In a guest blog, Canadian political scientist Jean-François Dupré argues that Hong Kong's rule of law myth cannot exist in the absence of democracy.
The rule of law holds a very special place in Hong Kong’s identity and official branding. Hailed as a key core value of Hong Kong, the rule of law is one of the few principles that appeal equally to the establishment and the opposition. In the absence of meaningful democracy and autonomy, the rule of law has been one of the regime’s main legitimating formulae.
In recent years, both sides of the political spectrum have warned of the rule of law’s potential decline, but for different reasons. Pro-democracy figures fear a politicization of the judiciary that would result in the legal system being used to quell dissent and fulfil the government’s authoritarian objectives. Pro-establishment figures, on the contrary, believe it is dissent—particularly in the form of civil disobedience—that threatens the rule of law. Hence the need to punish offenders severely.
But what is the rule of law anyway? In the words of the Hong Kong Department of Justice, “[the rule of law’s] principal meaning is that the power of the government and all of its servants shall be derived from law as expressed in legislation and the judicial decisions made by independent courts.” Furthermore, “Legality and equality before the law are two fundamental facets of the rule of law”, together with “rules which restrict discretionary power”. This is a standard, but overly formalistic and convenient definition of the rule of law.
It is not the idea of judicial independence that I seek to challenge here. So far, Hong Kong courts, while definitely displaying a conservative bias, appear to have made decisions largely independently from other branches of the government. I also do not think that some people in Hong Kong, be it tycoons, police officers or government officials, are technically and undeniably above the law—though recent events may be a cause for concern.
But if the rule of law is to be an effective principle in delivering justice and legitimizing authority, I think at least two more criteria need to be included in our definition.
The first one is that government executives should refrain from—or exercise great restraint in—using the law to achieve political ends. After all, a common approach to conceptualizing the rule of law consists in contrasting it with China’s rule by law system, where the law is applied arbitrarily to fulfil political purposes. This largely pertains to the practice of the rule of law.
The second criterion is that the lawmaking process must be fair and conducive to just law. This implies that lawmakers should be selected through free and fair elections. If the law is “expressed in legislation”, but the legislative system is severely flawed—perhaps resulting in laws that disproportionately enshrine narrow elitist interests to the detriment of wider public interests—the rule of law might merely end up enforcing an unjust and institutionally corrupt system.
Take the Basic Law, Hong Kong’s constitution, for example. The Basic Law was drafted in the 1980s by a committee dominated by Hong Kong economic elites, Chinese officials and other pro-authoritarianism figures under the auspices of the National People’s Congress—the technically unelected legislature of a totalitarian country that itself doesn’t uphold the rule of law. Quite outrageously, the Standing Committee of the National People’s Congress also holds the power of final interpretation over the Basic Law.
While the Basic Law does uphold some fundamental basic human rights and freedoms, its main purpose was to strengthen the authoritarian, colonial and predatory, rentier capitalist system in place.
Skewed electoral rules ensure that pro-democracy lawmakers remain confined to everlasting minority status in the legislature (mainly in geographical constituencies), while coopted economic elites who already hold a tremendous power of influence over government and society are endowed with lawmaking powers through corporatist functional constituencies.
In a system built on such corrupt foundations and designed to resist reform, it is no wonder frontline protesters have revived the Hong Kong independence slogan “Liberate Hong Kong, the revolution of our time!”.
While the courts appear to have maintained much independence, there has been an unhealthy trend in the executive using the law and legalistic arguments as threats and means to suppress the opposition, squash dissent and breach political rights. The controversial Public Order Ordinance—an old British colonial law—is a timely example. By labeling the recent disturbances as riots, the government is signaling that the prosecution will seek rioting (rather than, say, illegal assembly) charges for suspects, which under Hong Kong law can be punished by lengthy jail sentences upon conviction.
Although the Department of Justice reiterated that “the [prosecution] will only decide to prosecute if the evidence accepted by the court demonstrates a reasonable prospect of conviction”, also implying that the ultimate ruling would be made by independent courts in accordance with the rule of law, this is irrelevant. The judiciary may be institutionally independent, but the prosecution is basically under the executive, and its actual independence is questionable to say the least. By seeking the harshest possible charge for an escalation in political actions that emanate from the government’s refusal to reform itself, the government is already misusing the law as a tool to fulfil its own political ends, by the same token damaging the rule of law.
Indeed, the very day after the Beijing-based State Council held a rare press conference to call on Hong Kong authorities to get tough on protesters, the Hong Kong government decided to charge 44 recently arrested suspects with rioting offenses. The downright provocative move, which was presumably aimed at signaling the government’s obedience to Beijing, was immediately decried by prosecution lawyers as a breach in mandated practices and as evidence of the prosecution’s politicization.
The same dynamics apply for many post-Handover, Chinese colonial laws. Article 1 of the Basic Law, which states that Hong Kong “is an inalienable part of the People's Republic of China”, has been used in a very dubious and arbitrary manner to ban Hong Kong independence parties and to bar pro-independence candidates from participating in the election process.
The planned extradition bill, which prompted the current political crisis, and the ongoing national anthem bill, are other examples of laws that would be so unpopular and detrimental to public interest that no politician in their right mind would have dared proposing them in a moderately democratic system.
Had it not been for the efforts of institutionally marginalized pan-democratic legislators who did everything in their power to delay the extradition bill, protest organizers, the millions who took to the streets on different occasions, and those who stood on the frontline, the government would soon be extraditing people to China “in accordance with the law”. Soon, Hong Kong people caught disrespecting the national anthem that is being forced on them may be handed jail sentences “in accordance with the law”.
Government officials have been punctuating their legal threats and legalistic arguments with their platitudinous “in accordance with the law”. But perhaps what this phrase really means is “in accordance with the will of the mighty few unfairly endowed with lawmaking powers”.
The bottom line is, the Basic Law, together with the political system it provides the legal basis for, is seriously flawed and has little legitimacy. And if the main source of law and the lawmaking system are devoid of legitimacy, the rule of law loses its value as a legitimating formula. It becomes a tool of oppression.
Indeed, recent political developments suggest Hong Kong may be quickly turning into a police state.
The government has been misleading the public for decades with chimeras like democracy, autonomy, and the rule of law. By now we all know the first two were never meant to happen. Perhaps it is also time we recognized Hong Kong’s authoritarian rule of law is little more than rule by law, albeit with an independent judiciary…for now.
There is no democracy without the rule of law. But there is also no rule of law without democracy.
Jean-François Dupré is a Canadian political scientist affiliated with Academia Sinica’s Institute of Sociology (Taiwan), and a permanent resident of Hong Kong. He has published widely on Hong Kong and Taiwan politics.
This article also appeared on The Stand News website.