Role of the Judiciary with Mr Paul Shieh SC

The Rule of Law and the Social Movement: A Reflection on Language, Politics and the Role of the Judiciary with Mr Paul Shieh SC

Interview: Rita Kan, Issac Fung Writing: Rita Kan Editing: Issac Fung

The ‘rule of law’ is something often talked about in Hong Kong, a phrase commonly cited when talking about virtually every political and social event. The idea of having the ‘rule of law’ in Hong Kong is entrenched - a core value that cornerstones our institutions, an overarching concept that most if not all agree should be preserved. In the past months, it has often been said that there is no longer the “rule of law” in Hong Kong, or that it has been severely eroded. But what does the “rule of law” mean in Hong Kong? It seems as if while the ‘rule of law’ features in many of our discussions, a deeper understanding of the concept is missing. In times where the accuracy of information and language is more important than ever, yet less contemplated than ever, there lies a responsibility in all of us and the media to talk about the ‘rule of law’ in Hong Kong with deeper reflection. Mr Paul Shieh SC spoke with us about the ‘rule of law’ in Hong Kong, misconceptions about it and misuse of the term; and on a broader sense, the challenges Hong Kong and its legal system faces.

The Rule of Law in Hong Kong - Ideology and Practice, Misuse and Misconceptions

Why even bother understanding what the rule of law means in Hong Kong? At first glance, it would seem that discussions over ‘the rule of law’ are needlessly academic. Mr Shieh points out, however, exactly why it is important to understand the rule of law in the context of Hong Kong: Hong Kong’s legal system sets it apart from mainland China - the difference in legal systems is a key feature of ‘One Country, Two Systems’. Hong Kong’s distinct legal system was intended, at the time of the handover, to ensure that Hong Kong retains its competitiveness, and secure the ‘two systems’ strand of ‘One Country, Two Systems’. But a legal system, like all systems, means very little if does not have regard to the principles that underpin it; and the key principle behind the Hong Kong legal system is that of the rule of law.

Talk of the ‘rule of law’ is weaved into all aspects of our political narrative. Mr Shieh reminds us that the concept is not set in stone. There is no document to go to that stipulates a definitive definition of the ‘rule of law’. Instead, the ‘rule of law’ is really a set of political principles. Beyond that, in order to answer the deceptively simple question ‘what is the rule of law?’ in the context of Hong Kong, it is essential to understand its origins. The rule of law, Mr Shieh points out, is predicated upon Western democratic principles. As such, democracy is a prerequisite for the rule of law - thus the phrase “沒 有民主，哪有法治”. This leads to deeper questions about whether Hong Kong is capable of having genuine rule of law, given that Hong Kong’s political system is arguably not truly democratic. The rule of law is largely a set of principles about the exercise of public power.

Returning to how the ‘rule of law’ is used in our current political discourse, the government condemns protesters breaking the law during demonstrations by describing their actions as undermining the rule of law. On the other hand, some protesters believe that only the government can undermine the rule of law.

Photo credit: HKGETV

It is important, Mr Shieh tells us, that in understanding what the ‘rule of law’ is, to also understand what it is not. Political philosophers such as Dicey, constitutional lawyers such as Bingham, and indicators or criteria in international indices concerning the rule of law all describe the rule of law as a concept not about private individuals’ compliance with what the state prescribes for them as law, but rather, a concept concerning the exercise of governmental power, procedural fairness, and the protection of rights. Adherence to the law by private citizens (while relevant) is not the essence of the spirit of the rule of law. Reflecting on the current political scene, Mr Shieh points out that endless emphasis on protesters’ breaking of the law during demonstrations on the government’s end is misplaced. The over-simplistic allegation towards protesters that by breaking the law they are undermining the rule of law is an imbalanced presentation; it is also ironic because the government, holding public power, bears more responsibility in upholding the rule of law. On a higher level, Mr Shieh echoed an astute warning he had given in 2015, when he stepped down as Chairman of the Hong Kong Bar Association, that the endless, distorted emphasis on the ‘obey the law’ aspect of the rule of law while disregarding other more important aspects is symptomatic of an oppressive and authoritarian regime. The government thus needs reflection on whether it has itself conformed to the rule of law - a failure of which would be hypocritical and a grave sign of deterioration. government is subject to the rule of law and private citizens are free to do as they please, Mr Shieh reminds us that while the rule of law is largely about the government’s exercise of public power, it is not an absolutely one sided concept - nothing is. Citing the International Bar Association’s Commentary on the Rule of Law, Mr Shieh talks about the other side of the coin: the rule of law also involves people accepting that they are subject to the law. Acceptance does not mean obedience out of fear but general respect for the law, demonstrated by voluntary overall compliance with it. When people do not regard themselves subject to the constraints of the law, and argue that only the government can undermine the rule of law, the rule of law also takes a hit. Mr Shieh reminds us that the rule of law must be viewed as a whole - a one-sided argument that the people play no part in upholding the rule of law in Hong Kong is detrimental, though it is always worse when an oppressive government fails to conform to the rule of law.

Given that the ‘rule of law’ as understood in Hong Kong hinges upon a Western style of democratic government, does this mean Hong Kong does not have genuine rule of law, and there is no need therefore to uphold it altogether? Mr Shieh thinks that we must be pragmatic - there are structural shortcomings in Hong Kong’s legal and political systems, but we need to recognise the basis on which the Hong Kong Special Administrative Region derives its existence, and seek to maintain and uphold the virtues our legal system possesses as best as we can. While there is a lack of formal restraints on

the executive in some aspects of their exercise of power, for example in the appointment of judges (such that the existence of an independent judiciary with impartial, qualified and upstanding judges ultimately relies on the self-restraint of the Chief Executive who is not politically accountable to the population of Hong Kong), in practice, Hong Kong’s legal system is largely robust despite theoretical flaws. Recognising the political reality, we should aim to preserve the rule of law as we understand it as far as possible. Of course, Mr Shieh comments, there could come a tipping point where the legal system and the rule of law in Hong Kong is no longer “passable”, and mentions the possibility of a slippery slope - the government’s persistent failure to uphold the rule of law and the public’s lack of understanding and respect for the same. Mr Shieh is not entirely pessimistic: judicial independence in Hong Kong is still well upheld, and judges are independent and highly capable. But public perception is important - Mr Shieh cautions that undermining the authority and integrity of the judiciary in the guise of freedom of speech is harmful for the rule of law, and unwarranted attacks on the judiciary by both the government and the public could undermine the judiciary. Again, Mr Shieh emphasises, it is qualitatively worse when those in power challenge the power of the court, and the task of defending and cultivation of the rule of law lies largely in the hands of the establishment. Reflection from both ends of the political spectrum, in particular the government (both Hong Kong and Mainland) on their actions and also their language, is desperately needed.

Photo credit: HKGETV

A Decline in Politics and the Limits of the Judiciary

The problem now is that only one side of the political spectrum is held accountable by law. Protesters who are believed to have committed riot and commit criminal damage are prosecuted (and if the evidence warrant it, convicted too), but police officers who strongly to appear have genuinely used excessive force are not. Our judiciary does not have a mechanism to hear cases that do not come to it - if the process of arrest and prosecution is flawed, cases of illegal law enforcement can never reach the courts. The court does not have the power to prosecute - the judiciary cannot truly enforce the law impartially, because it can only pronounce on cases that the executive chooses to bring before it. Protesters who had broken the law during demonstrations have been duly held accountable, but what about the other side? There lies in our system a loophole - it is for the police to initiate prosecution, and if the police do not look within itself to arrest and initial prosecution of wrongdoers within its own ranks, there is no way they can be held legally accountable. Mr Shieh points out that the solution to the problem of accountability no longer lies in the legal arena - the law cannot provide answers because it cannot consider the question at all; there is no legal redress available. There needs to be a political solution and political accountability for a way out, and until there is one, we are in a deadlock.

Hong Kong’s rule of law. An imperfect democracy is workable and “passable” in the past for most people, Mr Shieh points out. As long as liberties and rights are largely well-protected, Hong Kong’s political system is largely functioning. But the problem we now face could be the beginning of a slippery slope. The compromise on the rule of law in Hong Kong this social movement has shown could bring an inherent flaw in its political system out into the open, and a foreshadowing of a more aggressive curtailing of freedoms.

Whether it be the anti-mask ban, or earlier on, legality of the actions of certain political figures during the 2014 Occupy Central demonstrations, we have grown used to factoring in courts’ decisions into our narrative of what is right and wrong. It is somewhat ironic that there seems to be an increasing tendency to look to the judiciary, a non-democratic institution, for our answers, when we so persistently call for democracy. Mr Shieh raised an interesting example - in 2011, a woman brought a judicial review against the Director of Environment’s decision to approve an environmental impact assessment, which reported that the environmental impact of the construction of the Hong Kong-Zhuhai-Macau Bridge is adequately addressed by accompanying measures that were proposed by the Government. She failed. The judgement was a thorough examination of technicalities and the legality of approving of the report - a matter of specialist, professional fact, far detached from politics. In fact, the judgement explicitly stated that it was not a pronouncement on the desirability of the project. To the public, however, it was seen as an act of oppression of the court, where the judiciary sided with the government so as to allow it to pursue its objectives at the expense of the environment and an ordinary Hong Kong citizen. Simply put, it was perceived as the court making a political decision. Our system provides judicial review as a mechanism to challenge public decisions, Mr Shieh says, and we all have a right to use it. But we should be reflective and think carefully about what the implications of using the court as a political tool are - indiscriminate use of the judicial review device warps the role of the judiciary and fuels distrust. When people have nowhere to turn to, they turn to the law. In light of low-quality lawmakers and an unpopular government, Mr Shieh says, the judiciary appears to be authoritative, but to resort to the court for answers to political controversies is a deeply unhealthy trend. It is a sign that the public is disillusioned and unable to vent their dissatisfaction in the political arena, and a beginning to a dangerous spiral.

We have grown quick to read into court decisions political opinions, and use legal judgements as backing for our political arguments. Underlying this irony is the dark sign that our politics, and our democratic institutions, are failing us. Mr Shieh discussed former UK Supreme Court Justice Jonathan Sumption’s recent book Trials of the State, in which Sumption points out the dangers, and indeed irony, of referring to the judiciary for answers to what are essentially political questions. Mr Shieh observes that the same dangers lurk in Hong Kong. The failure of politicians and the tendency to seek legal answers to political

disputes warps the image and the role of the judiciary. This spirals into distrust in the judiciary where its decisions do not align with public opinion, and Mr Shieh talks about the need to educate the public on the role of the judiciary. So why have we grown so suspicious of our politics? In short, it is because we feel unrepresented. Our political system is inherently imperfect - Hong Kong is undeniably, to a certain extent, controlled by China. Mr Shieh points out what we so desperately need right now - an effective voice that represents Hong Kong to communicate with China, telling Beijing to trust the Hong Kong people. Hong Kong people trust Hong Kong people. Now we need those with power to do the same, and bring Hong Kong one step closer to a liberalisation of its political system. China needs accurate information about Hong Kong in order to dispel its misjudgements and perhaps paranoia regarding Hong Kong. Only then will satisfactory change come about, and satisfy the Hong Kong people.

Clarity, Understanding and the Way Forward

That leaves with us a clearer understanding of the challenges Hong Kong faces, and of the rule of law. If we are going to weave it into our narrative as much as we have, we should seek to understand it thoroughly, and not use the term rashly. To do so would dilute its value and distract us from the real problems we face. There is no question that there are unresolved issues in Hong Kong’s political system; the question is what the solutions are and where to look for them. This involves reflecting on what are not the solutions, and where not to look. On both ends of today’s chasm, condemning the opposing side excessively by using the phrase the ‘rule of law’, and basing political contradictions in discussions about obeying the law, are not the solutions. If we truly commit to the spirit the rule of law, we must understand that it is not all about abidance. It is the spirit that us and our institutions cannot be above the law, and that the law offers all basic rights of safety and wellbeing; it is the principle that all are equal before the law, and that the law is there to ensure accountability. The rule of law in Hong Kong has indeed been undermined in the past few months, but perhaps not in ways a lot of us think. Mr Shieh gave us a meticulous insight into our current reality - untouched by rhetoric and unswayed by the political storm. It is that steadiness and clarity that we need now in our politics to reinstate accountability, trust and strength in the institutions of Hong Kong.