Should respect for the legal system, the constitution, or even the rule of law be absolute? I believe most Hongkongers would ordinarily say ‘yes’, though I would like to argue otherwise. A constitution and the rule of law would indeed both feature in my personal Utopia, but in Hong Kong’s current situation, it is unreasonable to expect ordinary citizens to treat the legal system with absolute respect – at least without radical changes.
Earlier this week, Chief Justice Geoffrey Ma and Secretary for Justice Teresa Cheng both gave speeches on the importance of the rule of law, to which most people in Hong Kong had clung tightly as it provided the city’s inhabitants with a sense of security, separating our system from that of Mainland China.
The rule of law, in the simplest layperson’s terms, means that no one is above the law and everyone must be treated equally before it; moreover, once a court decision has been made, it must be accepted by both sides of any litigation. The rule of law provides and sustains a social contract which guarantees the protection of certain rights while maintaining a level of social order.
In Hong Kong, unfortunately, this social contract has been broken by those in power. Seven months after the Hong Kong Police first carried out physical attacks on peaceful protestors in a legal protest, no police officers have faced any legal consequences (or even remained suspended), including those who shot students at close range with no prior warning.
When those who are supposed to carry out the law live above the law, it sends a clear message that the social contract entailing the rule of law has been made void; Hongkongers are beginning to refuse to uphold their end of the contract. Civil disobedience and non-cooperation are increasingly seen as the basic strategies of Hong Kong’s struggle for freedom.
The police are here, in theory, to protect us and remove anyone threatening the safety of the society. But when they become the perpetrators, who is there to protect us from the police themselves?
How can officers be brought in front of a judge when there is nobody to arrest them? And if a citizen’s arrest was performed on offending officers (if by some miracle we were not arrested and/or attacked by other officers in the process), who should we hand the law-breaking officers to?
The police’s publicly violent acts are constantly defended and denied by Commissioner of Police P.K. Tang and Chief Executive Carrie Lam. And in view of Lam’s refusal to have the police investigated by an independent body, some Hongkongers assaulted by officers have given up reporting illegal police activities to the authorities altogether
With the Complaints Against Police Office (CAPO) being run by the police itself, and the Independent Police Complaints Council (which monitors CAPO) staffed entirely by direct appointees of the Chief Executive herself, can you blame Hongkongers for losing faith in the legal system?
“[A]ttacks are made against the integrity and impartiality of the courts, or against the soundness of the legal system”, said Hong Kong’s most senior judge Geoffrey Ma on Monday, apparently referring to public condemnation of recent harsh sentencing of protesters, and courts’ refusal to grant bail to more than 90 demonstrators.
Hongkongers are indeed beginning to question the legal system and even the rule of law – a new development among citizens who were proud to be known for their rule-abiding nature and their respect for authority. But it is becoming evident to most that something is very wrong with our justice system.
Protestors are convicted for doing nothing immoral (like carrying a laser pointer in a backpack without even using it), and some seem to receive disproportionately heavy sentences, while many are denied bail for extended periods. On the other hand, the knife-swinging pro-China attackers of unarmed “yellow-ribbon” protestors, or police officers committing illegal acts on live TV, escape prosecution.
Either judges are in fact not as impartial as Ma suggests, and law-enforcers are arbitrarily enforcing the law only when it suits them (a human problem), or the legal system has failed to uphold justice (a systematic problem) – or perhaps both.
In any case, it has become apparent that our justice system operates in a way in which the powerless are punished for acts which are either not immoral or completely trivial (like a 12-year-old painting slogans on a police station), while those in power and those favoured by them face no consequences before the law for their serious crimes.
So why would Hongkongers respect a legal system which often seems to have no respect for them?
Most laypeople do not have an in-depth understanding of all the countless laws which set the boundaries for their lives in this society. Despite Teresa Cheng’s reminder that “(o)ur legislation is in plain language and accessible at the HKeL website”, it is unrealistic and unreasonable to expect each ordinary person to have read all of it. Most people act largely on their sense of morality in their everyday lives, rather than their knowledge of the law.
Indeed, legislation which overlaps both moral and legislated law (like the criminalisation of murder or sexual assault) is respected by the majority of the population. On the other hand, laws on matters which are not generally considered as definitely immoral by the public, like a failure to wear a seat-belt or declare one’s taxes, are more often broken.
I’m not suggesting that we should legislate morality, but when some areas of the law so clearly depart from the common people’s sense of justice, it is not difficult to understand why some have become cynical about the legitimacy of our laws.
And in the face of this huge discrepancy, what will people abide by? Their own sense of justice which is almost innate, or the legislated law which is something they learn as rules set by those who govern them?
After all, what are laws? They are not the sacred and unchangeable things that the system would like us to believe. They are merely rules made by human beings – and in Hong Kong’s case, not even human beings who have any legitimate mandate to speak of, but rather a legislating body which has never been fully elected. The people of Hong Kong are subjected to rules they have never been allowed to participate in making.
In the last year, Hongkongers have seen the attempted introduction of the extradition law against their will. In protesting against this unpopular law, students, nurses, pilots and people from all walks of life have faced up to ten years of imprisonment for “rioting”, defined vaguely in Hong Kong law as the unlawful assembly of three or more people, where any person “commits a breach of the peace”.
In addition, our government bypassed even the undemocratic legislative council to implement the anti-mask law. All of this has only made people lose trust in the legal system.
The rule of law has instrumental value when it protects law-abiding citizens from being harmed by arbitrary and often self-interested decisions from a small group of people in power. But for most of us, it does not trump the intrinsic value attributed to things such as human lives, freedom and morality.
Therefore, its value declines if laws are passed or enforced in an unjust way, or if the laws themselves are in fact detrimental to the public interest.
In Hong Kong, the undemocratic unelected government handpicked by Beijing has essentially a monopoly on legislation. They can legislate for anything that suits them while legislating against anything that does not. The law, and the rule of law, has become a vehicle for their authoritarian rule.
I am not arguing against the existence of a constitution or the rule of law. On the contrary, I advocate drastic changes which must be made to the legal system in order to restore faith in the rule of law and give legitimacy to our constitution.
Police violence must be stopped immediately by conducting an independent investigation into their openly illegal activities and bringing all officers found to have committed crimes to justice. We might just have to build more prisons.
Additionally, the Department of Justice must take the advice of Philip Dykes – chairman of the Hong Kong Bar Association – who reminds us that the Department’s very own Prosecution Code says the public interest should be considered when making a decision to prosecute, and that not every protestor needs to be taken to court even if there is enough evidence to secure a conviction.
Lastly and most importantly, the illegitimate government of Hong Kong must return full power to the people. Only in a truly democratic society in which all can participate in the making of legislation and the constitution will the justice system command full respect, and laws genuinely reflect the moral values of the community.
When the rule of law has been broken by those in power, those who are the law, the burden is on them to take measures to fix it. This is not the duty of powerless citizens who have become prey to law-enforcers. At this point, justice is the only thing Hongkongers will accept. Sorry, Carrie Lam, but the HK#10 billion hush money you’re throwing us is just not enough.