Illustration: Craig Stephens
by Michael C. Davis
by Michael C. Davis

Far from forsaking Hong Kong’s rule of law, extradition bill protesters are trying to defend it

  • The rule of law is not about enforcing government diktat. It is about the impartiality and independence of courts and leaders, which protesters fear are being eroded
As the extradition bill saga unwinds, Hong Kong officials and Beijing’s representatives have again proved clueless as to what the rule of law means. They appear to imagine that it merely means following the dictates of government rendered in some legal form.
Last Thursday, the director of the central government’s liaison office, Wang Zhimin, in his first public comments since protests erupted against the now-suspended extradition bill, compared the rule of law to air and water. Chief Executive Carrie Lam Cheng Yuet-ngor echoed a similar sentiment on Monday, calling the rule of law the “cornerstone” of Hong Kong’s success.

Wang and Lam are undoubtedly correct in stressing the importance of the rule of law but they appear to have little appreciation of the primary threats facing Hong Kong’s rule of law.

The two million people who marched against the extradition bill clearly had a better understanding of these urgent threats.

The rule of law, as understood in Hong Kong, is primarily about holding government officials accountable to the law. In common law terms, nobody is above the law and everyone is subject to the law applied in the ordinary manner before ordinary courts. Achieving this requires the protection of basic rights and the independence of courts charged with applying the law, unfettered and in accordance with principles of justice. Economic issues may arise in respect of equal access to justice.

The mainland system tends towards a different view. That system of rule of law emphasises the following of the dictates of the Communist Party.

In providing for a high degree of autonomy on local matters, the Sino-British Joint Declaration and the Basic Law clearly aimed to guard Hong Kong against intrusion of that authoritarian system. The Basic Law therefore generally prohibited mainland interference in the local system and even the application of mainland law in Hong Kong, except for limited exceptions added to Annex III of the Basic Law. The lack of the rule of law on the mainland was clearly understood to pose a risk to Hong Kong.
Central and local government officials have long failed to appreciate that popular protests, even the 2014 civil disobedience campaign, aim to defend the rule of law. At the same time, heavy-handed police tactics that fail to protect the basic rights of protesters threaten the rule of law. Moreover, the refusal to fully appreciate public concerns combined with such heavy-handed enforcement may increase the level of dissent in the society, as was on display in Sha Tin over the weekend.

Hong Kong protesters have long recognised a certain design flaw in the “one country, two systems” model as now applied: A local chief executive chosen by and beholden to Beijing for her position is poorly placed to carry out her role of defending Hong Kong’s autonomy against Beijing interference.

Worse yet, such official may be inspired to anticipate Beijing’s designs on Hong Kong and push ahead to achieve them. If we are to believe Lam’s claim that she had put forth the extradition bill on her own, then that bill may well be an example of the latter failing.

Nobody expects the chief executive to be constantly at odds with the central government, but at the minimum, autonomy requires that the chief executive finds her voice to explain Hong Kong concerns and guard the values at the heart of the Hong Kong autonomy model – especially the rule of law described eloquently by Wang as “air and water”.

China’s rule of law has not come far enough to reassure Hongkongers

Beijing’s lack of understanding of rule of law principles is evident in the parade of interferences that we have witnessed in recent years. It is not in accordance with the rule of law to interpret the fundamental commitment to universal suffrage in the Basic Law in language that such a concept will not bear, as the Standing Committee of the National People's Congress did in its August 2014 response to the proposal to launch political reform.
It is not compliant with the rule of law to ignore Hong Kong’s autonomy and snatch booksellers or businessmen off the streets of Hong Kong to subject them to justice on the mainland.
It is not adhering to the rule of law for the central government to pre-empt a court ruling on the meaning of local law with respect to oath-taking.
Add to these the Hong Kong government’s efforts to please Beijing and it is easy to see why local people do not trust it to guard local autonomy and the rule of law. The rule of law is not served by blocking young activists who have committed no crime from running for office or by blocking them from office after they have been democratically elected. Such administrative disqualification is now seemingly extended to rural representative elections. Nor is the rule of law served by banning political parties or banning an international reporter for hosting a speaker.

Finally, the rule of law will clearly not be served by extraditing local residents and visitors for prosecution in a mainland system that lacks the rule of law and violates basic procedural rights.

Clearly, if Hong Kong had a truly elected government beholden to the people, the threat to Hong Kong’s survival would be greatly reduced
These are the policies that have so animated Hong Kong’s youth that they have taken to the streets. They surely worry if their place of birth can survive this growing threat to its autonomy and rule of law.

An astute observer would note that nearly every protest in Hong Kong has been over policies subservient to the mainland advanced by the Hong Kong government. Clearly, if Hong Kong had a truly elected government beholden to the people, the threat to Hong Kong’s survival would be greatly reduced. It is doubtful that such a government would squander its political capital by taking a confrontational approach to Beijing, and neglecting local concerns.

More importantly, one might hope that such government would find its voice when necessary to safeguard Hong Kong’s autonomy, in the interests of both Hong Kong and the mainland.

Michael C. Davis, a former professor at the University of Hong Kong, is a Global Fellow at the Woodrow Wilson International Centre in Washington, D.C.

This article appeared in the South China Morning Post print edition as: Liberty’s cornerstone