The Lion Rock Spirit of Law

On October 6th, the HKSAR government opted for a ‘nuclear option’, imposing the Emergency Regulations Ordinance (ERO) to quell four months of massive anti-establishment protests. This colonial-era law, last used 50 years ago, allows the administration to green-light legislation proposals without passing the legislative council. While Carrie Lam claims that it is exclusively used to one particular case – banning protesters from wearing face masks to ease identification, critics and opposition concerns are sound – the ERO can pass regulations including censorship, arrest, detention and others, on the basis that the executive “may consider desirable in the public interest.” A pandora’s box of potential human rights violations has been opened. problematic. When the executive can override institutional safeguards, a detrimental trend of unchecked power could ensue. While the Hong Kong high courts have ruled the mask ban as unconstitutional, such trends of authoritarianism is precisely what protesters, and to a larger extent ordinary citizens, are concerned about when it comes to Rule of Law.

Meanwhile, when protesters stormed and vandalized the legislative council on the eve of Hong Kong’s handover anniversary on July 1, China’s Foreign Ministry spokesman accused protesters of “trampling on the rule of law” and denounced protesters for placing themselves above the law. With that, Xinhua emphasized the need to “reject excuses of crime” and support the government and the police force in “defending and strengthening the authority of the law”. When Han Zheng, Beijing’s top official for Hong Kong affairs, met Carrie Lam he remarked “the most important task for Hong Kong right now is to stop the violence and restore order”, noting that it is “the common responsibility of Hong Kong’s executive, legislature and judiciary”. This emphasis on obedience and compliance sums up our HKSAR administration and Chinese government’s conception of Rule of Law. Evidently, it is strictly linked to abidance to authority and maintaining social order in the Chinese view.

Lately, it seems as if the Rule of Law existed in two parallels. In many ways, this differing conception of Rule of Law demonstrates the ideological division between the ‘yellow’ and ‘blue’ side. Whereas the prodemocratic side emphasizes on ensuring the government powers are kept in check – the proestablishment side emphasises

More fundamentally, this executive move blatantly undermines the Basic Law. Article 39 provides that the International Covenant on Civil and Political Rights will continue to apply in Hong Kong after 1997. Article 73 vests the legislative power of Hong Kong in the Legislative Council. Article 8 says that any laws previously in force that contravene the Basic Law cannot be maintained. These provisions are nullified when the ERO is invoked. Furthermore, usurping the lawmaking function of the Legislative Council and passing it to the executive alone, is highly

obedience to the law. Yet this dichotomy is dangerous to maintain. Completely discarded from the Chinese conception of Rule of Law are Hong Kong’s courts, institutional context, and balance of power. Despite the concept’s ambiguity, this has been the recurrent core of Montesquieu, Locke, Aristotle and many philosophers's legalistic thinking. Hence, as put by Philip Dykes, chairman of the Hong Kong Bar Association, “protesters who break the law are not actually undermining the rule of law as such, because the rule of law operates to hold them accountable for their acts.” Such operation crucially consists of judicial independence and the exercise of power in a constraining framework, both of which completely missing in the establishment’s narrative. In response to the mask ban ruling, Beijing goes as far as insisting its sole authority in constitutional matters, stating “the Basic Law of Hong Kong can only be judged and decided by the standing committee of the National People’s Congress.” Rule of Law or Rule by Law? As such, the mask ban marks a symbolic beginning of the HKSAR’s descent from Rule of Law to Rule by Law. In addition to the unconstitutional move, our administration has repeatedly invoked obedience and ‘law and order’ to justify police repression. Evidently, a regime that “use[s] the law to constrain the governed rather than to constrain the way it governs” has emerged – the HKSAR government has merely recycled the colonial mechanisms and used law enforcement for its own political instrumentation. On October 4, a police officer was caught on video firing his gun at point-blank range into the abdomen of a protester moving towards him. On August 31, riot police stormed the Prince Edward station, and used batons and pepper spray against unarmed and non-resisting citizens and innocent commuters. These are only a few examples of illegitimate use of force, violating the basic principles of using weapons as a last resort. Despite an evident break down in rules and guidelines on the use of force, only one police officer, from a force of 30,000 has been suspended. Meanwhile, 4,400 protesters have been arrested since the protests began. As Locke puts it, laws “promulgated and known to the People” introduces predictability to the “sudden thoughts” and “unrestrained” wills of other people in lawless anarchy. In other words, the clear expression of law and its impartial administration helps prevent the arbitrariness and tyranny of rulers’ whims. This mitigates the asymmetry between the ruler and the ruled – precisely what Hong Kong is threatened by at the moment. As the executive turns a blind eye to the police force’s guidelines, the legitimacy of police actions are purely up to the administration’s discretion. Along with the absence of law against the ERO, the persistent unwillingness to conduct an independent investigation on police force (one of the five demands), many protesters or even ordinary people are rendered powerless. Civil “Lately, it seems as if ‘Rule of Law’ existed in two parallels”

“Civil liberties and human rights are vulnerable before a defunct rule of law”

liberties and human rights are vulnerable before a defunct rule of law, which no longer keeps power in check.

Not to mention the economic implications of such unchecked law enforcement. The basis of Hong Kong’s attractive position as an Asian financial hub is the predictability and transparency of how the law operates, enabling businesses and investors to make plans and work around its requirements. Yet, seeing the uneven enforcement of law for police and protesters, without any accountability, undermines these fundamental conditions. The proestablishment side’s accusations of protesters ruining the economy inevitably ignore our government’s actions as a more severe cause, and its detrimental long-term effects. Dating back to Aristotle, the principle that citizens and authorities are equally bound by, and are subject to the law, is fundamental to legality. For the government to absolve itself from its own system of accountability and justice, unbounding itself from law, while accusing others of “trampling the rule of law” and undermining the social order is unjust and deeply hypocritical. Our Core Values As seen, as a core value, the incongruity of the Rule of Law’s meaning between the pro-democratic side (or to a greater extent, the people) and government shows the uncertainty of Hong Kong’s identity. After all, the Rule of Law narrative emerged out of a colonial backdrop of social panic following the 1989 Tiananmen incident. British colonial rule represented a “bulwark against the looming lawlessness represented by the transition of sovereignty to China.” A decade later, in 1997, Chris Patten describes the concept as “the guardian angel of Hong Kong’s decency and the engine of Hong Kong’s success’. Ironically, the ERO itself was a colonial measure first ratified in 1922. Faced with a 30,000-person Seaman’s Union strike, which paralyzed Hong Kong’s ports, the British colonial government introduced a series of draconian measures that outlawed the Seaman’s Union and closed down its headquarters. It was then again used in 1966 riot against the increase in the Star Ferry fare, which saw 1,500 arrests without trial. By positioning the Rule of Law as so, it acts as a tool of ‘manufacture of consent’, providing a source of political legitimacy for the colonial government. Despite itself infringing this principle, the Rule of Law remains a much celebrated British ‘gift’, and a core value for Hong Kong. In many ways, it reflects Hong Kong’s precarious identity: citizens are oppressed by but also benefit from the vestiges of colonialism. Confronting these facts is what put Hongkongers in a political crossroad. The spirit of “Liberate Hong Kong” is an opportunity to hold Rule of Law to our collective ideals and truly internalise it as a unique (neither Chinese nor colonial) concept. Facing Hongkongers is the choice of whether to passively accept political reality by authority or actively assert political agency and reform. “The spirit of ‘Liberate Hong Kong’ is an opportunity to hold Rule of Law to our collective ideals”