Protests, Politics and Challenges to Hong Kong’s Rule of Law

Over many years, the rule of law has been regarded, even sanctified, as one of Hong Kong’s core values. This high regard has always seemed justified: In the 2019 World Justice Project Rule of Law Index (released in February of 2019, before the current protests), Hong Kong ranked 16 globally — third in Asia and five places ahead of the United States. And in the public consciousness, Hong Kong stands apart from mainland China because of its strong rule of law. This sentiment therefore sparked a strong response when the rule of law was seemingly threatened by a proposed extradition bill which could deliver suspected Hong Kong citizens to be tried under the mainland Chinese legal system, and an unprecedented mass of protesters marched to resist the “evil” bill (惡法) and demand its withdrawal.

As we now enter the eighth month of protests, much has changed. But what do these developments suggest about the rule of law? Even though Hong Kongers, regardless of political affiliation, uniformly believe that the rule of law is being challenged, pro-government and anti-government camps conceive “rule of law” vastly differently, and the schism between conceptions has resulted in disparate stances towards the protests.

From the government’s perspective, lawbreaking protesters are disrupting Hong Kong’s rule of law. As recent trends of 私了 and 裝修 (euphemisms for violence targeting pro-government individuals and firms) have injured passers-by and destroyed restaurants, malls, and banks, government officials have denounced lawbreakers with the rhetoric of rule of law. Carrie Lam, the Chief Executive of Hong Kong, reasoned that “nothing is more important than the rule of law in Hong Kong,” which is being undermined by lawless behavior, while the central government and its state-owned press have also followed the same rhetoric, urging Hong Kong citizens to support the goals of halting violence, restoring order, and protecting the rule of law.

On the other hand, despite being leaderless movement, anti-government protesters agree that the government is undermining the city’s rule of law. Pointing to police negligence, instances of alleged brutality, excessive force, dangerous use of weaponry, and lack of identification and accountability, as well as the government’s blanket denial of such accusations as “fabricated, biased and slanderous remarks,” protesters argue that the government is acting above the law.

“Without democracy, how can there be the rule of law?” —  protest slogan

Paul Shieh, the former chairman of the Hong Kong Bar Association, has frequently spoken up on issues of Hong Kong’s Rule of Law. In an interview with the HPR, Shieh quoted Sydney Kentridge’s claim that “it is difficult to visualize a state in which the rule of law exists in the absence of a genuine democracy.” In contrast to the mainland Chinese conception of rule of law which, in Xi Jinping’s words, aims to create an environment where citizens “wish not, cannot and dare not break the law,” Shieh argued that the Western conception is “largely concerned with constraint of governmental power.” And because this constraint is only effective when a government is both bound by the law and held accountable by the people, a society’s rule of law is healthy only when both its legal and political systems fulfill their roles.

In the context of Hong Kong’s current protests, then, Shieh told the HPR that even though Hong Kong has a fully independent judiciary, the judiciary’s ability to check and balance the executive branch by itself is not as robust as one might expect. Admittedly, there have been highly politicized judicial review cases in which courts ruled against the government, such as the High Court ruling that struck down a controversial face-mask ban unilaterally installed by the Chief Executive. But courts are not designed to be political arbiters, because “judges do not decide cases based on the political ideologies of the people combing before them.” As a result, “not every aspect of misuse of government power can be constrained by the courts,” and these matters lie “in the realm of political accountability.” Regarding complaints about misuse of police power, for example, if the executive branch refuses to acknowledge the problem, such that only protesters selectively face prosecution in courts, even “the most independent judiciary cannot do anything” in the face of governmental inaction. Only politics can compel government action, and the maintenance of rule of law — the society’s ability to “guard the guardians” — is thus inseparable from political accountability.

However, in Hong Kong, political accountability in the form of popular elections is limited. Only half of its Legislative Council is elected by the public, and its Chief Executive is elected by a 1,200-member Election Committee. At the same time, attempts at democratic reforms have been highly controversial and fruitless. In 2014, the government proposed a “gradual and orderly” first step towards universal suffrage in accordance with the central government’s framework, which was regarded as a “fake democratic package” and ultimately vetoed by the opposition. As a result, political accountability in Hong Kong is substituted with self-restraint on the part of the Hong Kong government and its mainland Chinese sovereign. 

According to Shieh, this has not prevented the city from maintaining a well-regarded and robust legal system, at least on the surface, and rule of law rankings have provided a source of comfort and pride. But Shieh claimed that “the system is not tested” and the eight months of protests have popped the “bubble” and exposed the systemic problems brought by “the lack of a democratic system of government in Hong Kong” that would have provided political accountability.

In this sense, the protest slogan “Without democracy, how can there be rule of law?” seems justified. Yet, Shieh said, one “is walking a fine line” when expressing doubts about the rule of law, because “rule of law is [partially] a matter of perception [and] if you overly emphasize the gloomy side, people then lose their confidence” in the judiciary. 

But how long can the rule of law endure, especially if it is bound to the political impasse of democratic reforms? Shieh stated that, at the moment, Hong Kong’s rule of law still retains the “vote of confidence from the international legal community,” but we must reflect on whether the system is in decline. To him, “Eternal vigilance is the price of liberty.” 

“Rule of Law is dead, only morality remains.” opinion article from The Stand News

On December 9, protesters hurled petrol bombs towards the Court of Final Appeal and spray painted the slogan “rule of law is dead” on the wall of the High Court. Even though one cannot generalize from these singular events the pervading sentiments of the anti-government camp, it is undeniable that these attacks against courts and judges have become more prominent, especially as more protesters see the rule of law as a tool of political oppression and disparage the judiciary for “cooperating” with the other branches.

This shift to attacking the judiciary and proclaiming that “rule of law is dead” seems shocking and incoherent for a movement that began as a defence of the rule of law against the extradition bill, and it remains a divisive and radical topic even within the anti-government camp. Whereas Shieh, in agreement with other legal practitioners, regards these claims as “groundless accusations” and points to the institutional guarantees for judicial independence, Benny Tai, an associate professor of Law at the University of Hong Kong, claimed that the rule of law, if not dead, is “near-dead,” in an interview with the HPR 

Tai was one of the initiators of Occupy Central, also known as the Umbrella Movement, in 2014, which culminated in a 77-day standstill at major areas of the city. To Tai, the rule of law spans from “the basic elements of having laws to the eventual goal of achieving justice.” Therefore, Tai justified his evaluation that the rule of law in Hong Kong is “near-dead” by pointing towards the massive injustice suffered by protesters and the “near-authoritarian system” that the government has become. The rule of law has degraded to an unjust system of rule by law.

It is easy to claim that laws should serve the purpose of justice, but is Tai correct that Hong Kong has become deeply unjust and “near-authoritarian,” such that its rule of law is “near-dead”? While the anti-government camp can point to instances of police brutality and lack of accountability to forward their case, the government’s supporters argue that violent and lawless protesters themselves have ironically become the true dictators. So if people cannot agree on what justice means, how can the rule of law be maintained or evaluated?

Tai’s answer lies in the civic education process, and he believes that the pro-government camp can be reconciled with, or brought to understand, the conception of justice to which he and other protesters subscribe. He regards his Umbrella Movement and the current protests as such processes: “by exposing the problems of the existing system,” these social movement prompt reflections on “whether the prevailing understanding of justice is proper” and culminate in a “paradigm shift” from the unjust status quo towards a “harmonious order [on] a higher level of justice.”

Yet this answer is complicated by the severe ideological split on the ground. Tai is committed to a narrative of awakening; he believes that the pro-government camp consists of individuals who are either oblivious to the injustice or expedient followers of “whoever is in power.” And according to this narrative, once scenes of police brutality are publicized and a majority of society experiences a change in heart, society will progress towards the opposition’s conception of justice. However, if both sides do not acknowledge the rival conceptions of justice, the “death” or “near-death” of rule of law will not be survived by morality, and what remains is a battle royale of individual conceptions of justice. 

“It’s lawlessness, not rule of law, HK needs to worry about”Alex Lo’s SCMP Column Article

Alluding to the anti-government camp’s claims about the rule of law, Alex Lo, a columnist for the South China Morning Post, told the HPR that “people talk about the rule of law, but that is putting the cart before the horse.” 

It is not that Lo denies the importance of rule of law. Rather, Lo disagrees with the anti-government’s understanding of rule of law. While Shieh and Tai see the need for checks and balances and the pursuit of justice as equally, if not more, important as maintaining law and order, Lo, in line with many in the pro-government camp, argues that “you cannot have the rule of law unless people respect [the law].” In his conception of rule of law, order is not simply another feature of rule of law, but a “prerequisite” for its very existence. And even though Lo made it clear that he is not legally trained, his view is echoed within the legal profession. In a recent radio show, Melissa Pang, the president of the Hong Kong Law Society, stated that “the fundamental concept of rule of law is obedience towards the law,” and without this essential feature, society slips back into a barbaric jungle where “might is right.”

Therefore, in times when “the most disgusting violence [is carried out] against the innocent,” Lo argued that lawlessness, rather than the “abstract idea of rule of law,” should be the primary worry. And until lawlessness gives way to peace and stability, those who theorize about the rule of law and “argue about democratic philosophy” are “ideologues” who “let ideas get into the way of common sense.” Especially when these ideas are being utilized to justify and excuse actual violence committed against the police and the opposing camp, such as claims that only the government can damage the rule of law or that the public should decidedly stand against the police, they should be opposed on practical grounds, even if the theories themselves are defensible. Lawless acts are simply wrong, and the anti-government camp should not hide behind empty ideology when confronted with the excesses of their actions. 

Faced with the current impasse and level of violence, Lo argued that moderation and compromise is the only way out, and that a return to the peaceful state seen before protests began in June is required before both sides can appreciate the common ground between them. Otherwise, without an oppositional leadership that is willing to “stop and talk … violence just takes on its own momentum” and the current trajectory will only lead to “mutually assured destruction” — an outcome that society “cannot afford” risking. Subsequently, Lo finds reason to be optimistic in the Chief Executive’s recent comment on continuing “One Country, Two Systems” beyond its 2047 guarantee, as the additional time can allow discussions about democratic reform, rule of law and accountability without the current state of hostility and lawlessness.

Yet is returning to the status quo a viable way out? In their interviews with the HPR, Shieh pointed out that substantive political reforms must be made to conserve the rule of law and Tai argued that any order that does not tackle injustices head-on will only be “short-term” and “superficial.” More broadly, the opposition’s five demands have followed the same lines — from their perspective, complete universal suffrage will allow for political accountability, while amnesty for arrested protesters and an independent inquiry of the police will address the injustices. As protesters at large have vowed not to settle for anything less and the government proceeds with criminal trials against protesters, the Pandora’s box of conflicts that was opened by the extradition bill does not seem close to being shut.

Note: In order to encompass the wide range of views that exists within Hong Kong society, I have incorporated popular quotes from protesters and other individuals who were not interviewed. These additional quotes may or may not exactly reflect the interviewees’ personal opinions.

Image: Wikipedia Commons

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