyze the situation of the local poor. I still don’t know what they got up to, but one of the media responses was quite stunning.

Here we have Raymond So, Dean of the School of Continuing Education at Hong Kong Baptist University, writing in the China Daily’s English version: “In Hong Kong, the poverty line is defined as half of the median household income. This definition was published by the commission in 2013, using the concept of ‘relative poverty’. Under this definition of poverty, no matter how hard the government is working on fighting poverty, there is always a class of people who will live in poverty because, by definition, there will always be people earning half the median household income.”

Readers who suspect at this point that Mr So is going to take a soothing, not to say complacent, view of the matter, will not be disappointed. From an academic point of view, he says in the next paragraph, poverty is “an inevitable thing”. I am not sure that being in charge of BU’s money-making machine qualifies Mr So to announce the “academic point of view” on anything. I must say though that, unaccustomed as I am to defending the Hong Kong Government or its off-shoots, his attack on the official definition of poverty is, with respect, nonsense.

Let us briefly consider what the median is. The usual way of summing up a lot of figures is the average, which academics, for some reason, prefer to call the mean. Add up the total income, say, and divide by the number of people in the group. This is useful for a lot of purposes but is occasionally misleading. Let us say we have ten people in a bar and their average monthly income is $10,000. Then Mr Li Ka-shing walks in. The average income in the bar has now shot up to several billion, but this figure is clearly meaningless from the point of view of most of the patrons, or from that of a Commission on Poverty looking for an idea of what income a person needs to get by. The median is obtained by ranking everyone in the bar in order of income, and then looking for the person who is in the middle of the list. In our bar we now have 11 people, so the median income will be that of number six, who has five people below him and five people above. It will probably be about $10,000, so this tells us a good deal more about the population in general than the mean or average does.

To return to Mr So’s opening paragraph, clearly “by definition” half the population will be earning less than the median, because that is what the median is. But there is nothing in that definition to justify his suggestion that there must always be people earning half the median. Let us return to our imaginary bar and suppose that the poorest of the drinkers – who is not Mr Li – earns only $4,000 a month. Clearly he is earning less than half the median. But there is nothing compulsory about this. If a benevolent government takes $2,000 a month from Mr Li and gives it to the needy patron he will now have a total income of $6,000 a month, which is more than half the median income, while the median income remains the same.

In short there is nothing statistically Sisyphian about the government’s target. The difficulties are certainly enormous but they are practical, not statistical. We have it on good authority that, in the King James version, “ye have the poor always with you”. But this quotation is commonly abused as an excuse for complacency or despair. Mr Christ’s audience would have picked up immediately that this was a reference to a passage in the Old Testament, which goes “Since there will never cease to be some in need on the earth, I therefore command you, open your hand to the poor and needy neighbour in your land.” We may have to accept that the complete elimination of poverty, however defined, is probably unattainable. There will always be some people who slip through the cracks and find themselves unable to achieve what most of us would regard as an acceptable standard of life. But that is no reason for not trying.

There is nothing wrong with recognising that poverty is a relative thing. This is a commonplace observation of behavioural economics, and for that matter of sociological journalism. If all your neighbours have a television, then not being able to afford one feels like poverty. I do not believe that having a relative target is a serious obstacle in itself to the Commission on Poverty achieving successful poverty reduction. A more serious problem is that in order to give poor people money you first have to take it from rich people, something our leaders find painfully difficult. Planting spurious statistical obstacles in the path to action is not helpful.

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One of my favourite movies is “A man for all seasons”. Although this was made in the 60s it has lasted well – all the costumes are 16th century. It can be viewed – with commercial interruptions alas – here: https://www.youtube.com/watch?v=lmzoD5MZstU

The interesting thing about this film is that it is not about love, power, revenge or any of the other usual themes. It is about the downfall of Thomas More. Sir Thomas, as he then was, was Chancellor when Henry VIII decided to divorce his first wife. As the Pope refused to go along with this Henry appointed himself Supreme Head of the Church of England and the English Parliament duly passed a statute to this effect. This is how England stopped being a Catholic country. All office-holders were required to swear an oath indicating their support for the new arrangement. More then resigned. Unfortunately this did not suffice – he was a public intellectual of international importance and his refusal to support the new arrangement was a problem. So he was pressed to subscribe to the new oath anyway, and still refused. Eventually he was subjected to a blatantly fixed trial and executed for treason.  So the basic theme is a thoroughly unmodern one: a man who would rather die than swear an oath of support for something he does not believe in.

This is such an alien and interesting concept that I often show the last 30 minutes of the film to my students, on the rather flimsy pretext that it shows the basic structure of a trial in the common law tradition – prosecution, witness, cross-examination, defendant, verdict, sentence and such. But of course one of the reasons why this is an alien and interesting concept is that we no longer feel the same way about oaths. More says that an oath is “a promise you make to God”, and believes that if you make a false promise to God you will go to Hell. Even in America, where God is still a popular figure whose assistance is sought by oath-takers (“so help me God”) that would probably be a minority view now.

In China, God has been abolished. Marxism is atheistic. That is not necessarily a criticism. Some people would say that it was one of Marxism’s few points of contact with reality. But with no God and no Hell the significance of oaths is unavoidably much eroded, and you rather wonder why they bother. Well we know why they bother with the Legco oath: because it was already there. Suitably amended, it is the oath people used to take when working on the old colonial Legco. When they were all appointed the oath was in a way quite unnecessary – no Governor would appoint a non-supporter. And indeed there is no sign of the new one being intended to have any very serious purpose, still less to act as a barrier to people with inconvenient political views, as it is being used now.  The mainstream interpretation used to be the one offered by Philip Bowring some time ago – the oath amounts to no more than a promise to uphold the law while it is the law. It does not preclude the desire for changes.

This has been turned into a centre of political contention by the Liaison Office stooges, on whose behalf a four-point plan to put obstacles in the way of independent-minded candidates was outlined weeks ago in the China Daily. So far this has not gone too well. Disqualifying candidates merely resulted in their equally unwelcome replacements being elected. The electors were not helpful. Still to come we have a procedure by which a member can be excluded by a two-thirds vote of the other members. If the pro-government camp does not command a two-thirds majority – as it won’t if all those elected are actually seated – then this is not going to work either. So for some people the oath is the last chance to follow orders and see that nobody is allowed in Legco who speaks, thinks or even dreams about an independent Hongkong.

The result has been an intermittently entertaining squabble in which a few clear points can be determined. One is that neutrals want to keep out of this. The Legco Secretariat is supposed to be the impartial servant of all members, not a branch of the government. It seems the complaint that the Secretariat “betrayed” a democrat and then cosseted a pro-establishment replacement in the chair is now being diluted somewhat. So we can perhaps put this down to a misunderstanding or a genuine change of view after second thoughts. It is difficult to be so forgiving about reports that the secretary-general rejected some oaths on the grounds that the oath-takers “did not seem to understand” the oath. This is none of his business. The gentleman concerned needs to confine himself to his proper functions.

This brings me to the second landmark, which is that the oath is a legal requirement, not a political one. This means that what the oath taker understands or intends by it is not relevant. That is a matter for the member and his electors. The only requirement is that he or she should read the words on the card. There are no grounds for censoring the oath-takers’ clothing, however offensive the wording printed on it, or their accents. There may be room for argument about extreme slow motion, or about the interesting mispronunciations of Ms Yau Wai-ching, who seems to be trying to do for Hong Kong politics what Gordon Ramsay did for television  cookery programmes. But the requirement is that the member reads the words. What he or she says before or afterwards is also not relevant.

I understand the reluctance of some new members to engage in what looks suspiciously like a kow tow to a regime they disapprove of. But you knew you were going to have to do this if you won. So get on with it.

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Was CY Leung reduced to tears by the difficulty of finding land for public housing? He should get down to the Shatin District Land Office. To understand why, let us take a short walk. We start at the top of Sui Wo Road, where observant visitors will have spotted one of those maps with a little roof over it which indicate the entrance to a country park, and one of those striped poles which indicates the entrance to a road which the Water Supplies Department regards as its own exclusive property.

Walk down the WSD’s road (which they don’t mind as long as you are not driving) with a steep cut slope on your right and the back view of Greenwood Terrace on your left. Shortly you come to a turning round place. But the path which continues in roughly the same direction has been widened to take cars so there is still plenty of room. Follow this for maybe a quarter of a mile. This is easy walking because it keeps more or less level. Later you will hear a stream to your left. Eventually you come to an open space. There is a small turning round place for vehicles, a flight of steps down, a rain shelter, and a bridge over the stream. Over the bridge you go up a flight of steps and there is a choice. You can go ahead, up further flights of steps and after much walking you will reach the Maclehose trail. Alternatively you can turn right, onto a small path which parallels the stream.

At this point you are entering a rather charming and very quiet little valley. At one time it had a farm in it, but this was abandoned long ago. Later it enjoyed some notoriety as a place where illegal immigrants hoping to “touch base” could take a rest before trying the last dash into the urban area and safety. There were still some informal shelters from that era when I first explored the valley in the 90s. In those days there was a network of paths, but these have been much neglected. Substantial official-looking bridges have collapsed; trails have disappeared. Never mind. The path you are on, though neglected, is still usable. Carry on with the stream on your right for a couple of minutes. You may now think you are as far from civilization as a person can reasonably expect to get in Hong Kong. But look through the trees to the right. There is a sign. A rather luxurious signboard on four feet firmly planted in concrete foundations. What is it doing here? The headline says “Government Land”. The text goes on to say that any use of government land is prohibited, and persons engaging in that use will be prosecuted. And the message is signed District Land Office Shatin, with a telephone number for inquiries. The whole story is then repeated in Chinese.  Nearby there is another copy of the same sign in case you are approaching from up the valley. How did this happen?

Behind the sign you can see a more or less flat patch with no substantial trees on it. Although nature is now reclaiming it you can see it was cultivated once. In fact back in the 1990s it was cultivated by the Shatin Junior Police Call. The JPC is a well-intentioned youth organisation run by policemen in the hope that young people can develop a warm relationship with their local Force before they reach the stop and search age group. In those days the Shatin JPC was teaching its members farming. The field now reverting to jungle was then a beautifully organised vegetable patch, with long rows of prosperous looking crops. It was impressive. I never met the leader of this enterprise because my walking hours did not coincide with his presence, but some of my colleagues met him (the Baptist University staff quarters are just down the road) and reported that he was impressive too. The JPC farm was surrounded by a chain-link fence, and access was over a rather informal looking bridge over the stream, and a gate.

Eventually the police farming enthusiast was, I suppose, transferred to other duties or places. The Shatin JPC turned to other ways of amusing potential delinquents and the farm was abandoned. Someone removed the gate, but two plastic watchmen’s huts remained. One had been the toolshed and one the toilet. There ensued a long period in which the field was virtually deserted. It was visited by the odd dog walker (me) and I suppose by some of the wargames enthusiasts, because their little white pellets could be seen around the place.

A few years ago it attracted the attention of some amateur farmers. Attempts at long rows of vegetables appeared, along with some rather elaborate water arrangements and some climbing frames for beans and such. This did nobody any harm. Indeed the number of people who knew it was happening could probably be counted on the fingers of one hand. Somehow, though, word of these goings-on reached the Shatin District Land Office. And suddenly, action! One day I turned up with the dog to find that everything had changed. The farm had been ploughed up, the water holes had been filled in, the huts had been removed, as had the bridge. And instead there were the two signs.

This does not, in my opinion, reflect much credit on Shatin’s district administration. They do not cut grass, they do not up-keep paths, they do not fix bridges and they do not organise any constructive use of the countryside. But let someone start a small farm on an obscure and unused piece of government land, and officials will trek into the middle of nowhere to vandalize the installation and install, at unimaginable expense, large signs announcing that there is a dog in this manger.

Still, if you want to see government land being used for public purposes rather than private ones, it is nice to know that officials are empowered to remove unauthorised structures and if necessary prosecute those who installed them. The question which this raises is why the legal position is apparently different in Yuen Long. Government attitudes to illegal land use in Wang Chau village seem to be disappointingly limp compared with the robust approach to such matters exhibited in Shatin. I realize that there are legal obstacles to preventing farmers from vandalizing their fields and turning to anti-social crops like empty shipping containers or construction machinery resting between engagements. But there is no legal obstacle to dealing with such activities on government land. Why were the nameless farmers in my valley not offered “soft lobbying” of the kind bestowed on trespassers with political connections? Rule of law, anyone?

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