The rule of law needs more than lip service to survive in Hong Kong

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.

Mainland officials may not understand that protests over democracy in Hong Kong are as much about the rule of law. The perception that Hong Kong’s autonomy is increasingly being eroded without a sufficient response by the Hong Kong government puts Hong Kong’s rule of law at risk. This fuels the demand for a democratically elected government to defend Hong Kong autonomy.

The Hong Kong government quickly condemned the recent protests in Mong Kok as riots. Here again, a perception gap reigns. Many mainland and pro-establishment politicians were quick to condemn the violence, while labelling the protesters as criminals and separatists. Democrats and academics agreed with the condemnation of violence but demanded further that the government consider the underlying causes.

This narrative over Hong Kong’s autonomy, democratic development and the rule of law clearly reveals the central cause. This further combines with a perception that the unelected Hong Kong government has not been sufficiently responsive to livelihood concerns, though a response that addresses the latter alone would not be sufficient.

Hong Kong people’s patience has been severely tested. In the recent consultations over democratic reform, multiple proposals offering compromise strategies to achieve a genuine choice of candidates were uniformly panned by the government. In the second round, even moderate proposals offered by pro-government supporters were dismissed. This left the impression that the consultation was meaningless and the suspicion that Beijing was calling the shots to advance the type of controlled election envisioned in the decision of August 31, 2014.

In this context, the causes of the radicalisation of Hong Kong politics are evident. Members of the public, especially our young, may be increasingly cynical about the solemn promises under the Basic Law, as well as associated livelihood issues. The “localist” movement has led in expressing this cynicism.

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A perception gap has grown between them and the more moderate pan-democrats over the best strategy to promote Hong Kong’s autonomy, democracy and the rule of law – and ultimately preserve Hong Kong’s identity. The perception that moderate non-violent demands for democratic reform have failed is surely understandable.

It is not enough for the government to repeatedly express its commitment to the “one country, two systems” model and demand Hong Kong people uphold the rule of law. Action to fulfil and secure those commitments is required.

While violence in social protests is never justified and nearly always self-defeating, there is now a clear obligation to understand and address its causes. Movement forward to allow a truly representative government that can sufficiently address these public concerns is urgent.

Professor Michael C. Davis, of the University of Hong Kong, specialises in constitutional law and human rights