See the Forest for the Trees
April 23, 2019
A lot can happen in a single year.
A foreign journalist was expelled for hosting a lunch talk. A civil servant lost a symbolically significant legal battle for equal treatment of his same-sex partner. Trials began for leaders of the Occupy Movement for crimes that nobody knew existed. Unimaginable only years ago, the government ceded a piece of Hong Kong to mainland China after Beijing issued another interpretation of the Basic Law.
Those events, and so many more, went through the fast-moving news cycle in 2018. Each of them captured our attention for a day or two, before something bigger came up and grabbed our eyeballs.
Although none of the incidents seemed earth-shattering individually, they had the power to threaten the city’s rule of law and shift the entire political landscape cumulatively. The situation is not unlike global warming: climate changes often seem inconclusive when considered singularly, but they reveal alarming trends when viewed over time and as a whole.
This small-changes-can-add-up scenario didn’t only happen in 2018. It has already played out many times over right under our noses.
Two years ago, a half-dozen opposition lawmakers were ousted for straying from the prescribed oath during the swearing-in ceremony. Shortly therefore, the pro-Beijing camp initiated a series of rule changes in the Legislative Council to curtail filibusters.
We are only starting to feel the repercussion of these events today, the combined impact of which has allowed bad bills to sail through the legislature unchallenged. After the government rammed through a colocation arrangement that punched a hole in the “one country, two systems” framework, it is now poised to do the same with a national anthem bill and an extradition amendment that further erode our freedom of expression and threaten our personal security.
At this rate, it won’t be long before Hong Kong regresses to the police state in the early colonial days, or evolves into the kind of dystopian future that local filmmakers imagined in Ten Years and The Midnight After.
It is against that dire political reality that the Progressive Lawyers Group (PLG) compiled and published the city’s first-ever rule of law report. Comprising eight chapters, it records and analyzes legal developments in 2018, and finishes off with sixty recommendations in areas from law enforcement and the legal profession to sexual equality, academic freedom and other fundamental rights.
Putting together a 300-page bilingual report is a massive undertaking for any volunteer-based advocacy group. The work is demanding, depressing and once taken on, becomes an annual commitment. The PLG has picked up the mantle because the subject matter is near to the hearts of its professional membership. But, more importantly, the group wants fellow citizens to look at the cumulative effect of events that have chipped away at the very foundation on which Hong Kong is built. It wants them to see the forest for the trees.
Hong Kong is an economic city. Citizens are time-pressed and constantly distracted by news stories that compete for their attention. Only a week ago, a local celebrity’s cheating scandal gripped the public consciousness for 48 hours, during which nothing else matter, and after which something else quickly took over. Something always does.
Our short attention span and even shorter memory have encouraged the government to bombard us with new headaches every few weeks. In this war of attrition, citizens barely have time to process yesterday’s news before a more complex and disconcerting issue hits them in the head and then all is forgotten.
Our forgetfulness may also be by choice. It is a coping mechanism in response to the sense of powerlessness against a government that we played no part of electing and that remains brazenly unaccountable.
Whether this short memory is by design or by circumstance, the rule of law report reflects the PLG’s stubborn refusal to let things slip through our minds. The publication brings into sharp focus the incremental regressions in the city’s rule of law that are otherwise too hard to detect and too easy to forget.
To borrow the popular “boiling frog” metaphor (the idea that the jumpy critter will remain oblivious to the danger if the water is heated slowly enough), the lawyers’ group wants its report to be the thermometer that warns against the ever-rising temperature and jolt the frog out of its blissful ignorance.
A second motivation behind the project has to do with two commonly confused phrases: “rule of law” and “rule by law.”
The former—the focus of the PLG report—refers to the principles of natural justice and encompasses concepts such as an independent judiciary, access to substantive and procedural justice, and the protection of fundamental rights. Incidents like the banning of the Hong Kong National Party and the disqualification of pro-democracy candidates from election trample on their constitutional rights, which in turn endanger the city’s rule of law.
By contrast, “rule by law” refers to strict compliance with the law books, based on the notion that neither the law nor the authorities that enforce it can be challenged. In its worst and most dangerous form, rule by law allows those in power to use the criminal justice system as a political weapon to silence dissent.
The most poignant example is the prosecution of the so-called Occupy Nine. The Department of Justice threw its massive resources at relentlessly pursuing leaders of the Occupy Movement and slammed them with archaic charges like public nuisance, incitement of others to commit public nuisance and, most unfathomably, incitement of others to incite public nuisance.
An untrained person may be persuaded by the authorities that the protesters’ legal comeuppance were just deserts. After all, the nine individuals did break the law. But strictly speaking so did the hundreds of thousands of citizens who came out to Admiralty, Mongkok and Causeway Bay and partook in an unlawful assembly during the Occupy Movement—as do countless others around the world who wage nonviolent civil disobedience campaigns to speak up against unjust laws and governments.
There is much more to the concept of rule of law than a simple causal link between crime and punishment. By issuing a rule of law report, the PLG wants to once and for all correct a confusion of terms—a misconception that the government is eager to perpetuate, as it is both easier and more efficient for them to manage those who simply follow the rules no matter how unreasonable they are.
In the coming weeks, the PLG will reach out to universities, the business community and other relevant stakeholders to discuss findings and recommendations included in the 2018 report—because so much can, and did, happen in a single year. And the trend is showing no sign of letting up.
Barely three months in, 2019 is already shaping up to be another tumultuous year for Hong Kong. Tomorrow, the Occupy Nine will find out their fate as the court issues sentences for their public nuisance and incitement convictions. Meanwhile, the extradition amendment bill has caused such consternation among the public that both the pro-democracy camp and the business establishment have voiced their objection in a rare show of solidarity.
There are even whispers through the grapevine that Beijing may, before the end of this year, instruct the chief executive to bypass the legislative process and introduce national security laws via another Basic Law interpretation. If that is true, the move could deal a mortal blow not only to our freedom of expression but also the city’s independent judiciary.
With the way things are going, the PLG—and other members of civil society—has its work cut out for it. The group has already started working on the 2019 Rule of Law Report, which unhappily promises to be heftier, and more grim, than the last.
This article was published in Hong Kong Free Press under the title “Seeing the forest for the trees: Why a lawyers’ group published Hong Kong’s first Rule of Law Report.”