Andrew Li speaks for Hong Kong in his Defence of the Basic Law _ Evan Fowler 方禮倫 _ 主場新聞

Evan Fowler 方禮倫

LSE倫敦政經學院歷史系畢業，不屬單一種族、國籍，土生土長香港人。

2013-11-15 18:38:53

Former Chief Justice Andrew Li has in for pointed criticism from China for having said on Wednesday that the National People's Congress Standing Committee should not reinterpret the Basic Law to contradict a judgement by the Court of Final Appeal. It would be, Mr. Li was recorded as stating, damaging to Hong Kong's judicial independence.

Mr. Li's statement has drawn criticism from Dong Likun (董立坤), a senior research fellow at the Institute of Hong Kong and Macau Affairs (國務院港澳事務辦公室). His wordings was that "his view has violated basic legal principles and commits fundamental errors about the law". Given that these comments were made publicly in a seemingly official capacity and received high press coverage is suggestive that this is the position of the Chinese leadership in Beijing and were most likely pre-planned.

Rather than ask who is right, a more poignant question would be what do these two conflicting positions tell us about how the law is understood. What exactly are the "basic legal principles" that Dong Likun accuses Andrew Li of violating? Why would an experienced lawyer, a "man of high legal quality" to use Dong Likun's own words, commit such fundamental errors?

As a man who has consistently held the line that Hong Kong's judiciary must steer clear of political, social and moral issues, on which it has neither the authority nor should it have the right to intervene, Mr. Li has proven to be a man very much of the Law in the English sense. The separation of the Law from power, it's independence, being fundamental to this understanding of the Law and its place in society. For Mr. Li and those who were brought up and trained in this tradition, the Law does not serve power but limits it; it provides an independent set of rules under which everyone is equal, and everyone must adhere to. It is and must be separated from politics. The Law is a servant of the people, conferring on and providing a guarantee to each of such rights as we are afforded in exchange for obligations to the state. This is the social contract.

Dong Likun, on the other hand, may also be a legal scholar, but one from a very different tradition. For him, the law is a tool of the state, subordinate to the nation. The law does not confer and guarantee rights in exchange for the obligations that come from living within a jurisdiction, but at the grace of authority. The law in this tradition is very much a political instrument, a tool rather than arbiter of power, its independence being understood in the way a department of state is independent from another but still in effect united in its political objective.

What Andrew Li's comments and Dong Likun's response has highlighted is not that one is on principle right and the other on principle wrong, but that there is a very real divide between how the Law is understood at a very fundamental level here in Hong Kong and on the Mainland. It is a divide that is also manifesting itself outside of the public sector. Over the last few years many friends of mine who practice law in Hong Kong, both in specialized firms and as in-house counsels, have confided in me of their concerns of who their understanding of the law at a very fundamental level has been challenged and superseded by lawyers from the Mainland brought up and trained in a very different tradition. Many of these lawyers have spent time training abroad, acquiring the veneer of professionalism that are the mark of a business school education, but are very different in their fundamental understanding of law and it's role in society.

If neither Andrew Li nor Dong Likun can claim to be right on principle, given that each represents to different traditions and understandings of the law, what we should ask next is what was the implied understanding under the Basic Law. Judicial independence seems quite clear enough, and the opinions of those who actually took part in the negotiations and drafting of the document seem to stand by Mr. Li's position. That is, of course, those that are themselves possessive of an independent legal opinion on the matter. But then again, in Dong Likun's tradition, legal opinion is always political, and the legal scholars act less as a guardian of an independent legal position as a mouth piece of state power.

My personal opinion is what really matters here is what tradition of law is representative in Hong Kong. When Hong Kong people and businesses go across the border our relationship with and expectations of the law is quite different. There is a difference, and it is this difference that Andrew Li is, in his statement, trying to preserve. It is a difference that deserves to be protected and fought for as long as it represents the different relationship that the people of Hong Kong have with our legal system. If China respects Hong Kong people, and if so many people from the Mainland wish to call our city home, a decisions I like to think has as much to do with a greater sense of security and confidence in our legal institutions as our shopping malls, then perhaps the likes of Dong Likun, as a legal scholar, should consider learning something from Andrew Li.