A constitutional innovation: Never mind Hong Kong’s Basic Law, consider the context
Hong Kong Free Press
Well, I don’t suppose that it has anything to do with me, but we now have a response to the idea that planning to veto the government’s budget was not a crime, but a legitimate constitutional recourse outlined in the Basic Law.
This comes in a China Daily piece by one Richard Cullen, an adjunct professor (part-time – don’t call us, we’ll call you) from the University of Hong Kong’s Faculty of Law.
Cullen concedes that the idea that Articles 50 to 52 of the Basic Law authorise a refusal to pass the budget as a way to secure the resignation of the chief executive is “accurate, as far as it goes.” But, he goes on to say, this ignores the “wider contextual considerations.” It is “methodically literal,” and seeks to establish a “legalistic, rarefied zone” for interpretation of the law.
In my experience “legalistic” is a word used for legal arguments which lead to destinations the user does not like. A “rarefied zone”? The law is often described as an artificial system of reasoning intended for the particular purpose of resolving disputes between citizens and between citizens and the state, in which the pursuit of fairness and justice has to compete with the need for predictability and consistency.
The interpretation of statutes is a suburb of legal reasoning and has its own rules, in which the “wider contextual considerations” do not feature very much.
We must, though, note that Cullen perhaps spends more time writing for the China Daily than he does teaching law, and he appears to have no problem avoiding legalistic formal language in his usual output, which comprises rousing denunciations of American foreign policy.
His exploration of the context leads to some strange places. Lawyers in the common law system have, he says, often ignored context, with sad results. We then explore the history of labour and factory legislation in the US and UK.
This was often, Cullen says, and I agree, drafted with scant realistic consideration of the context. Legislators tended to treat labour relations as a voluntary contract between two equal parties, and ignored the reality that the employer’s need for another worker was usually less pressing than the applicant’s need for a job. Bad law and injustice resulted.
But this does not help Cullen’s case with regard to interpretation of the Basic Law at all. The ignorance of context was in the original labour legislation. Judges interpreted it as it came to them. Historically judges have often lamented that the effect of the legislation they were enforcing was unjust in some, or even most cases. But changing it was a matter for parliament, not something to be done in court in the name of “context”.
Cullen observes, correctly, that the Basic Law does not authorise the full “Laam chau” programme of mutual destruction, and also – less relevantly – that Yash Ghai, writing in 1999, thought the budget veto procedure might be used to resolve disputes over taxation or public spending, not to seek major changes in government policy.
This last prediction betrays a curious lack of imagination. After all, the budget veto procedure would be a major step into unknowable territory, involving serious hazards for both sides. Legislators first have to risk their seats; the risks to the chief executive come later but are as serious.
The spectacle of a legislature and executive at loggerheads would be unbecoming. This is the nuclear option of political conflict. It would be surprising if it were used for anything other than major disputes over policy.
Cullen thinks that the procedure was not intended to allow a “very powerful indirect means of coercing radical policy changes.” What else could it be for?
We then move on to the context in detail, and here I have to say that I begin to wonder if Cullen is a person from whom I would wish to buy a used car. Because he says, “the LegCo was rendered inoperable because of massive, riot-driven vandalism for about three months from July 1, 2019”. And that is not true.
In the first place, a legislature cannot be rendered “inoperable” just because its usual meeting place is closed, for whatever reason. A council meeting is not like a heart transplant or a Catholic wedding, which can only take place in a building designed and dedicated for the purpose.
In 1789, the French National Assembly famously responded to a Royal eviction by meeting in a tennis court. In 1941, the British House of Commons had its usual home vandalised by the Luftwaffe. Politics continued in alternative venues until the building had been restored, which took until 1950.
In the second place, the Legislative Council was not rendered inoperable for three months because it customarily takes a long break in the summer whether its chamber is usable or not. After July 1, the chairman simply cancelled the last meeting of the session and everyone went on holiday.
If Cullen is unreliable on the fiddly detail he is not much better on the big picture. The events of 2019 were an “insurrection”, he says, and adds with approval a quote from Henry Litton dubbing it an “insurgency”. This is a gross abuse of language and also rather insensitive.
Insurrections and insurgencies involve the use of lethal force to overthrow the regime. It is not a happy experience and usually involves the shedding of much blood, most of it innocent. It is the sort of thing now being endured in Sudan and Myanmar. Hijacking the words to describe our street scuffles is an insult to the suffering of people in such places.
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