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Cliff Buddle

The recent ruling by the top court in favour of Falun Gong protesters has raised an interesting question.

It is one which has, over the years, been the subject of much debate both in Hong Kong and elsewhere in the world. The question is the extent to which the courts should balance the protection of an individual's rights against the wider interests of society.

An editorial in the Hong Kong-based Wen Wei Pao newspaper tackled the issue directly last week.

The newspaper said the court had failed to strike a proper balance between the protection of civil liberties and the maintenance of public order. It argued that in this and other cases, the judges had delivered rulings which are unpopular with the public. The right-of-abode case in 1999 and the Link Reit ruling were among examples cited.

There have been some gentle suggestions from other commentators that Beijing might deliver an interpretation on the issue of demonstrations if the court goes on to rule against the government in another - ongoing - case concerning the Public Order Ordinance.

Critics of the Falun Gong judgment may well feel that it put the interests of individuals ahead of those of society as a whole.

The case involved six participants in a protest outside the central government's liaison office in 2002.

They were arrested for causing an obstruction in a public place. When taken to the police station, they refused to co-operate and some of them assaulted officers concerned.

Their subsequent convictions for obstructing and assaulting police were overturned by the court earlier this month. The ruling was on the basis that the police had failed to pay due regard to the importance of the demonstrators' right to protest. Their arrest was therefore unlawful - and they were entitled to use reasonable force in order to resist.

One view of the ruling could be that the courts have upheld a right to bite and grab police officers who are doing no more than seeking to follow their superiors' orders. This, it might be said, is contrary to the interests of society (especially with hoards of demonstrators expected to arrive in Hong Kong in the near future for the World Trade Organisation meeting).

But the interests of society must be viewed in a much broader context. The court has a duty to uphold the law. That includes rights which the drafters of the Basic Law saw fit to include in Hong Kong's constitution. They presumably did so because this was viewed as  in the best interests of the community.

The Basic Law protects the right to free speech, to protest, to choose an occupation, engage in academic research, and raise a family freely, among others. It also makes the courts responsible for interpreting the law when deciding cases involving these provisions.

Only if the courts make their rulings freely, fearlessly and in strict accordance with legal principles will the independence of the judiciary and the rule of law be preserved.

This sometimes means that the courts are duty-bound to deliver a ruling which is unpopular. The judges are not politicians. They are not there to decide cases in accordance with opinion polls.

The upholding of rights protected by the Basic Law may well involve going against popular opinion. The provisions concerned reflect Hong Kong's core values. They are enshrined in law so that everyone can enjoy them equally - and so that they cannot be conveniently ignored for politically expedient purposes. If people's rights are to be denied on the basis of certain perceptions of what is in the interests of society, the system put in place by the Basic Law would begin to fall apart.

Judges are not, however, blind to the wider interests of society. Indeed, Mr Justice Kemal Bokhary referred directly in his judgment to 'the need to maintain the balance between the individual and society as a whole'.

The ruling is not a charter for protesters to behave in a disorderly and violent manner. The need for everyone concerned to act in a reasonable manner runs through the judgment.

Protesters must not cause an unreasonable obstruction in a public place. The police must have a reasonable suspicion that an offence has been committed before making an arrest. And if people are unlawfully arrested, they are entitled to use reasonable force (a common-law principle which has applied for more than a century).

All in all, this is hardly a recipe for anarchy. The ruling has been warmly received by the police as it clears up a grey area in the law. The principles laid down by the court for the handling by police of protests are easy to understand - and therefore easy for officers to follow.

The judges have defended not only the right to protest, but also the right of people not to be arbitrarily arrested and detained. These rights contribute  to Hong Kong's vibrant society - and  to its success.

This was a sensitive case and it has  given rise to different opinions. But it is unlikely Beijing will step in with an interpretation this time. The central government is well aware of the damage it would do to confidence in Hong Kong's system. There is every reason to believe this is an area in which Beijing will exercise restraint. That would be very much to its credit.

The court has applied the law as it is required to do. It has served the interests of society as a whole.

Cliff Buddle is a senior writer with the Post



Falun Gong ruling is in the interests of us all