Could the rule of law block democracy?
Democracy and the rule of law are the two most cherished political ideals in Hong Kong. But a review of the case about a Swire subsidiary's proposal to develop a high-rise residential complex in Mid-Levels will illustrate that these could be conflicting, and not complementary, ideals.
The case involves unresolved legal issues, so discussion about it requires clarification about the limits of freedom of speech and judicial independence. People are generally inhibited from commenting on matters sub judice, lest they be committed for contempt of court. That inhibition is unwarranted in civil matters.
For any civil dispute not under a gag order, common law holds that 'there is no question of any contempt of court, as this is a civil matter and juries are not and will not be involved, while the likelihood of professional judges being influenced at all is extremely remote because they are trained to put out of their mind matters which are not in evidence in the case', as Britain's Lord Chief Justice, Lord Parker, ruled in a 1960 case.
While this common-law principle laudably upholds the democratic ideal of freedom of speech, it is predicated on common law's self-imposed limits. In cases such as Swire's proposed development - where the court's ruling will have implications for the entire community - the adversarial process accepts only the litigants' evidence for their cause of action.
In the Swire case, the litigants are the developer and the Town Planning Appeal Board. The Town Planning Board - the statutory authority designated by law 'to draft plans with the view to the promotion of the general welfare of the community' - legally represents the community's welfare in planning matters.
When planning restrictions are challenged in court, arguments for community welfare may only refer to evidence contained in planning documents. In case of doubt, common law holds that 'the benefit of the doubt must be given to the landowners', and not to the community whose welfare, in law, has already been accounted for by the planner.
