Date
29 March 2017
Faced with pressure from Beijing, Secretary for Justice Rimsky Yuen and his lawyers are trying to pass the buck to the returning officers. Photo: HKEJ
Faced with pressure from Beijing, Secretary for Justice Rimsky Yuen and his lawyers are trying to pass the buck to the returning officers. Photo: HKEJ

Democracy and rule of law: One won’t work without the other

There is growing consensus in the legal sector that the decision of the Electoral Affairs Commission (EAC) to disqualify several pro-independence candidates is unconstitutional and its legal grounds absurd and flimsy.

The interesting question is, why did Secretary for Justice Rimsky Yuen and his lawyers, with all their expertise in the law, provide returning officers with legal advice on a matter they knew was unconstitutional and could not stand up to basic scrutiny by the courts?

Apparently, Beijing pressured the DOJ into removing all pro-independence candidates from contention in the Sept. 4 Legislative Council elections.

And knowing that there is nothing in the statutes that disqualifies anyone from running for public office on the basis of political convictions, the DOJ had to make up some excuses and pass the buck to the returning officers (civil servants who oversee the election process).

On the other hand, the DOJ was also aware that those who had been disqualified in this manner would challenge the decision in court,

So why not leave things to the courts to decide in the first place?

But it would be naive to expect the courts to be impenetrable to Beijing’s influence.

After all, judges are only human and human beings have weaknesses.

They can collapse under pressure from Beijing just like the French Maginot line which was thought to be impregnable until Germans saw a way around it in the Franco-German war in the 1930s.

In fact, our court system constitutes just a small part of the rule of law, which requires society to defend it.

The notion that we can rely on our judges to defend our judicial independence and rule of law while we watch from the sidelines is ludicrous.

The EAC saga shows that democracy and rule of law are inter-dependent because one can’t be truly enforced without the other.

There is no guarantee that rule of law will prevail if the people can’t choose their own leaders who will govern with a clear mandate.

This article appeared in the Hong Kong Economic Journal on Aug. 15

Translation by Alan Lee with additional reporting

[Chinese version 中文版]

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RA

Associate Professor of Law at the University of Hong Kong

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