Hong Kong’s judiciary has confronted a growing challenge in recent times to uphold the rule of law and defend the city’s core values such as fairness and transparency. The task facing the judges was rendered difficult as the government sought to use the courts to help resolve political matters and implement unpopular policies.
Last year, the entire judiciary system, including judges, barristers and lawyers, were confused by a white paper issued by the Chinese government on the implementation of “one country, two systems”. In the controversial document, Beijing said the judiciary forms part of the administration, and urged Hong Kong courts to keep national interests in mind before handing down judgments.
More recently, local government officials, faced with a civil disobedience movement by pro-democracy activists, have constantly complained that the rule of law was facing a severe threat in the city.
Not surprisingly, the events have led to a fierce debate about the rule of law and what it means for different sections of the society.
Now, some legal professionals have questioned the government’s conduct, arguing that it has put forth to the public a misleading interpretation of the rule of law.
Paul Shieh Wing-tai, outgoing chairman of the Hong Kong Bar Association, said on Monday that the government had tended to emphasize the ‘obey the law’ aspect more than anything else, offering a skewed interpretation of what constitutes the rule of law.
He criticized the administration for continually stressing that it has been acting “according to the law”. The explanation is not only improper, it also tends to lead the public to misunderstand the true meaning of the rule of law, Shieh said.
The spirit of the rule of law lies not only in doing things according to the law but also in respecting individuals’ rights and liberty, Shieh said at the ceremonial opening of Legal Year 2015.
Speaking at the same event, Chief Justice Geoffrey Ma, meanwhile, indirectly criticized the government for misleading statements on the impact on rule of law due to the Occupy campaign.
“Overwhelmingly most people in Hong Kong respect the rule of law. They respected the rule of law before the Occupy movement and they respect the rule of law after the Occupy movement,” Ma said.
The rule of law and all that it represents must be respected by all, regardless of whatever beliefs or motives one may have, Ma said, suggesting that the principle applies to the government as well the public.
But Secretary for Justice Rimsky Yuen, who also spoke at the event, insisted that the Occupy movement involved what he called “blatant” challenges to the rule of law.
There is no doubt that the debate about rule of law will only become more intense in the near term, given the different perceptions among various stakeholders in Hong Kong.
Overall, one cannot dispute the fact that most Hong Kong people believe in the rule of law. That said, the abuse of the rule of law by the administration poses a risk to the credibility of the legal sector.
In this respect, one can look at the arrest of the key participants of the Occupy campaign. The police kicked off “arrest by appointment” of prominent figures, even though there was no concrete evidence to slap charges.
Former legislative councilor Tanya Chan, for instance, presented herself to the police station, where she was detained in connection with illegal assembly. However, when she refused to seek bail, the police released her, suggesting that authorities really had no case.
The “arrest by appointment” has sparked concern that people may face legal proceedings even though all they did was just sit in the protest zones and read newspapers.
Rule of law has laid the foundation for the success of Hong Kong over the years. Another important factor is freedom of the press.
The attacks on media tycoon and democracy advocate Jimmy Lai — the latest incidents took place in the early hours of Monday when miscreants threw firebombs at the premises of Lai’s house and Next Media headquarters — are a cause for concern among all right-thinking people.
Hong Kong has followed international law on freedom of expression, with a free press incorporated into the city’s Basic Law. So the government has an obligation under domestic, as well as under international law, to protect such rights. It is the government’s duty to ensure the safety of journalists and media outlets.
The administration has stressed the importance of “obey the law” as a core concept of rule of law, as pointed out by Bar Association chief Shieh, but rule of law is not limited to just that. It also involves protection of individual rights and freedom of expression.
The message is clear. Now, the question arises: will the government face up to the truth?
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