Given the recent comments by Zhang Xiaoming, the head of the central government’s liaison office in Hong Kong, it might be a good time to consider the role an independent judiciary — and more generally an understanding of the rule of law — has on our sense of being Hong Kong people.
Let us first consider what was said earlier this month at an event to mark the 25th anniversary of the Basic Law.
Referring to the separation of powers between the executive and administrative branches of government and the judiciary, Zhang was reported as saying “Hong Kong is not a political system that exercises the separation of powers; not before the handover, not after the handover,” and that such a separation of powers could apply only to a sovereign state. He went on to say that the chief executive “possesses a special legal position that transcends the executive, the legislature and the judiciary.”
Chief Executive Leung Chun-ying, supported by the usual crowd of pro-government mouthpieces including Executive Councillor Regina Ip and Secretary for Justice Rimsky Yuen, were soon out defending a statement that seemed to everyone I know, regardless of political persuasion, a clear violation of what was guaranteed by the Basic Law.
Article 2 of the Basic Law states that the National Assembly cedes Hong Kong the authority to “exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication”; article 19 that Hong Kong “shall be vested with independent judicial power”; and article 85 that local courts “shall exercise judicial power independently, free from any interference”.
It is not simply a case of needing to understand the Basic Law “from each other’s perspective”, as Yuen put it, when one perspective is quite clearly not what was understood or agreed upon as written. It has been extremely disappointing to see how far some people are prepared to go to to avoid having to speak truth to power, including quoting Deng Xiaoping’s position at the start of the Sino-British negotiations that would result in the Joint Declaration, after which the Basic Law was drafted. A starting position should not be taken as representative of an end position.
The tragedy of these negotiations is that they are to my knowledge the only post-colonial agreement that did not involve the people whose lives would be directly affected by the change of sovereignty. Compounding this has been not only reluctance but outright refusal from Beijing to acknowledge and respect the wishes of Hong Kong people since the territory’s return to our motherland. Hong Kong people are being ordered to identify with a nation that neither respects nor represents them.
Since 2007 I have spoken with close to 10,000 people about how they identify with Hong Kong as home. I have yet to meet anyone who in their identification with this city, and this is a personal identification, does not consider the rule of law as integral to their understanding of being a Hong Kong person. This is expressed in many ways.
When people speak of Hong Kong being a safe city, it is said from the position of confidence in the police and the legal process. The point is not that the exercise of authority has made Hong Kong safe, but that this authority is understood to be exercised fairly, and that this relationship with power has shaped a community that is, on the whole, law-abiding. People respect the law. They do not fear it.
Consider now the position on the Mainland. Can it be said that the law is respected in the same way as to be considered a core institution representative of China and the Chinese people? The mainland’s system and understanding of the law would represent a serious regression for Hong Kong should they be adopted. It would not only set this city back and represent a loss of our “competitive edge” as a place to live and do business. It would, more importantly, would undermine the foundations on which we understand the nature and dynamics of authority and power, and of our personal position and relations with officialdom.
The significance of this understanding is reflected in how surprisingly many people in Hong Kong will point specifically to the rule of law as being important to them. This understanding is not for a legal or political abstraction, but is instead personal. It is an understanding that is fundamental to how we construct our sense of self and how we engage with and connect with the world around us. It defines in us a sense of security and of individual rights grounded on an understanding of equality before the law. The way we relate to authority, and how we define ourselves and relate to each other, owe much to our presumption that ours is a society governed by the principle of equality before the law guaranteed by an independent judiciary.
What Zhang Xiaoming challenges in his statement is both the nature and the framework of the “core institutions” around which Hong Kong people understand themselves and their home. It is irrelevant whether these represent a “western” framework or understanding. What matters is what Hong Kong people understand. We have for at least a generation lived in and been shaped by a world that can no longer sustain such marked divisions as to label a practical understanding of the law as “Chinese” or “Western”. There are no isolated histories to justify such distinct perspectives. Power and legitimacy come not from history but from the people from whom they are derived.
Even if we were to believe Beijing, and accept that the Basic Law should be read in a particular way, does this make it right for those whose lives and very sense of self will be changed? If Hong Kong people have so fundamentally misunderstood, and have so misread what has been put to writing, the Basic Law has little value other than to those who know Beijing’s mind.
In adopting Zhang’s perspective of Hong Kong we must fundamentally alter not only what Hong Kong is but what it means to us, and how we understand ourselves. How would growing up in a city where the law derives its authority from and is subservient to the closed politics of a city two thousand kilometres away affect who we are? Would we relate to Hong Kong in the same way, and who would we be?