9 A human rights lawyer's perspective
The retirement of Andrew Li CJ and this conference provide an opportunity to reflect on Hong Kong's Court of Final Appeal (CFA) and consider the future. My perspective is that of a human rights lawyer and practitioner before the court, and the cases that my firm has litigated have involved issues of constitutional importance and fundamental human rights. Because a number of our new cases seem to be headed towards the CFA, while realizing the significance of this occasion for commemoration, I cannot help ‘working’, in the sense of considering what may be the barriers to justice and, with lessons since 1997, consider the prospects for success in future cases.
Can we achieve justice in our courts and in the CFA? I prefer the term ‘justice system’ as opposed to ‘legal system’ or ‘court system’ and believe that the difference is one of substance going to the core of the role of the justice system in our community. Can we win? This seems to be the fundamental question, certainly for aggrieved applicants,1 and before working towards an answer, I wish to make a few initial contextual observations.
Context
The Hong Kong CFA is an enormously important court, and developments here, including structural, political, and legal, can have worldwide significance. Various factors support this proposition. The first of these is the ‘China factor’ and the interaction, perhaps collision, with the legal system of Mainland China. How the justice system in China, as a rising global power, develops will have an impact on the world. The justice system of the Hong Kong Special Administrative Region (HKSAR) has a major role to play in the exportation of concepts of justice and the rule of law.2 Legal exchanges at all levels between lawyers and judges of Hong Kong and the Mainland take place, although exchanges on human rights and judicial review are only in the nascent stages.
In addition to the unique position of Hong Kong's common law courts in China, the Hong Kong courts can have a major influence in the region because of their well-respected legal traditions and role in being a contributor to justice in a region where the traditional checks and balances in a modern functioning state do not exist or are not fully formed, international human rights conventions are not ratified or domesticated, and other avenues to achieving justice are significantly curtailed. An example of this regional impact is litigation in the refugee and Convention Against Torture(CAT) areas of law. This is followed closely by practitioners and non-governmental organisations in the region, which may be experiencing human rights problems that have to a large extent been solved in more developed jurisdictions.3 The Hong Kong courts can also at times function as a forum where ‘Asian values’ and relativistic and universal values compete. I am fond of the quote from Yash Ghai in which he compares the roles of human rights in the West and in Asia:
The role of human rights is to fine-tune the administrative and judicial system and fortify rights and freedoms that are largely uncontroversial. In Asia, on the other hand, human rights have a transformative potential.4
Barriers to justice
I do not wish to play Darth Vader on this occasion, but the importance of justice trumps commemoration and calls for a dose of reality.5 I worry about the direction the courts in the Hong Kong SAR are heading with the CFA's role in setting the agenda. I can identify some of the areas of concern. The first is ‘misplaced margin’ and the dangers and inappropriateness of importing such a concept into Hong Kong.6 This is intertwined with a lack of political development. The second is the increased threshold test for leave and the difficulty of getting cases to court. The third is judicial self-censorship and the continuing fallout from the ‘reinterpretation’. Last, we need to be serious about judicial independence.
Misplaced margin
Non-responsive and non-democratic governance invites judicial reviews often as the only means of achieving some form of remedy. On political development in the HKSAR, Johannes Chan, in an article that contains perhaps an overly glowing assessment (see the ‘Reinterpretation fallout’ section later) of the judiciary, acknowledges the ‘democratic deficit’ and the unique circumstances in the HKSAR.7 After restating the basics and the place of the judiciary in a functioning democracy, he states the following:
In contrast, the functional constituency system in Hong Kong enables a powerful elite group to dominate the legislature, and the elected representatives of the people have only a weak voice. The Government is able to push through any legislation by engaging sufficient support from some elected representatives and the majority of the functional constituency representatives. On some occasions this was done irrespective of the merits or reasoning of the opposition. When the political process is no longer dictated by reasoning, and when opposite views are treated with ignorance or even contempt, those who are frustrated or disillusioned could only resort either to street politics or to the courts. Thus, when many cases of a political nature or with political overtone are brought before the Courts as attempts to change the system have led to nowhere in the political process, this is in a way a negative verdict and a sign of frustration of the political process. If the political forum remains ineffective, this trend of seeking judicial intervention will inevitably continue. In so doing, the integrity and independence of the judiciary will be subject to the most strenuous test. After all, the judiciary is not the appropriate forum to deal with difficult issues of distribution of resources or to formulate policies with far reaching consequences. So far, the verdict on the performance of the judiciary in adhering to its proper role and in withstanding political pressure is quite positive. However, if this trend continues unchecked, if the political process remains ineffective, and when the judiciary is unable to meet the expectations of the people, the rule of law will be undermined.8
Richard Cullen refers to the lack of democracy as well and states:
It is for this reason that undue deference by the Hong Kong judiciary towards the executive and towards the legislature raises special concerns. In the HKSAR, freedom is something of a ‘two-legged stool’. The judiciary and a free press provide two legs but the third, democracy, is at best only half a leg.9
And noting the importance of ‘legitimacy’, Yash Ghai writes,
Courts are now more willing to take on jurisdiction, in part because other institutions often enjoy less legitimacy than courts. Sometimes it is only by court intervention that a modicum of legality can be preserved…In Hong Kong, this point is particularly pertinent since neither the Hong Kong executive or legislature is fully elected.10
Because of the ‘two-legged stool’, the rationales advanced for deference by the judiciary to the executive or the legislature in the Hong Kong SAR lose much of their force. On this point, when administrative law expert Christopher Forsyth visited Hong Kong and was asked by the author whether in the Hong Kong context there should be a more interventionist judiciary in light of the lack of proper political checks and balances, he replied that ‘arguments for judicial deference weaken’.11
If deference is a pathogen infecting the judiciary in Hong Kong, then one of the vectors is the doctrine of ‘margin of appreciation’. Hartmann J (who became a Justice of Appeal and remains a non-permanent judge [NPJ] of the CFA) in a 2007 paper entitled ‘Judicial Review (The most striking Development in the Common Law Since the Second World War)’ stated:
The doctrine of proportionality is always accompanied by the recognition by the courts that they are not the primary decision-makers on matters of policy and a ‘margin of appreciation’ must be given to public authorities to enable them to make legitimate policy decisions.
But how wide is this margin? The answer is that the margin increases or decreases depending on the subject matter.
Particular deference is given in areas of economic and planning policy. Put another way in these areas, the courts will recognize a broader ‘discretionary area of judgment’ to which they will defer, on democratic grounds, to the considered opinion of the public authority.
However, the greater the restriction on fundamental rights, the less margin of appreciation, especially in areas where the courts themselves have particular experience and expertise (e.g., restrictions going to the trial process) [emphasis mine].12
In the case of C v. Director of Immigration, a case with great implications for the development of international human rights law, Justice Hartmann also referred to Hong Kong as an ‘open, democratic society’.13 Ghai was an early critic of the doctrine of the margin of appreciation as applied by Lord Woolf in an appeal to the Privy Council from Hong Kong.14 Writing on margin of appreciation, Sir Anthony Mason describes it as ‘[a]nother European importation’ and ‘an area of decision-making where other institutions enjoy a unique legitimacy and expertise which the courts lack’ [emphasis mine].15 Lord Lester, however, cautions that:
The concept of ‘margin of appreciation’ has become as slippery and elusive as an eel. Again and again the court now appears to use margin of appreciation as a substitute for coherent legal analysis of the issues at stake…The danger of continuing to use the standardless doctrine of the margin of appreciation is that…it will become the source of a pernicious ‘variable geometry’ of human rights, eroding the ‘acquis’ of existing jurisprudence & giving undue deference to local conditions, and practices.16
It does not strengthen the rule of law or do the cause of justice any good to pretend that we live in a democracy in the HKSAR. Justice will not be the result if we start from a fictitious premise. If the institutions referred to are the executive and the legislature, then the reality is that their legitimacy is, at a minimum, questionable.
If local context is important, then the whole idea of margin, as a European concept, born of functioning democratic jurisdictions should not be incorporated into the ‘two-legged stool’ that is the HKSAR. And if imported, the special context and circumstances of the HKSAR would dictate that the pendulum of intervention is required to move in the opposite direction for justice to be done.17 In his chapter in this volume, Mason NPJ refers to Lord Hoffmann's (also NPJ of our CFA) speech, ‘The Universality of Human Rights’18 and Hoffmann's criticism that the Strasbourg Court should allow a greater margin of appreciation for domestic courts before noting that these developments ‘could be relevant to the use to be made by the CFA of the Strasbourg jurisprudence’. It would be a dangerous development to transpose the European debate into Hong Kong without understanding the structural circumstances and the barriers to justice there. For one thing, although there may be legitimate ‘fine-tuning’ criticisms in Europe, in this region, we lack effective mechanisms to redress human rights violations.
With respect to conventions on human rights, Paul Mahoney refers to the concerns that the doctrine of margin of appreciation is ‘an improper reading into the text of a pro-government restriction’.19 He rejects criticisms that ‘through the margin of appreciation, the [European] Court has emptied many of the strict conditions laid down in the Convention of their strength’.20 Macdonald states:
But perhaps the Convention system is now sufficiently mature to be able to move beyond the margin of appreciation and grapple more openly with the questions of appropriateness which that device obscures.21
Benvenisti sets out what is at stake when judges misuse margin:
Margin of appreciation, with its principled recognition of moral relativism, is at odds with the concept of the universality of human rights. If applied liberally, this doctrine can undermine seriously the promise of international enforcement of human rights that overcomes national policies. Moreover, its use may compromise the credibility of the applying international organ. Inconsistent applications in seemingly similar cases due to different margins allowed by the court might raise concerns about judicial double standards. Even more importantly, the rhetoric supporting national margin of appreciation and the lack of corresponding emphasis on universal values and standards may lead national institutions to resist external review altogether, claiming that they are the better judges of their particular domestic constraints and hence the final arbiters of their appropriate margin. Thus, not only would universal standards be undermined, but also the very authority of international human rights bodies to develop such standards in the long run also may be compromised.22
It can become too easy for the courts to resort to the ‘special circumstances’ justification (in its various formulations) to depart from international human rights standards.23 Another potential ideological threat to the international human rights regime is the overemphasis of cultural relativism. Much has been written on the topic in respect of Asia,24 and there is the danger of resorting to a simplistic dismissal of international human rights standards without careful analysis as to whether the supposed differences really do justify denial of the fundamental human right at issue. Carol Jones writes:
Like the rule of law, the appeal to a common ‘Chineseness’ is one means of uniting the rulers and the ruled, the elites and the masses, the Hong Kong people and the Mainland government. If this succeeds, sooner or later English rule of law may be seen as ill-suited to a Hong Kong which is now more Chinese in complexion.25
Leave test
Concern has been expressed in Hong Kong about the rise in the number of judicial reviews. In his speech at the opening of the new legal year on 8 January 2007, the former Chief Justice, Mr. Andrew Li Kwok-nang, talked about the ‘phenomenon of judicial review’ and said ‘it should be seen as providing an essential foundation for good governance under the rule of law’.26 However, he cautioned that judicial review cannot provide a ‘panacea’ for these problems:
Within the limits of legality, the practical solutions to the complex and difficult political, economic and social problems faced by society must be discussed and found through the proper operation of the political system. Citizens have to look to the political process to deliver appropriate workable solutions to these problems.27
The message was toned down slightly from the same occasion in 2006, when he said:
The courts could not possibly provide an answer to, let alone a panacea for, any of the various political, social and economic problems which confront society in modern times.28
Later in the same year, the CFA revisited the test for leave in the case of Peter Po Fun Chan, in which Chief Justice Li referred to the earlier ‘potential arguability’ test in the Court of Appeal case of Ho Ming-sai29 and stated:
Hartmann J, who has wide experience in this area of the law, whilst accepting that judges at first instance were bound by the test, expressed sympathy with the view that the test was too weak.30
Referring to the rise in the number of judicial reviews, the Chief Justice then continued:
Whilst in a society governed by the rule of law, it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities on judicial review, the public interest in good public administration requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should third parties affected by their decisions face such uncertainty.31
With a brief justification for the change, the test of arguability was then adopted to replace the potential arguability test, although it is recognised that ‘more time may need to be spent by the judge in dealing with leave applications than previously’.32
The change was reported in a South China Morning Post article wherein I commented that ‘the judgment might end up curtailing one of the few avenues Hong Kong people had for challenging the actions of their government’.33 With the stricter test, I was concerned many human rights cases were ‘not going to see the light of day’ and legal aid was going to be more difficult to obtain because of the new standard.34 The article noted that ‘without legal aid, some people would be unable to take even the first step of seeking leave for a review’.35 Within two weeks, the Legal Aid Department and a High Court Master referred to the new test in refusing to provide legal aid support in a case with human rights implications. Such cases may now have to be taken on a pro bono basis, and the applicant will have to consider potential adverse cost consequences if the putative respondent is going to be more routinely invited to an oral hearing at the leave stage.
Six weeks later, on the occasion of the opening of the legal year, it was reported that ‘the Secretary for Justice reminded Hong Kongers that their right to have government decisions judicially reviewed is a limited one.…The comments by Wong Yan-lung seem to be aimed at stemming the rising tide of applications by members of the public to have government decisions reviewed’.36 Two cases were referred to and the article reported that the
use of judicial review over Queen's Pier was described by Martin Lee Chu-ming as performing the role of a proxy in place of fully representative and responsive government. Mr. Wong also used his speech to endorse a November decision by the Court of Final Appeal that raised the bar in terms of the test the courts will use in determining whether or not a review should proceed.37
In the same article, it was stated: ‘The minister's comments come a week after the Court of Appeal warned against what it described as a growing fashion in Hong Kong for people in criminal cases to apply for judicial reviews of decisions relating to the conduct of those cases’ [emphasis mine].38
The concern emanating from, inter alia, government officials and the judiciary has to be seen in the context of a political system that stresses social harmony and can, at times, demonise those critical of the government.
Although the vehicle of judicial review may occasionally be hijacked and perhaps misused, one needs to look closely at each case and the overall spectrum of cases and probe the reasons for the judicial review in the first place. Often, it is only by initiating a judicial review that the hidden, non-transparent or absent policymaking will be exposed to some scrutiny. In the area of asylum seekers and CAT claimants, it is entirely the fault of the HKSAR government and may even be a preferred strategy, making the situation as difficult as possible for the claimants and only putting in place occasional incremental and piecemeal changes in reaction to litigation, thus forcing the courts into the role of leading the impetus for changes – a difficult role that they do not seem willing or able to play.39
Reinterpretation fallout
In describing the HKSAR context and some of the barriers to justice, one cannot fail to mention the spectre of interpretations by the Standing Committee of the National People's Congress (NPCSC) (or ‘reinterpretations’ from the perspective of many, realizing the damage it has inflicted on our legal system, demoting our CFA in the eyes of some to that of a ‘Court of Semi Final Appeal’40). Being declaratory of the law as it always has been and at a stroke (and without open debate) dismissing the jurisprudential determinations of the courts, the threat of a possible NPCSC interpretation is quite unique to the HKSAR.
The only limitation on such an interpretation is that if it is made under the procedure provided for in Article 158 of the Basic Law (BL), it would preserve ‘judgments previously rendered’. Lau Kong Yung41 decided that this meant the judgment insofar as it determined the legal position of the parties to the proceedings and no further. The judgments in Ng Ka Ling42 and Chan Kam Nga43 were therefore stripped of any broader effect insofar as non-litigants were concerned.44
The prospect that a test case may ultimately be reduced to the narrow confines of its sealed orders is enough to radically alter the nature of advice given to clients when interpretations of the BL may be involved. It may never more be the advice of lawyers that persons in the same legal position need not launch their own proceedings but need only wait until the judgments in the proceedings in which they are interested are handed down. The applicants who after 1 July 1997 sought right of abode did precisely that (waited patiently) and were ultimately disentitled unless they fulfilled the random and unjust ‘concession policy’ promulgated by Hong Kong's Chief Executive as a palliative on the day the NPCSC announced its interpretation.
Even more dramatically, it may not be sufficient to launch proceedings, as these may not result in a ‘judgment’ to which protection might attach. The only safe course may be to advise the client not only to launch proceedings to raise the same issues but seek by joinder application to become a party to the test case. If it is too late for such an application because, for example, the test case has proceeded beyond first instance, then after judgment has been delivered, assuming it is favourable, an urgent hearing may have to be sought to ensure judgment is delivered in the ‘coattails’ action as soon as possible, lest there be an interpretation. This is not a practitioner or advocate's paranoia but the nature of the system in which we are operating.
The resistance by the HKSAR government to ‘test cases’ is well known to my firm. The HKSAR government is now extremely reluctant to acknowledge proceedings as test cases and to agree that persons other than the actual litigants might benefit. It, as well as everyone else, is hamstrung by history. It cannot give reassurance to non-parties, lest that be used against them in subsequent proceedings to found a ‘legitimate expectation’ of benefiting (as some fortunate right of abode litigants who had received letters telling them not to rush to courts before the CFA January 1999 rulings were able to argue successfully highlighting the ‘anti rule of law’ nature of all of this) in the subsequent January 2002 ruling in Ng Siu Tung.45 At the same time, any general reassurance that the non-parties can rest easy on the basis of the doctrine of precedent rings hollow. The government is in no position to give such a reassurance in cases involving a BL interpretation and is unlikely to do so, wishing to ‘keep its options open’ lest an unfavourable and indigestible judgment be delivered again by the CFA. The prospects of ‘prompting’ another ‘reinterpretation’ undoubtedly factor into the thinking of lawyers and judges involved in the next big case.46
Judicial independence
Although one may be persuaded by arguments along the lines of Michael Mandel,47 who is critical of the Charter of Rights and Freedom era in Canada, taking important questions on social issues and human rights out of the hands of elected politicians and putting them in the hands of an unelected judiciary, for the reasons set out earlier in this chapter, the arguments weaken in the HKSAR context.
There has been some muted criticism48 of the process of judicial appointments, including the lack of transparency of the process, lack of adequate information being provided to the Legislative Council, the fact that a resolution could be carried even if there were two dissenting votes on the Judicial Service Commission (now the Judicial Officers Recommendation Commission [JORC]), the presence of the Secretary for Justice as a member of JORC, and concern about political appointments onto the JORC.
As recently as 7 November 2008, the public was informed in a brief press release on behalf of the judiciary that Mr Murray Gleeson AC, The Right Honourable the Lord Walker of Gestingthorpe, and The Right Honourable The Lord Neuberger of Abbotsbury were recommended as NPJs from other common law jurisdictions to the CFA. Given the important cases that they may hear on social and human rights questions, should the public not be entitled to know a little more about how they were selected?
Foreign judges sitting on the CFA have been criticized for their possible impact and importation of ideas wrongfully transplanted from Western countries, being referred to as ‘parachute judges’.49 The criticism is mainly that they would not have due regard to the social conditions in the HKSAR. But I would argue that it is equally likely that parachute judges would be overly deferential as would be any polite guest unfamiliar with his or her new surroundings. As discussed earlier, concepts of judicial restraint from the West can be wrongly imported into Asia. I recall Beverley McLachlin from Canada's Supreme Court speaking at the Commonwealth Law Conference in Malaysia in 1999 about judicial restraint precisely when the Malaysian judiciary (of questionable independence) needed to be emboldened because of the political pressures from the executive. For those advocating a robust, independent and rights-protecting judiciary in Malaysia, it was the wrong message at the wrong time.50
Conclusion
Chief Justice Andrew Li steered us capably through unique and difficult times when, because of the post-handover political uncertainty, perhaps a more conservative approach was deemed important when it came to human rights. But serious human rights problems remain, and for the future court, a more rights-conscious public is not going to be satisfied with a legal system that does not deliver practical justice. Concerns about the possibility of achieving justice are heightened when barriers to success in the courts are erected, such as the misuse of margin of appreciation and the increased threshold for leave. The pressure on the future court to find a remedy is exacerbated by the fact that in Hong Kong there exists a democratic deficit, and there is no ‘Strasbourg’.
Although an aggrieved applicant has had a better chance of success in the CFA, it is very difficult to get there. The danger for the rule of law and justice in Hong Kong lies in the maintenance and installation of further barriers so that human rights victims consider it futile to use the courts.
1 I am reminded of a conversation with a prominent academic who queried whether we should consider not appealing in one of our cases because we had achieved a useful statement of principle in the judgment. He had to be reminded that we lost the case and that the clients/applicants would find little solace in the statement of principle.
2 If anything the system in China should be moving towards a system like that in Hong Kong. See prescription by , Constitutional Law in China (Hong Kong: Sweet & Maxwell Asia, 2000) 111. Justice Bokhary of the CFA stated after a trip by 15 HKSAR judges to Beijing: ‘We are not there to learn about mainland law with a view to applying it’ in Cliff Buddle, ‘Judge Defends Independence of Judiciary’, South China Morning Post, 27 April 2000. Journalist Tim Hamlett notes, ‘The attraction of the “one country, two systems” principle, after all, is that it insulates us from the ramshackle structure which passes up there for a legal system. This is an attraction because what China is pleased to call its legal system fails to meet even the most exiguous international standards’ in Tim Hamlett, ‘City U Unimpressive in Defending Its Own’, South China Morning Post, 6 August 2001, 12.
3 , ‘Refugee Law in Hong Kong: Building the Legal Infrastructure’, Hong Kong Lawyer, September 2009, 14.
4 ‘Democracy, Development and Human Rights: Challenges for Lawyers’, Forum Asia and the Indonesian Legal Aid Foundation, 1995.
5 At times appreciated! See , ‘Publication Review of “Effective Judicial Review: A Cornerstone of Good Governance”’ (2010) 126Law Quarterly Review651–4.
6 For an early criticism of the application of the margin of appreciation in Hong Kong, see , ‘Sentinels of Liberty or Sheep in Woolf's Clothing? Judicial Politics and the Hong Kong Bill of Rights’ (1997) 60The Modern Law Review459.
7 , ‘Basic Law and Constitutional Review’ (2007) 37HKLJ 407. See pp. 445–6, where Chan writes: ‘It has restored its full vigour and confidence after the Chong Fung Yuen case’ and ‘by and large, fundamental rights have been upheld’.
8 Ibid., 446–7.
9 , ‘Media Freedom in Chinese Hong Kong’ (1998) 11Transnational Law383, 401.
10 , ‘Litigating the Basic Law: Jurisdiction, Interpretation and Procedure’ in & (eds.), Hong Kong's Constitutional Debate: Conflict over Interpretation (Hong Kong: Hong Kong University Press, 2000), 23.
11 Lecture/Discussion, Margaret Ng LegCo Offices, 28 September 2001. Note also W. S. Clarke, ‘Judicial Review of the Discretionary Powers of the Attorney General of Hong Kong in the Conduct of Criminal Proceedings’ (1983) 13 HKLJ 133, where he writes on p. 147, ‘The status quo may well suit the needs of countries overseas. But in light of the peculiar circumstances of Hong Kong it is submitted that the scope of judicial review here needs to be broadened’.
12 On file with the author.
13 C v. Director of Immigration [2011] 5 HKC 118 (CA), aff'g [2008] 2 HKC 165, [183] (CFI), but ultimately reversed by the CFA in FACV18/2011, 25 March 2013.
14 , ‘Sentinels of Liberty or Sheep in Woolf's Clothing? Judicial Politics and the Hong Kong Bill of Rights’ 60 (1997) Modern Law Review459–80.
15 Sir Anthony Mason, ‘The Place of Comparative Law in Developing the Jurisprudence on the Rule of Law and Human Rights in Hong Kong’ (2007) 37 HKLJ 299.
16 Lord Lester of Herne Hill, ‘The European Convention on Human Rights in the New Architecture of Europe: General Report’ in 8th International Colloquy on the European Convention on Human Rights: proceedings organised by the Secretariat General of the Council of Europe in co-operation with the Ministry of Justice of Hungary and the Institute for Legal and Administrative Sciences of the Hungarian Academy of Sciences, Budapest, 20–23 September 1995 (Strasbourg: Council of Europe, 1996) 227.
17 Perhaps a theoretical construct having aspects similar to the original intent of the Courts of Equity is necessary for justice to be done in jurisdictions such as the HKSAR.
18 Judicial Studies Board Annual Lecture, 19 March 2009, published in (2009) 125 LQR 416. See also, ‘Lord Hoffmann in All-Out Attack on European Court of Human Rights’, Solicitors Journal, 7 April 2009, accessible at: www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=14002&c=1&eclipse_action=getsession.
19 , ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’ (1990) 11Hum. Rts L. J. 57, 80.
20 Ibid., 81.
21 ‘The Margin of Appreciation’ in , , and (eds.), The European System for the Protection of Human Rights (Dordrecht: Kluwer Academic Publishers, 1993) 83, 122.
22 , ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31International Law and Politics843.
23 Mark Daly, ‘International Human Rights Standards in Hong Kong Courts’, Dissertation LLM (Human Rights) 2001, Department of Law: The University of Hong Kong. See for example, Ng Kung Siu v. HKSAR (1999) 2 HKCFAR 442 (the flag case) and the CFA's view that ‘due weight’ should be given to the HKSAR legislature and ‘Hong Kong is at the early stage of the new order’ as relevant factors in deviating from the dominant international trend. Any detailed rationale for deviating from the international perspective seems lacking.
24 and (eds.), The East Asian Challenge for Human Rights (Cambridge: Cambridge University Press, 1999)Part I.
25 , ‘Politics Postponed: Law As a Substitute for Politics in Hong Kong and China’ in (ed.), Law, Capitalism and Power in Asia: The Rule of Law and Legal Institution (London: Taylor & Francis Ltd Routledge, 1998).
26 ‘CJ's speech at ceremonial opening of the legal year 2007’, accessible at www.info.gov.hk/gia/general/200701/08/P200701080120.htm.
27 Ibid.
28 ‘Chief Justice's speech at the ceremonial opening of the legal year 2006’, accessible at www.info.gov.hk/gia/general/200601/09/P200601090137.htm.
29 Ho Ming-sai v. The Director of Immigration [1994] 1 HKLR 21.
30 Peter Po Fun Chan v. Winnie C.W. Cheung (2007) 10 HKCFAR 676, 684[10].
31 Ibid., 685[14].
32 Ibid., 686[17].
33 ‘Top Court Acts on Increase in Judicial Reviews’, South China Morning Post, 1 December 2007, 1.
34 Ibid.
35 Ibid.
36 ‘Minister Lays Down the Law Over Right to Seek Judicial Reviews’, South China Morning Post, 15 January 2008. See also the criticisms by Johannes M. M. Chan, ‘A Retrograde Judgment’, Ming Pao, 13 February 2008.
37 ‘Minister Lays Down the Law’, ibid.
38 Ibid.
39 See note 4 above.
40 Resulting in a well-attended demonstration by traditionally conservative Hong Kong lawyers.
41 Lau Kong Yung v. The Director of Immigration (1999) 2 HKCFAR 300.
42 Ng Ka Ling v. The Director of Immigration (1999) 2 HKCFAR 4.
43 Chan Kam Nga v. The Director of Immigration (1999) 2 HKCFAR 82.
44 See , , and (eds.), Hong Kong's Constitutional Debate, Conflict Over Interpretation (Hong Kong: Hong Kong University Press, 2000).
45 Ng Siu Tung v. Director of Immigration (2002) 5 HKCFAR 1.
46 See Chapter 3 (Yang) in this volume. Although appropriate, it does not inspire confidence thinking of the CFA judges playing a game of chicken with the NPCSC.
47 , The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall & Thompson, 1989).
48 ‘The Process of Appointment of Judges in Hong Kong Since 1976’, Research and Library Services Division, Legislative Council Secretariat, 10 April 2001, accessible at www.legco.gov.hk/yr00-01/english/library/0001rp_7.pdf. See also Berry F.C. Hsu, ‘In Colonial Hong Kong, the Concept of Separation of Powers Was Rather Murky. The HKSAR Inherits This Legacy’ in ‘Judicial Independence in Hong Kong: Apparent or Real?’, Hong Kong Lawyer, October 2004.
49 Cliff Buddle, ‘Judges Who “Drop In”’, South China Morning Post, 9 March 2001 and Angela Li, ‘Beijing “Fearful of Judicial Activism”’, South China Morning Post, 21 February 2001. It seems to be a requirement that such judges hail from ‘union jack’ countries, namely the United Kingdom, Australia, and New Zealand.
50 The author has attended, as international observer for Amnesty International, the trials of Anwar Ibrahim and Lim Guan Eng (both opposition leaders at the time). See Christine Sypnowich, ‘Ruling or Overruled? The People, Rights and Democracy’ (2007) 27 OJLS 757:
Indeed, revulsion at the values of apartheid should entail an assessment of the judicial decisions that upheld those values not in terms of their faithfulness to the morality of the community, constitutional or otherwise. If it were, judges would be able to do nothing when facing sufficiently thorough-going wicked political orders. Rather, as David Dyzenhaus argues, the old South Africa's judiciary, by upholding the social order of apartheid instead of curtailing it by reference to fundamental rights, were guilty of a ‘dereliction of duty’.
’ remarks quoted here are contained in his book, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford: Hart Publishing, 1998) 60, 71.
