Freedom's Shield

It is extraordinary to think that a document signed 800 years ago by an English king still resonates around the world. I am referring of course to the Magna Carta which was recently on display in Hong Kong as part of a global tour to celebrate the anniversary of its promulgation.

The signing took place in June 1215 on the banks of the river Thames near the village of Runnymede. The very same spot is today the site of the UK’s eternal flame in honour of assassinated American president John F Kennedy.

The British Consul General here, Caroline Wilson, has already written eloquently in these pages about the implications of the "Big Charter" for human rights. The principles which developed from the original document – the ideas of liberty, justice and freedom of the individual – went on to influence the American Bill of Rights more than 500 years later, and the Universal Declaration of Human Rights of 1948.

The concept that the monarch’s authority was not absolute – that he needed to consult with the people he ruled and earn their support – was truly revolutionary for its time. It is directly relevant to us in Hong Kong in the 21st century because the same spirit is encapsulated in our very own Basic Law.

One of the causes of discontent among the English barons which led them to confront King John was the high tax on shields (known as "scutum"). From this came the idea – albeit many years later -- that taxes could only be imposed with the approval of Parliament which also should have the right to approve expenditure proposals (logically, because it is the spending that gives rise to the need for taxes in the first place).

That is why the Finance Committee of our Legislative Council today vets all spending items, and government projects and policies can only go ahead after it has given approval. And only LegCo can approve the introduction of new taxes or increases in existing ones.

An interesting historical quirk concerns the promise by the barons as part of the original deal to pay for the marriage of the king’s eldest daughter "once". Because of that single word from a document in the 13th century, when Princess Anne married for a second time in 1992, to Timothy Laurence, the Queen had to pay from her own pocket. British taxpayers had paid for the first wedding, to Mark Phillips, in 1973. So the British Monarch is subject to the rule of law just like her countrymen.

Locally, we have recently had a brush with the concept of rule of law and its application to our equivalent of the monarch, the chief executive. More than ten years ago it was suggested in the Legislative Council that the position should be made subject to the Prevention of Bribery Ordinance. Amendments were subsequently made to make the chief executive subject to some sections but he remains excluded from others. Three years ago, the former chief justice Andrew Li chaired a group which recommended the necessary changes be made to the law to apply all sections to the chief executive. Earlier this month, some members of Legco moved a motion seeking prompt implementation of that recommendation, but the motion was voted down after the chief secretary argued that there were important constitutional implications and it didn’t do to rush these things.

I cannot be the only person in Hong Kong to struggle with the logic of this argument. First, the idea of taking action after mulling something for three years does not constitute undue haste; and secondly, the chief executive is already subject to all the other laws of Hong Kong including all the other sections of the Prevention of Bribery Ordinance.

The reason we can be certain of this is because the current chief justice has come out recently to state publically on the record that no-one in Hong Kong is above the law and it applies equally to the chief executive. The reason Geoffrey Ma had to make this rather blunt statement is because of the claim from the head of the central government’s liaison office, Zhang Xiaoming, that the chief executive had a "transcendent" status which put him above everything else including by implication the Judiciary.

Sorry, Mr Zhang, that ship has sailed. It cast off 800 years ago.