HONG KONG - Henry Litton, a retired judge of Hong Kong’s Court of Final Appeal, said the city’s judiciary needs deep soul-searching for the city’s courts have helped create the social environment leading to the mayhem wrought on the streets over the past year. 

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In an opinion piece published in local English daily South China Morning Post on Thursday, Litton said local courts have, in many cases, subordinated the common good to the assertions of personal right, which gives a sense of personal sovereignty to those who have taken to the streets in violent protest. 

Laws which protect the majority can be trashed with impunity because personal agendas are supreme.

Henry Litton, tired judge of Court of Final Appeal

“Laws which protect the majority can be trashed with impunity because personal agendas are supreme.”

As one of the most breathtaking examples, Litton cited the court case in November 2019 concerning face-covering. Two High Court judges ruled the Emergency Regulations Ordinance, invoked to introduce the anti-mask law, was incompatible with the new “constitutional order” established after June 1997 for Hong Kong.

“This shows total insensitivity to the policy of one country, two systems,” the veteran judge said. 

He criticized the judges adjudicating the case for “elevating themselves to be on a par with the National People’s Congress, deciding what the constitutional order for Hong Kong should be, thus empowering themselves to strike down an essential piece of primary legislation”.

The final power of interpretation lies not with the Hong Kong courts but with Beijing, he pointed out.

But the courts, Litton noted, have allowed lawyers to “play forensic games”, using articles in the Basic Law as “weapons to strike at government institutions”.

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And every time the High Court judges on the frontline of judicial review cases purport to apply the Basic Law, the act potentially makes a dent in Hong Kong’s high degree of autonomy, Litton said. 

He took note of the startling rise of over 34 times in the number of judicial review applications in 2019 since 1997. According to Litton, there were 3,889 applications for judicial review last year, up from 112 in 1997.

“Does this alone not suggest that the process has been abused?” he questioned. 

Litton also criticized Hong Kong lawyers, especially the Hong Kong Bar Association, for having “an alarming blindness” to realities on the ground. The repeated statements by the association come with “an unspoken agenda”, in Litton’s opinion, which is that a “high degree of autonomy” means that the central government has no sovereign powers over Hong Kong.

Worst of all, the courts in the city have played along with their agenda and allowed counsel to “turn the Basic Law on its head: instead of it being the guarantee of Hong Kong’s stability and prosperity, it has been used to chisel away the edifices of law and order”, he wrote.

He asked whether one can honestly say the common law system in Hong Kong, once a robust and effective common law system in 1997, is “fit for purpose”. 

He advised the judiciary to adopt a shift in mindset as it needs radical cultural change to “render the system fit for purpose again” and to “re-energize the common law and make it relevant to Hong Kong’s circumstances”. 

“What is plain is that Beijing has not deviated from the course set for Hong Kong. The ‘one country, two systems’ policy is intact. And the Basic Law gives substance to that policy,” Litton said.