Rule of Law in Hong Kong: Is it dead these days?

On 8 March 2020, Benny Tai Yiu-ting, Associate Professor, Department of Law, The University of Hong Kong (HKU), announced on Facebook that "the rule of law is dead". Overnight, there was an outcry. After all, there were many times when Tai could have concluded the rule of law is dead in the past decade, yet he never did so.  

In 2016, the National People's Congress offered its interpretation of the Basic Law for the second time, intervening in Hong Kong's judicial system to disqualify elected Legislative Councillors Sixtus Baggio Leung Chung-hang and Yau Wai-ching. In 2018, when the "co-location of Hong Kong and Mainland clearance procedures" was implemented, part of West Kowloon Terminus of the Express Rail Link was designated under mainland jurisdiction. In early 2019, the media revealed that a Hong Kong resident had been taken away by mainland court officers in the mainland jurisdiction area at West Kowloon Station.

Over the years, the controversies over judiciary independence in Hong Kong have led to an endless debate over whether "the rule of law is dead". Tai making his current statement has been described by some as “finally awakened from his slumber”.

In the past six months or so, less attention has been paid on the change in underlying factors contributing to the death of the rule of law. In the eyes of the many, the rule of law in Hong Kong is no longer solely undermined by the direct intervention of mainland China. It also has to do with Hong Kong's own law enforcement and judicial authorities. In early November last year, petrol bombs were thrown at the Tsuen Wan Magistrates' Court and there were writings on the gates saying "Political prosecution, Downfall of the rule of law, Unchecked police power: Disband the police force without delay". All calling on the people of Hong Kong to pay attention to the problem of "red politics", otherwise the fire in front of the court "will soon spread and consume Hong Kong’s rule of law”. In the recent months’ protests, the graffiti "Justice is Dead" was painted on the gates of the High Court and the Court of Final Appeal. 

In its reply to Stand New’s enquiry, the police indicated that from 9 June 2019 to 19 March 2020, a total of 7,854 people were arrested in protests in various districts, among which 1,300 were charged. In mid-March 2020, two defendants suspected to be involved in a number of explosives discovery cases were injured in detention and hospitalised due to bone fractures. When they presented themselves in court a few days later, the judge did not ask questions about their obvious injuries. In early February, in a trial for disorder in public places and police assault, the defendant complained to the magistrate that he was covered by a plastic bag and beaten up “from head to toe”. The response from Magistrate Debbie Ng Chung Yee was “Why should I know this? I am not in the Independent Police Complaints Commission!” The social movements have resulted in a large number of protesters being sent to court and the trials draw wide attention, much more than ever before. Some in the public are alarmed that the judiciary has strayed from what they think justice should be.  How can this not be the death of the rule of law?

At the Ceremonial Opening of the Legal Year earlier this year, the Chairman of the Hong Kong Bar Association, David Davis, said that the Department of Justice should consider not only sufficient evidence but also public interest when making prosecution decisions. Some cases may not need to be brought to court.  

What is "public interest"? In reality, in the face of major social events, the duties of the judiciary and law enforcement officers are increasingly being tested. Do the courts have the room consider realpolitik in a trial? And should realpolitik be given consideration?

“The death of the rule of law” went from pinpointing a constitutional crisis to an issue which is closer to the average public - problems with procedural and substantive justice. To many people, the rule of law is no longer an academic discussion, it has become a frequent topic in casual conversations. According to a relevant survey conducted by HKU Public Opinion Programme, the ratings of the rule of law in Hong Kong hovered between 6.2 and 7.2 points from 1997 to May 2019, and dropped to a record low of 4.4 in September last year.

The statistics showed plummeting confidence in the rule of law among the Hong Kong public. What does this disappointing "rule of law" really mean? Do people all share the same concept? Has the rule of law in Hong Kong failed to deliver? After all, what is the basis of this discussion?

Your rule of law, not mine.

The rule of law comprises not only structural hardware such as a sound judicial system and protection offered by "equality before the law", but also public perception. Stand News reporters recently conducted street interviews to understand firsthand the views of the general public on the rule of law.

The understandings of the respondents of "rule of law" and "compromised rule of law" were different. Mr Yan, a retiree, thinks that rule of law is to rule by law, that is "the Hong Kong Government rules Hong Kong in accordance with the Basic Law". He believes that the rule of law is much better now than during the British colonial era. Mr Cheng, another retiree, also attaches importance to the "rule by law" part of the rule of law. He spoke of police behaviour at protests in recent years, saying “it is certainly wrong to hit passers-by indiscriminately, but lawful force should be used against protesters who are intentionally destructive”.  He believes it is very important to abide by law. When asked if he thought the police was also law-abiding, he stressed that "it's a power given to them (the police) by law".

Some respondents questioned whether the behaviour of the law enforcers was in accordance with the rule of law. Ryan, a civil servant, said: “Very often the police (prosecuting party) comes to court and suddenly drops the charge. Obviously at the moment of prosecution you (the police) don't know if he (the arrested person) has broken the law but in any case he was arrested“. He believes that there are "black sheep" in the police force who need to be retrained. He does not think the courts are harsh in their rulings against some protesters, arguing that "there is nothing wrong with the law or the courts themselves. It is the frontline law enforcers who are the big problem.”

On the other hand, Ms Tsang believes that the rule of law is "being destroyed incrementally". She is especially alarmed by the recent retirement news of Dr Geoffrey Ma Tao-li (Chief Justice of the Court of Final Appeal). "It comes to light that Carrie Lam can appoint (judges) at will. It comes to light that we have no say over the choice of the judiciary (officers), and the magistrates are also chosen by the executive,” said Ms Tang, who works as a clerk in the service sector. She also expressed concern about the selection of judicial officers and their political background, saying "I would question whether some of the judges who have ‘turned red’ would still defend the spirit of the Basic Law."

Ms Tsang also mentioned the importance of the separation of powers, arguing that "to re-establish the rule of law... It is necessary to start from reforming the structure (of the separation of powers)," noting that "the failing administration affects the judiciary". Mr Wong, a student, also pointed out that in recent years, the court's function has deviated "a bit from the separation of powers" that he understands. He opined that now "the court (ruling) seems to be hindered.”

"Rule of law? I know nothing.”

While conducting the street surveys, many people upon hearing "rule of law", waved us off saying they "know nothing" and did not know how to comment. When asked by the reporter, a cleaning worker laughed saying he "belongs to the lower class" and “it is something of his concern.” The general public also seems to have little knowledge of the actual verdicts of many cases and the reasons for filing these cases. Mr Tong, a retiree, said the Hong Kong judge's ruling was "lenient", but when told that a protester had been sentenced to seven years in prison for throwing mud (Lo Kin Man case), he said, "I am not aware of this case."

Ms Lam, who works in the financial sector, said, "I think it (the law) is not very transparent.  Many of us only have superficial knowledge on this subject.” Many do not know how the law affects them and pointed out that the government these days “seems to lay charge on anyone when it feels like it. It does not need to tell you what it is going to do next... There is completely no need to tell you its rationale." The government should communicate more with the public. She also lamented that Hong Kong is supposed to be a civilised society, but many things "seem to be getting muddled."

In this year's Budget, the government announced that about $450 million will be earmarked for the implementation of relevant programmes to enhance public understanding of the rule of law and its implementation. From the answers given by the respondents above, one can tell the public have different views about the rule of law. Whose view will the government promote at the end?

In our interview, Benny Tai said that declaring the "death of the rule of law" is a strategy to "fight" a public opinion battle against the government’s propaganda. He is using this catch phrase to induce people to reflect on the issue. Such a "death theory" or "zombie theory" naturally stirs up waves of discussions. However, as can be seen from the survey responses above, it seems impossible to engage some members of the public in this discourse. To these people, "rule" is larger than "law".

To the other part of the population, the merit of rule of law is that, relative to "rule of man”, rule of law eliminates tyranny and places humanity in its centre. These people often equate the rule of law with justice. When the judicial system fails to realise the justice in their eyes, they feel that "the rule of law is dead". But how far apart is the rule of law from their justice? If the law fails to deal with the consequences of social movements, does it mean there is no rule of law?

New topic: Diagnosing the rule of law

In addition to the general public, other candidates for interview must also include legal and judicial professionals. However it is never easy to invite legal professionals to comment on the rule of law. Under the premise of judicial independence, there has always been an unwritten rule for legal professionals not to criticise court decisions in public, not to mention the fact that the remarks made by some members of the public against individual judges are almost a forbidden path for legal professionals to tread. In the end, many of those who were willing to be interviewed had to go under a pseudonym and strictly no photographs so that they could speak freely.

This self-censorship though is not just to protect the courts. The reporter  requested to interview many well-known lawyers and was rejected by most. One of them is a lawyer who has been practicing for more than 20 years and has represented many protestors in lawsuits. He politely declined our request and apologised that he was not in a position to say anything:

“… Many of the defendants I represent made me feel deeply that for as long as our young people are willing to pay the price of their own future and even lives in exchange for changes in Hong Kong, we will not feel comfortable to freely express our views on what rule of law is. In the eyes of the young people, what has rule of law to do with them? They have to sacrifice themselves to instigate changes in political issues. In their eyes, what other options do they have? Do they really have the capacity to consider the rule of law? …

“… For Hongkongers having personally experienced these conditions for more than half a year, I do not think their views of the rule of law stems from a lack of understanding. I believe it is a result of their political demands, hope for justice, and resentment against either side for acts of violence. Their views will not change even if you ask them to calm down and copy the definition of rule of law 10,000 times. …”

Stand News eventually succeeded in interviewing a number of legal scholars, pro bono senior counsels, newly qualified barristers, conveners of Progressive Lawyers Group and law students. In this series of special reports, through interviews, we will explore the problems and reality behind "the death of the rule of law". How far are we from an absolute "death" of the rule of law?

Source: Stand News, April 2020

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