Peel the Onion | Book review of 'The dance of folly: or how theatrics have tarnished the rule of law'

By Richard Cullen

This book by the distinguished Hong Kong jurist, Henry Litton, provides a penetrating analysis of a series of high profile cases. Throughout the book, Litton highlights repeated failures to stop the initiation of improperly based judicial review applications - many of which are publicly funded by legal aid. Some may disagree with the central case made. But where they do, most will still find themselves thinking deeply about what is argued in this highly readable work.

Chapter 4, entitled, "Do Judges Run Prisons?" provides a withering review of a case involving certain personal hygiene procedures applied within prisons in Hong Kong. In March 2012, Leung, Kwok Hung, widely known as "Long Hair", was convicted before a magistrate. As he commenced his sentence of four weeks in 2014, his hair was cut short in accordance with long established prison regulations.

Leung lodged an appeal to the High Court, against the decision to cut his hair. A declaration was given in his favour in a 39 page judgment delivered in late 2016. The Court of Appeal (CA) reversed this outcome in another prolonged judgment in April 2018. In November 2020, the Court of Final Appeal (CFA) overruled the CA and restored the original judgment. The entire process took over five years. It transformed what Henry Litton powerfully argues was clearly (and justly) a matter best left to be decided by the prison administration, into an elongated discussion of equality rights, which now complicates custodial discipline measures.

Litton says the Judge at First Instance failed to accept his basic, judicial gate-keeping responsibility. Subsequently, the disarray was compounded when the CFA failed in its leadership role by giving the procedural (access to judicial review) aspects of the case "not an ounce of thought", simply following where it was led by counsel.

Litton concludes by observing that: "The judges, at all three levels of the courts, seem drawn to overseas case law as moths to a flame: apparently brushing aside the inconvenient truth that the common law system operates under the principle of One Country Two Systems (OCTS). Such a mind-set spells disaster in the long run. It is not a formula for the long continuation of the common law in Hong Kong".

The criticisms leveled are sharp but they are lucidly argued, step by step. Litton's analysis of the Face Covering Case in chapter 3 (involving the use of the Emergency Regulations Ordinance (ERO)) makes one perceptive point after another. He first notes that judicial review is meant to aid those with a real grievance in the public law field. Litton asks the question which the court did not: "Were the applications [for judicial review] made in good faith – or were [the applicants] just pursuing a political agenda?"

In an extraordinary judgment, the two High Court Judges hearing the case at first instance declared that the ERO was unconstitutional and they also struck down most of the regulations made thereunder. This decision: badly handicapped the Hong Kong Police who were in the midst of managing the most difficult crisis they had faced in decades; and it openly challenged the fundamental constitutional role of the sovereign. Beijing explicitly reviewed the laws of British Hong Kong in February, 1997 and then adopted most of those laws. Next, a list was provided of particular laws which were not adopted because they contravened the Basic Law. The ERO was not on this list.

The CA overturned the ERO declaration and restored most of the regulations. Finally, the CFA dismissed every ground relied on by the applicants – restoring all the regulations. By this time, the judgments, described in the book as a "carnival of words" ran to over 320 pages, in total. Litton trenchantly notes that: "It should have been blindingly obvious that counsel's arguments that the [ERO] was unconstitutional verged on the absurd. Why was it given oxygen by the judges?"

In chapter 7, the book provides an overview of the new National Security Law (NSL). Litton first outlines the history of the failed attempt to enact new national security provisions in 2003 in Hong Kong. He then summarizes the terrifying extent of the lengthy 2019 insurgency. He also notes how this massive dispute in Hong Kong was used, inter alia, as a means to advance geopolitical interests aligned against China. In these circumstances, the need to upgrade national security protection became urgent.

In a paper written by Paul Harris, currently Chair of the Hong Kong Bar Association, it is said that NSL Article 43 (listing police powers), "goes far to create a police state". Litton says that this claim is a "gross exaggeration". He goes on to argue persuasively against this paper – and a related paper on the Joint Declaration by the same author.

The concluding chapter deals with the "35 plus primaries" organized by the opposition in July 2020 (after the NSL was proclaimed) to find candidates prepared to use their Legislative Council (LegCo) powers, if elected, to apply new constitutionally disruptive pressures on the Hong Kong Government.

Litton argues that what was sinister about this scheme was how it was designed "to implement a wider plot called "ten steps to mutual destruction" which had been outlined in a local newspaper on 28 April, 2020". He explains, based on the outlined plan, that, if the 35 plus majority had been secured, the new legislators were committed to using their powers to create chaos.

The central message of this book can be summarized as follows:

• Hong Kong is inalienably and fundamentally part of China;

• As the HKSAR, it enjoys remarkable special, constitutional, political, economic and social privileges and opportunities within China under the OCTS framework;

• But it also owes deep obligations to China, under OCTS, to protect national security within the HKSAR and within China;

• This obligation has been singularly amplified by the increasingly hostile efforts by the US (and heavily-encouraged-allies) to confront and contain the rise of China, which threatens American hegemony more seriously than at any time since the end of World War II;

• The key to maintaining OCTS so that it operates to the best advantage of Hong Kong through until 2047 and beyond, is building and sustaining a level of fundamental trust between Hong Kong and Beijing;

• The Judiciary in the HKSAR is uniquely placed and has a special responsibility both to maintain the essential principles of the common law and to maintain that trust;

• There have now been too many instances, within the judiciary, of a "carnival of words" unfolding where there is a lack of "focus on the true issues [while] forensic games [are] played with a national law";

• This has led to an increase in mistrust of the HKSAR Judiciary in Beijing;

• This is a central and difficult concern that the judiciary in Hong Kong needs to address.

Note: This is a revised, abbreviated version of a longer review published in July In the Pearls and Irritations journal, at: https://johnmenadue.com/a-review-of-the-dance-of-folly-or-how-theatrics-have-tarnished-the-rule-of-law/.

The author is a visiting professor in the Law Faculty of Hong Kong University.

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