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Published: 00:46, June 16, 2022 | Updated: 11:45, June 16, 2022
City's rule of law sees progress in the past 25 years
By Junius Ho and Kacee Ting Wong
Published:00:46, June 16, 2022 Updated:11:45, June 16, 2022 By Junius Ho and Kacee Ting Wong

While celebrating the 25th anniversary of Hong Kong’s return to China, we should not forget the great contribution made by the special administrative region government and the practitioners in the judicial sector in upholding the rule of law in the past 25 years.

According to the World Justice Project’s 2021 Index, Hong Kong’s rule of law ranking was 19th-highest in the world. But one man’s meat is another man’s poison. We will not feel amazed that our admirable efforts in sustaining the rule of law have become the source of deep discomfort for some Western scholars and politicians. In November, Jerome Cohen argued that comprehensive change in Hong Kong’s criminal justice system after the promulgation of the National Security Law (NSL) for Hong Kong has transformed it into an instrument of fear (J. Cohen, “HK’s Transformed Criminal Justice System: Instrument of Fear”, in Academia Sinica Law Journal, 2022 Special Issue, pp 1-20).

Because of cultural bias, many Western legal scholars argue that the rule of law in a strong sense thrives only alongside Western values of human rights, liberty and democracy. We disagree. No definition of the rule of law is universally acceptable, nor could it ever be. Nevertheless, many attempts have been made to find a universal set of principles that would constitute a working definition of the rule of law. The emphasis on universality is important because no society, however advanced in other respects, has ever attained — let alone sustained — a perfect realization of the rule of law.

According to the World Justice Project, there are four universal principles that are free from Anglo-Saxon biases. They are: (1) the government and its officials and agents are accountable under the law; (2) the laws are clear, publicized, stable and fair, and protect fundamental rights, including security of persons and property; (3) the process by which the laws are enacted, administered, and enforced is accessible, efficient, and fair; and (4) justice is delivered by competent, efficient and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

Hong Kong’s hard-earned achievement in upholding the rule of law has also been applauded by the World Bank. In its Worldwide Governance Indicators, Hong Kong’s rule-of-law index improved from 69.85 before it was returned from British rule in 1997, to more than 90 since 2003. It’s a hard-earned achievement because every inch of space on the rule-of-law road has either been crowded with disruptive political events or planted with political time bombs in the past 25 years.

These political events include: unreasonable criticisms of the various interpretations of the Basic Law by the Standing Committee of the National People’s Congress, massive protests against the proposals to implement Article 23 of the Basic Law, the unlawful “Occupy Central” movement in 2014, harsh criticisms of judges out of political bias, and the resignation of two senior British judges from the Court of Final Appeal (CFA). In mid-2019, the political time bomb exploded when the government proposed legislative amendments to the Fugitive Offenders Ordinance. Unfortunately, it led to violent demonstrations and massive vandalism. The “black-clad riots” posed a serious threat to national security, social stability and the rule of law.

Before the outbreak of the 2019 riots, nobody appeared to have realized, much less recognized, that there were disruptive and destabilizing threats posed by the anti-China disruptors in Hong Kong. External forces were also involved in the riots. Without an early warning system, Hong Kong suffered the full brunt of devastation from June to December 2019. To add fuel to the fire of disruption, the opposition activists made concerted plans to further destabilize Hong Kong by grabbing over half of the seats in the Legislative Council’s election originally scheduled for September 2020.

The black-clad riots reminded us that we must introduce national security legislation in times of heightened geopolitical rivalry in the region. Emphasis has to be placed not only on the urgent need to reverse the chaotic situation and restore order in the city, but also on the grave danger arising from our failure to plug the loophole in the laws on safeguarding national security. The NSL has plugged this loophole by clearly stipulating the four types of offenses endangering national security.

Contrary to the allegation that Hong Kong’s criminal justice system has been transformed into an instrument of fear, we emphasize that Article 4 of the NSL makes it plain that human rights and fundamental freedoms under the laws of Hong Kong are to be respected and protected while safeguarding national security in the city. The mild response of Western scholars to the Public Order Bill of the United Kingdom, in contrast with their harsh criticism of the NSL, has cast a light on their double standards. While criticizing Article 42 (concerning bail application) and other allegedly draconian provisions of the NSL, they have turned a blind eye to the equally draconian provisions in the Public Order Bill. One Green Party member of Parliament described it as a public oppression bill.

Jerome Cohen used the term “nuclear option” to describe the power of the Office for Safeguarding National Security of the Central People’s Government in Hong Kong to transfer the prosecution from the Hong Kong legal system to that of the Chinese mainland for processing in accordance with the procedures of the People’s Republic of China (Ibid., p. 13-14). As a retired judge at the CFA, Henry Litton has correctly pointed out, it is reasonable for the NSL to specify that Beijing could intervene when a case involved a foreign country or external elements, thus making it difficult for the city to properly exercise jurisdiction.

We earnestly hope that an early implementation of Article 23 of the Basic Law will further strengthen the guard against national security threats. If Article 23 had been implemented in 2003, local courts would have enjoyed more room in interpreting such local legislation in accordance with common law tradition and local culture.

One final observation is that some young rioters joined the black-clad riots because of their failure to understand the cardinal principles of the rule of law. In Koo Sze Yiu vs Chief Executive of the HKSAR (2006) 9 HKCFAR 441, the CFA makes it clear that the rule of law involves meeting the needs of law and order. When these rioters believe that they should use illegal means to resist a particular law that they regard as unjust, they are posing a threat to the rule of law because the decision to disobey a particular piece of legislation might cumulatively suggest that there is no general obligation to obey the law, but only the law of which they unilaterally approve. To complicate matters further, justice is regarded by some as an elusive concept. The belief that they could use violent demonstrations to pursue “a higher level” of justice is totally wrong.

Judging from above, we should be alert to the inherent danger that the principles of the rule of law have not been entrenched into the consciousness of these young people. Obeying the law is their duty. Besides, we should promote national security education to convince these youngsters that they have a sacred duty to safeguard national security. Finally, we should support an early implementation of Article 23 of the Basic Law.

Junius Ho Kwan-yiu is a Legislative Council member and a solicitor.

Kacee Ting Wong is a barrister, part-time researcher of the Shenzhen University Hong Kong and Macao Basic Law Research Center, and co-founder of the Together We Can and Hong Kong Coalition.

The views do not necessarily reflect those of China Daily. 


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