Judicial Discretion and Jurisprudence

Moral questions impact the law at every corner. A rigid separation between morality, law, and discretion is implausible and, as Wacks defines it, “an improbable enterprise.”

[1] In theory and in practice, the judiciary functions as the crux of the common law in Hong Kong. It is therefore in judicial discretion that the perception of law is segregated into two main schools of thought: legal naturalism and positivism. The naturalistic claim that the very essence of law is its morality is contrasted by the positivistic allegation of a moral-free code of law. This essay explores judicial discretion in Hong Kong under each discipline and argues that the naturalistic approach is more coherent and justifiable under three accounts: constitutional checks, constructive interpretation, and moral accountability. In pursuit of a thorough analysis, the definitions of law, morality, and discretion must first be interpreted. I emphasize the term ‘interpretation’ to give light to the complexity in sufficiently defining said terms.

Law, as H.L.A. Hart – the most prominent modern positivist in the twentieth century

[2] – declares, is “a system of… social rules that direct and appraise behavior.”

[3] In my words, law is defined as the social phenomenon that establishes guidelines and restrictions for human behavior. The term “morality” refers to “a code of conduct, given specified conditions, would be put forward by all rational persons.”

[4] As per my opinion then, morality is an unwritten and objective code of conduct that the community generally abides to. Lastly, Westen states that “discretion means… an area within which the discretion-holder has authority to adopt, or not to adopt, whatever rule he deems fit.”

[5] Discretion, in this sense, describes the power of an authority to exercise his/her decision in accordance to rules and laws. It is noted that these definitions are, at best, elementary to the intricacies underlying the colossal concepts of law, morality, and discretion; thus, to narrow the scope, I approach these concepts with a focus within the Hong Kong jurisdiction. The lineage of debates between naturalism and positivism in jurisprudence have extended over centuries. Essentially, naturalism provides that the “act of positing law… can and should be guided by ‘moral’ principles and rules; that those moral norms are a matter of objective reasonableness, not of whim, convention, or mere ‘decision’.”

[6] The judicial process, under a naturalistic approach, present the judges with the duty to ensure moral foundations are met. Dworkin calls it “law as integrity”: It supposes that law’s constraints benefit society not just by providing predictability or procedural fairness, or in some other instrumental way, but by securing a kind of equality among citizens that makes their community more genuine and improve its moral justification for exercising the political power it does.

[7] The modern advocacy of positivism, however, denies moral considerations in exercising discretion; as Hart declares: The rule-making authority must exercise a discretion, and there is no possibility of treating the question raised by the various cases as if there were one uniquely correct answer to be found, as distinct from an answer which is a reasonable compromise between conflicting interests.

[8] Thus, Hart identifies a “rule of recognition”

[9] in its positivistic model to establish that the considerations of judicial discretion are only whether compliance with the legal system’s criteria of valid laws are met. In other words, in exercising positivistic discretion under the rule of recognition, the judiciary decides whether or not the law is valid according to the criteria enacted by legislature or unwritten societal compliance, but not to the extent of moral contemplations. Within context of Hong Kong, I argue that the naturalistic approach is evidenced by its constitutional checks and balances and must be so in the preservation of the common law system. The immediate challenge in exercising discretion post-1997 between Dworkin’s model of “law as integrity”[10] and Hart’s model of “rule of recognition”[11] is embedded in HKSAR v Ma Wai Kwa-n David[12]. The Court of Appeal is vested with decisions in the maintenance of the common law system and the jurisdiction of the Hong Kong courts to question the legality of laws and decisions enacted by the National People’s Congress (NPC). To declare that “regional courts have no jurisdiction to query the validity of any legislation or acts passed by the sovereign”[13], the Court of Appeal signals that judicial discretion exercised the positivistic “rule of recognition” to establish that although unsettling to the libertarian moral values embodied in the rule of law, the only concern is whether the compliance with the criteria of valid laws are met.[14] Under a purely positivistic approach then, no court shall exercise its discretion to safeguard the liberty in the rule of law.

Yet, in Ng Ka Ling v Director of Immigration[15], the learned Chief Justice Li overturns the decision of the Court of Appeal in Ma Wai Kwan David[16], asserting that In exercising their judicial power conferred by the Basic Law, the courts of the Region have a duty to enforce and interpret that Law. They undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid.[17] The constitutional check of the executive branch, the legislative council, and even the National People’s congress was a matter not of positivistic decision, but of a naturalistic discretion to uphold the morality of freedoms in the rule of law. It is with principles of fundamental libertarian rights that the courts exercise its discretion, and thus adopt adherence to a moral code of conduct. Though the subsequent referral to the Standing Committee of the National People’s Congress (NPCSC) under Article 158[18] inevitably undermines the court’s discretion, judges continue to resist the “rule of recognition” to protect the underlying principles of fairness in the moral code of conduct, as recognized by Bokhary PJ’s dissenting opinion in Lau Kong Yung v Director of Immigration[19]: “In Hong Kong where we aspire to be humane as well as orderly, it is plain that the Director would have been duty-bound at least to read the applications to see if they or any one or more of them disclosed a strongand obvious case for a favourable exercise on humanitarian grounds of his discretion.”[20] Essentially, Bokhary PJ acknowledges that there are legal grounds of which the administrative decision-maker issues removal-orders against the respondents; however, he also believes that the decision-maker failed to exercise his discretion according to a moral code of conduct that is essential to the common law system. As observed by Wacks, “the virtues of the common law should not be exaggerated, but few will dispute that its perpetuation is a sine qua non of our liberty.

This is largely because a legal system is essentially a kind of moral system.”[21] Consequently, in the preservation of Hong Kong’s common law system, I argue that the naturalistic approach towards discretion is essential to inhabit the underlying moral principles of liberty. Dworkin outlines another element of naturalism in its “constructive interpretation”[22] by which the concept of law does not adhere the judiciary’s intuition at face value (as Hart claims), but embodies the “great network of political structures and decisions of his community”[23]. Moral principles of an individual judge can be skewed, and thus to discover and apply the morality of the community as a whole, law is interpreted constructively through legislation and precedents. A judge shall then exercise his/her discretion, in the sacrifice of his/her personal moral perception, to adhere to the community’s moral code to enact new precedents and laws.[24] The significance of constructive interpretation in maintaining the Hong Kong common law system is overwhelming. In the event that judge’s personal morals are vested in his/her judgment, individual rights become fragile. Hong Kong courts have long abided to the common law’s tradition of protecting rights[25], and to now shatter these rights in a positivistic approach would be unfathomable. Should the concepts of law, morality, and discretion stand alone as positivism suggests, then in my opinion, the common law will be driven out of Hong Kong. To maintain the common law system as per the intent of Article 8[26], the naturalistic approach of moral accountability in constructive interpretations of the judiciary branch must be practiced. Lastly, the stance of judicial accountability is subjected to two interpretations. Under Hart’s positivistic procedural standard, he declares that justice consists in ‘treating like cases alike’[27]. Therefore, a judge is held accountable in his/her discretion in impartiality of treating cases alike.

Yet, there are situations in which unjust laws may call for judicial discretion on the basis of morality. R M Hare illustrates this in his “two-level structure of moral thinking”: Let us suppose that a judge is asked to justify his sentencing a convicted prisoner. He can answer first at the intuitive level, pointing that the prima facie principles have been observed…. If the laws themselves are questioned, the judge can refer the questioner to the legislature, together with the sound prima facie principle that the judges should not depart from what is laid down by statute… If he is asked “Why these principles? He will have to appeal to critical thinking[28] Within the context of Hong Kong, judges are held accountable to Article 89[29], in which it is stipulated that “a judge… may only be removed for inability to discharge his or her duties, or for misbehavior, by the Chief Executive on the recommendation of a tribunal appointed by the Chief justice of the Court of Final Appeal and consisting of not fewer than three local judges.”[30] The question that arises then is whether or not the judge’s duties held accountable to the basis of morality. I argue that it is in fact so as evidenced by the early resignation of Chief Justice Andrew Li Kwok-nang. In controversy over the Court of Final Appeal’s submission to the NPCSC interpretation in Ng Ka Ling[31], the learned Chief Justice Li was “criticized for his ignorance of the social impact of the court judgment.”[32] According to a local newspaper, Shiu Sin-por, the director of the One Country Two Systems Institute, even suggested that Hong Kong’s court judges should embody the principles of “one country, two system” by considering the “general interest of the society” and the “social consequences of the judgments.”[33] One commentator of a different newspaper even added that: As the judiciary’s chief, Li Kwok-nang cannot escape the responsibility that his judgment on January 29 brought about the central government’s strong attack and thus endangering the foundation of Hong Kong’s judicial independence. As a judge, he has no political responsibility. But as the judiciary’s chief, he should shoulder the political responsibility of his mistake. His resignation could establish a model for the legal elite and successors to maintain judicial independence and to confront the central government’s interference. If he does not resign, his fifteen years of office will have great difficulties.[34] The “surprise resignation”[35] of Chief Justice Li indicates that he was held morally accountable through the voices of the community for his discretion in Ng Ka Ling[36], and in failure to defend the moral code of liberty in the society, it was inevitable that he must resign. That is to a moral consideration under naturalism that Chief Justice Li was held accountable to, and not a positivistic duty to ensure procedural fairness and impartiality. Consequently, it is with confidence that I conclude that law, morality, and discretion are interconnected in Hong Kong under a naturalistic school of thought, and must continue to do so in the preservation of the common law system. In a constitutional quest for the autonomy of Hong Kong, the judiciary strives to exercise its discretion in protecting the principles and policies of “fairness, equality, and justice”[37] in our legal system. As a result, under the evidence found in constitutional checks, constructive interpretation, and moral accountability, the three concepts of law, morality, and discretion cannot and must not stand alone. Works Cited Table of Cases HKSAR v Ma Wai Kwan David [1997] 2 HKC 315 Ng Ka Ling v Director of Immigration [1999] 1 HKC 291 Lau Kong Yung v Director of Immigration [1999] 4 HKC 731 Table of Legislation The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China Secondary Sources R Wacks,Law, Morality, and the Private Domain(Hong Kong: Hong Kong University Press, 2000) M H Kramer, C Grant, B Colburn, and A Hatzistarou, The Legacy of H.L.A.: Legal, Political, and Moral Philosophy (Oxford: Oxford University Press, 2008) H L A Hart, The Concept of Law (2nd Ed., Oxford: Oxford Clarendon Press, 1994) Gert, Bernard, “The Definition of Morality”,The Stanford Encyclopedia of Philosophy(Fall 2012 Edition), Edward N. Zalta(edn), <https://plato.stanford.edu/archives/fall2012/entries/morality-definition/> P Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 Mich. L. Rev. 604, 642 (1983) J M Finnis,Natural Law and Natural Rights (New York: Oxford University Press, 1980) R Dworkin, Law’s Empire (London: Fontana Paperbacks, 1987) Simon Lee, Judging Judges (London: Faber & Faber, 1988) P Wesley-Smith, “Protecting Human Rights in Hong Kong”, Human Rights in Hong Kong (Hong Kong: Oxford University Press, 1992) R M Hare, Moral Thinking Its Levels, Method and Point (Oxford Clarendon Press, 1981) S Shiu-Hing Lo, The Dynamics of Beijing-Hong Kong Relations: A Model for Taiwan? (Hong Kong: Hong Kong University Press, 2008) Ming Pao, 26 May 1999, p. A9, as translated by S Shiu-Hing Lo Wong On-yin, “It is wise for Li Kwok-nang to resign”, Apple Daily, June 28, 1999, D1, as translated by S Shiu-Hing Lo A Wong, “Lawmakers Endorse Geoffrey Ma As Top Judge”, South China Morning Post, 10 June, 2010 < https://www.scmp.com/article/716689/lawmakers-endorse-geoffrey-ma-top-judge> 1

[1] R Wacks,Law, Morality, and the Private Domain(Hong Kong: Hong Kong University Press, 2000), p 1

[2] M H Kramer, C Grant, B Colburn, and A Hatzistarou, The Legacy of H.L.A.: Legal, Political, and Moral Philosophy (Oxford: Oxford University Press, 2008), p xiii

[3] H L A Hart, The Concept of Law (2nd Ed., Oxford: Oxford Clarendon Press, 1994), p xiii.

[4] Gert, Bernard, “The Definition of Morality”,The Stanford Encyclopedia of Philosophy(Fall 2012 Edition), Edward N. Zalta(edn), <https://plato.stanford.edu/archives/fall2012/entries/morality-definition/>.

[5] P Westen, The Meaning of Equality in Law, Science, Math, and Morals: A Reply, 81 Mich. L. Rev. 604, 642 (1983)

[6] J M Finnis,Natural Law and Natural Rights (New York: Oxford University Press, 1980), p 290

[7] R Dworkin, Law’s Empire (London: Fontana Paperbacks, 1987), p 95-96

[8] H L A Hart (n 3), p 210

[9] H L A Hart (n 3), p 200 [10] R Dworkin (n 7), p 95-96 [11] H L A Hart (n 3), p 200 [12] HKSAR v Ma Wai Kwan David [1997] 2 HKC 315 [13] Ibid, 334 [14] R Wacks (n 1), p 7 [15] Ng Ka Ling v Director of Immigration [1999] 1 HKC 291 [16] Ma Wai Kwan David (n 12) [17] Ng Ka Ling (n 15), 322-323 [18] The Basic Law, Art 158 [19] Lau Kong Yung v Director of Immigration [1999] 4 HKC 731 [20] Ibid, 754-755 [21] R Wacks (n 1), p 4 [22] Dworkin (n 7), p 52 [23] Ibid [24] Simon Lee, Judging Judges (London: Faber & Faber, 1988), p 30 [25] P Wesley-Smith, “Protecting Human Rights in Hong Kong”, Human Rights in Hong Kong (Hong Kong: Oxford University Press, 1992) [26] The Basic Law, Art 8 [27] H L A Hart (n 3), p 155-157 [28] R M Hare, Moral Thinking Its Levels, Method and Point (Oxford Clarendon Press, 1981), p 159 [29] The Basic Law, Art 89 [30] Ibid [31] Ng Ka Ling (n 15) [32] S Shiu-Hing Lo, The Dynamics of Beijing-Hong Kong Relations: A Model for Taiwan? (Hong Kong: Hong Kong University Press, 2008), p 85 [33] Ming Pao, 26 May 1999, p. A9, as translated by S Shiu-Hing Lo (n 32) [34] Wong On-yin, “It is wise for Li Kwok-nang to resign”, Apple Daily, June 28, 1999, D1, as translated by S Shiu-Hing Lo (n 32) [35]A Wong, “Lawmakers Endorse Geoffrey Ma As Top Judge”, South China Morning Post, 10 June, 2010 < https://www.scmp.com/article/716689/lawmakers-endorse-geoffrey-ma-top-judge> [36] Ng Ka Ling (n 15) [37] R Wacks (n 1), p 4

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