The rule of law needs more than lip service to survive in Hong Kong
Michael Davis says local officials and politicians have repeatedly failed to protect and preserve Hong Kong’s autonomy, which has created the conditions for cynicism to prosper
Hong Kong is increasingly locked in a perception gap that has come to colour nearly every aspect of political life.
National People’s Congress chairman Zhang Dejiang (張德江 ) and other Chinese leaders have taken to lecturing Hong Kong on maintaining the rule of law. We are told “street politics could tarnish Hong Kong’s image”. The implication is that protests are the primary threat to the rule of law.
The reasoning involves a mainland version of constitutionalism and the associated rule of law that sees it primarily as the people and government carrying out the policies and directives of the Communist Party. This theory explains why the Beijing leaders are often quoted as supporting the constitution and yet have tended to jail people who support a more functional constitutionalism.
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In Hong Kong, this central government commitment to the rule of law is guided by the principle that Hong Kong people accept without question Beijing’s interpretations and directives concerning the Basic Law. Hong Kong resistance was said in the white paper on Hong Kong to reflect a “confused and lopsided” view.
Hong Kong’s people and its courts adhere to a different version of the rule of law. This version has long held that top officials are bound by the same rules that govern the public at large. Under such a standard, nobody is above the law and everyone is subject to the law applied in the ordinary manner. The central and Hong Kong governments taking excessive liberty with the meaning of the Basic Law does not meet that standard. Such an approach elevates their expedient preferences over the reasonable meaning of the commitments expressed in the words of the Basic Law.
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This taking of liberty was most notoriously evident in the interpretation of the “universal suffrage” promise in Basic Law Article 45 offered on August 31, 2014, as it has been over the many years of foot-dragging on democratic reform. That the Hong Kong government has long been complicit in this and was not seen to support Hong Kong people’s concerns through the tense debates of 2014 and 2015 has in many ways fuelled the protests that have occupied our streets.