13 November 2019
Police officers try to clear makeshift barricades on Nathan Road in Mong Kok. Photo: Bloomberg
Police officers try to clear makeshift barricades on Nathan Road in Mong Kok. Photo: Bloomberg

Separation of powers took a beating in Mong Kok scuffles

The Occupy movement has been much bigger than anybody expected.

But the government’s strategy of waiting out the protests has apparently worked well, as more residents and shopkeepers get fed up with road closures and the loss of business.

These are people who do not share with other Hongkongers the common aspiration to a free vote — let alone are prepared to make any sacrifices for it — so they speak with the same voice as the authorities in condemning the movement.

The Court of First Instance issued injunctions requiring the removal of road blockades in Mong Kok, but the police should not have been needed, unless in an emergency, to maintain order and assist bailiffs.

Initially, the process was smooth and peaceful last week, and protesters there were generally cooperative. But that turned out to be just the calm before the storm.

The Mong Kok protest site descended into disarray when bunches of unidentified people, seemingly escorted by the police, rushed there and forcibly dismantled tents and other obstructions.

Tensions ran high as more than 1,000 police officers stood by. They later turned the execution of the court order into a full-scale, police-led clearance of the protest zone.

Chief Executive Leung Chun-ying embarked on his three-day visit to South Korea the day bailiffs began removing obstructions in Mong Kok’s Argyle Street.

Just as the Occupy movement entered another sensitive stage — when the government was preparing to clear sites, and scuffles with police were sure to erupt — how could Leung be in the mood for a trip out of town?

At the same time, Chief Secretary Carrie Lam Cheng Yuet-ngor was in Beijing with several other principal officials. She told the media her trip to the capital had nothing to do with Occupy.

At the height of the public uproar over the government’s use of tear gas to disperse students in Admiralty two months ago, Lam hinted that she was an outsider to the decision-making process, but she should not forget that she still heads the constitutional reform task force for the 2017 election for chief executive.

Before heading for Seoul, Leung urged protesters not to obstruct the bailiffs. It seemed that his remarks were directed at those “purposefully” making excuses not to leave.

But the truth was that there were only a dozen occupiers in Mong Kok that morning, and many of them would leave of their own accord.

What was notable was the disproportionate police presence: thousands of policemen were being deployed to lay siege to peaceful protesters.

Ordinary people are law-abiding, but they may not possess much legal knowledge. To them, implementing injunctions is equivalent to clearing out protesters, and it makes little difference whether the job is done by bailiffs or the police.

But the devil is in the details.

Hong Kong’s much-vaunted advantage is its rule of law, as embodied in a tripartite system of executive, legislative and judicial powers with checks and balances among them.

This means due process and a clear separation of powers — and these principles must not be compromised.

Yet, in recent years, Beijing’s cadres have been trying to instill in Hongkongers the ideology that the executive authorities and the judiciary should complement each other and coordinate their activities.

Meanwhile, senior local officials are also promoting the concept of “governance/rule by law (依法治港)”.

The government’s handling of Occupy over the past two months is vivid testimony that Hong Kong’s rule of law is in peril: the executive and judicial branches now act in cooperation, and the government can punish any disobedient person in the name of “rule by law”.

The principles and due process that derive from the separation of powers differ substantially from the idea of “rule by law”, which is based on collusion among the three powers.

In the case of Mong Kok, bailiffs removing obstructions were executing court orders, and so the police should not have been treading on their toes.

But some suspect that those who forcibly cleared barriers that day were in fact police officers in plain clothes.

Under the law, there is a world of difference between facilitating the execution of an order from a court and engaging in police operations.

Since there were ambiguities in the injunctions and each side had its own interpretation, some protesters in Mong Kok argued with the bailiffs and plaintiffs.

But Leung indiscriminately labeled them as “obstructing the process”.

The government’s intention to clear the entire protest site in Mong Kok was laid bare last Thursday afternoon when the police didn’t allow people to leave and even arrested lawmaker Leung Kwok-hung, who was there to appeal to the protesters to leave so that the bailiffs could carry out their duties.

Live television broadcasts showed that protesters were violently held down by several police officers before being dragged into police vans.

The government’s ill-conceived plan to crack down hard on the protesters under the guise of assisting bailiffs sets a dangerous precedent.

Now we have more reasons to worry that further cooperation between the government and the judiciary looms large.

We saw the writing on the wall when Secretary for Justice Rimsky Yuen Kwok-keung became a member of the constitutional reform task force.

How can you expect him to be fair and unbiased when deciding whether or not to prosecute an Occupy leader?

Protesters’ acts deliberately contravening the law may not deal a crippling blow to the rule of law, but the government’s conspiracy to hijack the judiciary to clear the site undoubtedly will.

This article appeared in the Hong Kong Economic Journal on Nov. 27.

Translation by Frank Chen

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A demonstrator holds his hands up as police officers in riot gear dismantle a barricade in Mong Kok. Photo: Bloomberg

A famous Hong Kong writer; founder of the Hong Kong Economic Journal