The legacy of liberty



The Australian, 9 October 2015


There was pessimistic mood at the bar of the Hong Kong Foreign Correspondents’ Club on the night of the handover to China.

Few of us imagined the plan for “one country, two systems” would survive for 18 months, let alone 18 years.

Yet the prosecution of former Hong Kong chief executive Donald Tsang this week inspires an uplifting thought. In defiance of our cynical, San Miguel-fuelled expectations, the common law system is thriving in this fortunate enclave within China.

The seed of liberty sown with the sealing of the Magna Carta eight centuries ago continues to flourish in the former British colony, and even The China Daily is celebrating.

The Hong Kong edition of the government-controlled newspaper editorialised on Tuesday that the official misconduct charges laid against Tsang should silence China’s critics.

“Nobody is above the law,” the Daily thundered. “The rule of law … is the cornerstone of democracy and no matter how one interprets it, the law must be respected.”

Some might baulk at the invocation of democracy in a region whose chief executive is appointed by the Chinese People’s Government, but it is hard find evidence that the rule of law is under threat.

Some 99 per cent of cases are decided under common law, without reference to the Basic Law, the constitutional document that took effect with the handover in July, 1997.

China’s Basic Law can overrule the Hong Kong courts on matters concerning defence and external affairs but it is rarely invoked, and never in the sweeping manner with which the Commonwealth repudiates the states using section 109 of the Australian Constitution.

The bench of Hong Kong’s Court of Final Appeal customarily includes non-permanent judges from other common law jurisdictions.

The court’s supremacy was given symbolic stature last month when it moved from its temporary home in the old French Mission Building to the granite, neoclassical building in the heart of Central that was once home to the Legislative Council.

I happily admit I was wrong with my earnest think-pieces before the handover predicting the imminent collapse of civic order the moment HMS Britannia sailed out of the harbour with governor Chris Patten on board at midnight on June 30, 1997.

Hong Kong remains a bastion of English liberty. Edmund Burke would be proud of it. John Stuart Mill would be jumping for joy.

The Magna Carta’s anniversary may have been barely celebrated in Hong Kong, but its spirit continues to be an effective shield against tyranny in this happy corner of the People’s Republic of China.

Yet if my thesis is correct, how do we explain the widespread anxiety about the heavy hand of the PRC that prompted tens of thousands of polite, educated, middle-class people to join the Occupy Hong Kong movement last year, waving umbrellas in the streets? The wounds to the social fabric are unmistakeable. A discussion with just about anybody in Hong Kong these days inevitably leads to a reflection on last year’s protests and the tensions they signalled.

The conventional wisdom is that the change of leadership in Beijing in 2012 marked the beginning of a more assertive China, yet it is hard to elicit concrete evidence of its impact on Hong Kong.

What is apparent, however, is a sentiment rarely expressed 20 years ago: a proud sense of local identity. In defiance of Beijing’s jingoistic claims of national unity and territorial integrity, Hong Kong people cherish a culture that is different to that in other parts of China.

Hong Kong is not only different to mainland China, but different to the former Portuguese territory of Macau, and different to Taiwan, for all its democracy and relative freedom.

The source of that difference is most clearly on display in the judicial system. Great Britain’s greatest legacy — liberty cemented in the rule of law — has proved resistant to tyranny.

The message of the Magna Carta — that Britons preferred their kings to be rulers rather than tyrants — holds good in Hong Kong.

Hong Kong should properly be included in that happy group of territories we awkwardly call the Anglosphere, bound by a common language and the virtues of common law.

Why does China put up with it? The conventional view, cynically expressed, is that today’s Hong Kong is Beijing’s message to Taiwan, saying don’t be anxious about reunification; everything will be fine.

The truth, I believe, is more prosaic. China lives with Hong Kong’s system — and perhaps is beginning to love it — because it actually works. Common law, and the security of contracts it bestows, produces conditions in which enterprise can flourish.

It encourages a permission-less culture in which anything not expressly forbidden by law is allowed. Egalitarianism — parity of opportunity — is embedded in common law societies.

Bribery and corruption is abhorrent. Hong Kong’s Independent Commission Against Corruption, which initiated the case against Tsang, designed the template for similar bodies in Australia and elsewhere.

The defiant display of the Union Jack by some in the Occupy Hong Kong movement last year was not, as some suggest, a yearning for the colonial past.

It was a celebration of the values and institutions that are Britain’s lasting legacy — the foundation upon which Hong Kong will continue to prosper.

Nick Cater is executive director of the Menzies Research Centre. His visit to Hong Kong was hosted by the Hong Kong Government. Sir Jack Cater, the founding commissioner of ICAC, is Cater’s first cousin once removed.