One Love, Two Hearts

The outcome of HKSAR vs. Ng Kung Siu ("HKSAR")(*1) is hardly surprising. Who would figure that the "one country, two system" Hong Kong ("HK") highest court, the Court of Final Appeal ("COFA"), would come out any differently in a case where freedom of expression is pitted against restriction on flag desecration? If you ask me, HKSAR is just another example of judges' cherry picking case law. And even worse, cherry picking some cases(*2) despite them "coming out the other way."(*3) Crazy.

Equally crazy is trying to understand the case in the context of HK. As was noted, "the Court cited no English precedents from HK's colonial past and still less any Chinese principles from its uncertain present."(*4) On the other hand, the cites of the COFA majority and concurring opinions globetrotted and raided not just the Supreme Court of the United States ("SCOTUS"), but also the Inter-American Court of Human Rights, Italy's Supreme Court, and Germany's Federal Constitutional Court to aid in interpreting People's Republic of China law, HK's Basic Law, International Covenant of Civil and Political Rights, public order (ordre public), and more. The thing that boggles my mind is, yeah, that is fine for maybe the highest court, even the intermediate appellate court too, but how the heck would a trial level court incorporate such broadness in its adjudication? I do not think the HK Court of First Instance would ever be expected to do that type of analysis. And wow. I am imagining including a section titled "Other overseas nations" that cites Mexican and Egyptian cases in the brief I am currently working on for the Federal Litigation Clinic. Or more precisely, I am trying not to imagine the inclusion because it would certainly involve bedlam and my expulsion from law school.

I do not mean to be tongue in cheek about the briefing, rather I meant to be mindful of the practical application for the courts. The docket is full enough as is, and the judges take long enough as is in their deliberation. Increasing the complexity of cases present real and daunting issues. In one case I have,(*5) the federal district judge took a better part of a year to decide on a motion, and that's just from briefs citing chiefly 2nd Circuit decisions. Not to knock the intelligence or sophistication of our judges, it is not merely the number of cases but probably also the intricacy of the issues that slows our court system.

Returning to HKSAR, and with a little help from Google, the sitting justices were:

1. Chief Justice Andrew Li Kwok-nang born in HK of Chinese descent born in 1948;
2. Justice Syed Kemal Shah Bokhary born in HK of Pakistani descent in 1947;
3. Justice Henry Litton born in HK of mixed descent(*7) in 1934;
4. Justice Charles Ching born in HK of Chinese descent in 1935; and
5. Justice Anthony Mason born in Australia of presumably Aussie descent in 1925.

That was the first thing I checked after finish the HKSAR decision: who was on it. Firstly, to see the diversity: seems like a nice mix of Chinese, White, and Pakistani. I wonder how long it will be before a Hispanic or Asian gets appointed to the SCOTUS. Nice mix for the COFA until I double-checked for women justices, zero.(*7) A partial point for the SCOTUS then.(*8)

Secondly, about the resistance to including international and comparative law as authority(*9) in the USA judiciary: why stop at questioning the national origin of the text? Why not call into question the national origin of the author too? If German case law is no good, a circuit court case decided by a judge, naturalized but of German birth, should be equally suspect. I know Americans love their parochialism, but foreign-ness does not equal faulty analysis. Judicial decision-making is serious business; everything that might help should help.(*10)



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*1 - 2 HKC 10 (1999) (where local ordinance criminalizing flag burning was upheld as constitutional).
*2 - Texas v. Johnson, 491 US 397 (1988), and United States v. Eichman, 496 US 310 (1989) (SCOTUS striking down state and federal statutes, respectively, that criminalized flag burning as unconstitutional restriction on freedom of expression).
*3 - Martin S. Flaherty, Aim Globally, 17 Constitutional Commentary 205 (2000).
*4 - Id. (referring to the lower court's decision that local ordinance was unconstitutional).
*5 - Again, for the Federal Litigation Clinic.
*6 - From pictures, certainly part White (Google failed me in providing more information).
*7 - Out of 21 Justices!
*8 - Currently one women, New Yorker Justice Ruth B. Ginsburg, but until recently with a high watermark of two (Texan Justice Sandra D. O'Connor retired and was succeeded by Italian and Jersey boy Judge Samuel Alito).
*9 - No matter the degree of authority: binding, persuasive, or even informal and private assessment authority.
*10 - Which reveals a Jekyll and Hyde stance on judicial globalization. I'll be kind to myself and say: not sure for now.