Rule by law?
When even some of Hong Kong's most ardent defenders of civil liberties question the use of civil disobedience to defy the government, it should prompt pause for thought. But, curiously, less thought has been given to actions by a government that seems intent on exercising rule by law as opposed to rule of law.
This is not some clever play on words; it raises the question whether the government really respects the law, as opposed to seeing it as a convenient device for imposing its will.
As one might guess, this is all about the prosecutions in the Citizens' Radio case. Last week, Magistrate Douglas Yau Tak-hong ruled that the law regulating permission for radio broadcasts gave the chief executive 'unfettered and unchecked power' that infringed the constitutional right to free speech. He questioned whether anyone broadcasting without a licence could be constrained by an unconstitutional law.
Understandably, the government's lawyers rapidly issued a challenge, which they have a right to do. But did the government have the right to make an equally rapid application for an injunction barring the Citizens' Radio broadcasters from attempting to make another broadcast? The injunction was granted, to the unease of some senior lawyers. They believe that, while the constitutionality of the law remains in question, there is no reason to give the benefit of the doubt to a government that had just lost its case and was striving to enforce a law that may be at variance with the Basic Law.
Moreover, there is something rather strange about an injunction granting the government seven days to go and find evidence that these broadcasts were capable of interfering with the provision of essential services. Normally, applicants for an injunction come armed with the evidence to justify it, not to seek permission for a fishing expedition that may or may not find some.
These are not minor, technical legal arguments; they go to the heart of how the government (and the courts) view the maintenance of rule of law. Rule of law, as opposed to rule by law, cannot allow selective application of the law or detract from the principle of equality before the law. This means that even governments have no higher status in the courts than humble citizens. Government intervention in the Citizens' Radio case has ensured that the accused are left in a no-man's land between guilt and innocence. This is very strange and unthinkable in a normal criminal case.
Now, the question arises as to whether the defendants should have sought a remedy by means of civil disobedience or by exhausting the legal system to obtain redress. They have been roundly criticised for opting for the former. Their motives in so doing are sound - they want to expose an unjust restriction on freedom of speech - but are they wise? Probably not, because civil disobedience is only really effective as a last resort.
If the government continues to travel down the road of rule by law, it may be necessary to move in this direction - but we're not there yet.
But there is growing evidence of an official mindset that views the law as a convenience for oppressive action. The police, for example, are being given considerable leeway to impose unreasonable conditions on demonstrations. They claim that the requirements of public order give them the right to act in this way. But suspicion lingers that the motive is political, thus outside the scope of the law, even though legal powers exist to impose these oppressive measures.
And, are we seeing evidence of selective prosecution in obscenity cases, where high-profile but relatively trivial matters are being pursued while blatant low-level obscenity is ignored? This appears to be what happened when the government got excited over a T-shirt slogan produced by the G.O.D. department store. When prosecution is selective, it is clearly oppressive. It is far too soon to cry wolf over the rule of law in Hong Kong. But it is soon enough not to allow complacency to set in.
Stephen Vines is a Hong Kong-based journalist and entrepreneur