Independent judges are no protection against bad laws, m’lud, Perhaps if some of his friends had been jailed, Lord Sumption would share my misgivings about foreign lawyers fostering the pretence that we still enjoy the rule of law, writes Tim Hamlett. by Tim Hamlett, 28 March 2021, Hong Kong Free Press
The pro-government press has been fawning over an unlikely hero – retired British judge Lord Sumption. His Lordship pleased the poodles by writing a letter to The Times of London, defending his decision to carry on with his appointment as one of the overseas judges invited – one at a time – to sit on our Court of Final Appeal.
Apart from a detour into Hong Kong history, which is both inaccurate and irrelevant – we became an ex-colony 24 years ago – his basic idea is that you can have an independent judiciary and the rule of law without democracy, and that this is still something valuable.
In short, he’s doing it to help us. It is rather touching, really, that this elderly gent is prepared to suffer the rigours of first-class travel, and endure the privations of several weeks in a five-star hotel, for us. How sweet. No doubt there will be some parsimonious lai see thrown in, on which he will not have to pay tax because it’s earned outside the UK, but I’m sure he doesn’t need the money.
His Lordship seems to have rather poor sources of information in Hong Kong. The nomination of judges to hear national security law cases has, he says, been uncontentious. Well there hasn’t been much contention because the whole process has been entirely secret. You only find out who’s on the list when he or she appears at the trial.
This part of the national security law has one happy consequence for his Lordship, though. The overseas judges on the Court of Final Appeal are not on the list and are not on the bench for national security cases. So Lord Sumption can, as it were, get his snout in the trough without getting his trotters dirty.
But I cannot, alas, agree with his idea about the separate value of an independent judiciary if you are ruled, as we are, by a distant dictator. Independent judges are a useful protection against illegal action by overbearing officials. They are no protection at all against bad laws.
If the law is arbitrary, brutal and oppressive the judges will loyally enforce it, because that is what judges do. When ruining people’s lives is part of your job description you need to think that you have no choice. It helps you to sleep. So arbitrariness, brutality and oppression will occur.
His Lordship does not seem to have got his head round what we are encountering here. Perhaps if some of his friends had been jailed he would share my misgivings about foreign lawyers fostering the pretence that we still enjoy the rule of law.
He has, after all, written perceptively about the way these things change: “We will not recognise the end of democracy if it comes. Advanced democracies are not overthrown. There are no tanks on the streets, no sudden catastrophes, no brash dictators or braying mobs. Instead, their institutions are imperceptibly drained of everything that once made them democratic. The rhetoric of democracy will be unchanged, but it will be meaningless.”
And this is the way it goes with the legal stuff as well. We still have the courts, the robes, the wigs, the rhetoric.
All that is missing are trivial things like the right to bail, the right to a fair trial, the right to trial by jury … Hong Kong judges have to navigate through this as well as they can. Visitors can stay home.
And you pro-government people need to be careful what you wish for. Lord Sumption has made an interesting post-retirement career as an advocate of civil disobedience.
Here is His Lordship on the subject: “I feel sad that we have the kind of laws which public-spirited people may need to break. I have always taken a line on this, which is probably different from that of most of my former colleagues. I do not believe that there is a moral obligation to obey the law… You have to have a high degree of respect, both for the object that the law is trying to achieve, and for the way that it’s been achieved. Some laws invite breach.”
Indeed! All one needs do to prove that is look at what corporations do, notably Encana/Ovintiv illegally frac’ing Rosebud’s drinking water aquifers, and their “democratic” enablers, AER, Alberta Environment (what a farce), CER, OGC, EPA, Texas Railroad Commission etc. etc. etc. Also look at “democratic” judges that do not uphold the law.
This is what Benny Tai has been saying for years. And look, your Lordship, where it has got him.
“Democratic” Racism Interlude:
End “Democratic” Racism Interlude.
Beijing unanimously approves Hong Kong election overhaul, reducing democratic representation, Candidates will be pre-approved by a vetting committee and democratically-elected seats will be reduced as Chief Executive Carrie Lam hails election “improvements.” by Kelly Ho, 30 March 2021, Hong Kong Free Press
China’s top legislative body has approved major changes to Hong Kong’s electoral system, with the 167 members present all voting in favour of the overhaul. The move reduces the number of seats in the legislature which are democratically elected by the public, and introduces a vetting committee to pre-approve potential candidates.
Beijing loyalist Tam Yiu-chung – Hong Kong’s sole delegate to the Standing Committee of the National People’s Congress (NPCSC) – said on Tuesday that members unanimously approved the amendments to Annex I and II of the Basic Law to revamp the city’s elections.
In a video released by the DAB, the city’s largest pro-Beijing Party, Tam said that the city’s legislature – expanded from 70 to 90 members – will see 40 members selected by the Election Committee. The committee, largely made up of pro-Beijing loyalists, currently selects the city’s chief executive.
The Election Committee will see more representatives from patriotic groups, Tam said, as well as members of the Chinese People’s Political Consultative Conference and other national organisations.
The remaining seats will go to 30 lawmakers in functional constituencies, while only 20 seats will be democratically elected by the public. Functional constituencies consist of professional or special interest groups, such as commerce, industrial, accountancy or education.
Tuesday’s vote came around three weeks after China’s rubber-stamp passed a resolution to “improve” the existing electoral rules in Hong Kong, with an aim to ensure only “patriots” administer the semi-autonomous region.
District councillors neutered
Tam also said district councillors will be ousted from the Election Committee, which increase its membership by 300, from the current 1,200. He said the move will “depoliticise” the government advisory body, preventing it from becoming a platform for “anti-China forces” to disrupt the city and paralyse the government.
Currently, 17 out of 18 district councils in Hong Kong are controlled by the pro-democracy camp, following their landslide victory in 2019. They are seen as the last opposition force left in the government, after pan-democratic lawmakers resigned en masse last November in protest to the disqualification of four of their colleagues.
Tam said there will be ten geographical constituencies with two seats per area. But he said the NPCSC did not lay out details of how exactly the new geographical constituencies will be drawn: “Some concrete details can only be released when the SAR government conducts local legislative works. Right now, it is the overall arrangement and the distribution of some quotas,” he said.
Tam said police national security unit and the Committee for Safeguarding National Security of the HKSAR will play a role in helping a new vetting committee to review the qualification of candidates for the Election Committee, the chief executive and the legislature. “Because the national security committee and police are more familiar, they can have a more comprehensive understanding of whether the candidate is suitable or not, whether [he or she] upholds the Basic Law… and other relevant requirements,” Tam said.
After passing the scrutiny of the vetting committee, legislative election hopefuls will also need to secure at least two nominations from each of the five sectors in the Election Committee, Tam said.
The pro-Beijing figure added the changes approved by the NPCSC will take effect on Wednesday.
The implementation of the electoral changes is similar to the enactment of the national security law last June 30. Beijing passed the controversial legislation that outlaws secession, subversion, collusion with foreign powers and terrorist acts without local legislative oversight.
At a weekly press briefing on Tuesday before Beijing approved the details of the overhaul, Chief Executive Carrie Lam hailed the “improvements” and said she will hold a press conference later to announce the follow-up work by the local government: “We have a duty to explain to people of Hong Kong why the improvements were needed,” Lam said. The government will also need to go through with local legislation and conduct elections later on during the year,” Lam said.
An estimated HK$2.5 million tax dollars have already been spent in less than two weeks to promote Beijing’s overhaul, HKFP reported last week.
Refer also to:
Legal experts question Beverley McLachlin’s position at Hong Kong court; Amir Attaran: “[Her] judgment is deeply lacking – like shamefully – if she thinks it propitious to become a judge in Hong Kong at its peak of its repression. … So what possible good can she do by being there, and collaborating in emergent tyranny? Her moral compass is totally demagnetized.”
Nasty! Canadian courts describing “individuals as exhibiting ‘vexatious-style’ behavior without formally designating them as a vexatious litigant.” Is that how Supreme Court of Canada Justice Rosalie Abella gets away with ruling AER found Ernst to be “vexatious litigant” when evidence proves AER found Ernst to be a “criminal,” 7 years later, a terrorist – all without charges, evidence, trial or due process? With AG Jody Wilson-Raybould saying & doing nothing about Canada’s top judicial farce?
Who orders a new hearing for a Supreme Court of Canada ruling where 9 justices knowingly published a lie and sent it to the media? Who “slaps” Justice Rosalie Abella for knowingly lying in her ruling and belittling the applicant? Certainly not the Canadian Judicial Council!
Jessica Ernst Open Letter to Chief Justice Beverley McLachlin Regarding False and Seriously Damaging Statements in Justice Rosalie Abella’s Supreme Court of Canada Ruling, Ernst v AER Ernst of course received no reply, no apology, no correction. “Justice” Big Oil Bully style.
Damaging the Charter: Ernst vs Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Hall Law School, York University. Comment: “It causes one to question how much both the plurality and the dissent were driven by the desired end-state of the judgment, rather than consistency in applying principles of public law.”