Firm, fair enforcement of law basis of reconciliation

Updated: 2017-03-30 07:13

By Tim Collard(HK Edition)

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Tim Collard notes that prosecuting those who organize a large, lengthy and disruptive protest cannot be described as a 'crackdown'

The announcement that those accused of breaching the legal norms of civil society during the "Occupy Central" protests of late 2014 have been summoned by the police with a view to arrest and prosecution may appear, to the superficial observer, as a sign of an early crackdown by the new administration, coming as they did the day after Carrie Lam Cheng Yuet-ngor's election as the next Chief Executive. But this would be misleading: The action will have been prepared a long time before Sunday's election, and delayed until now purely so that it would not be a distracting and potentially inflammatory element in the electoral process.

Nonetheless, although Lam is not responsible for the timing, this case will let her administration set its stall out as regards style and principle of governance, and willingness to grasp the nettle as and when required.

One of the fundamental principles on which Hong Kong rests and prospers is rule of law, without fear or favor. It cannot be denied that the "Occupy" street protests represented a challenge to the rule of law, and an attempt to achieve political goals by coercion of a disruptive and potentially dangerous kind. In an open society, where all citizens have recourse to the law if they believe themselves to have been wronged, there should be no necessity for such activities, which rather than reinforcing the rule of law are more likely to undermine it.

The fact that there was and is a certain groundswell of support - in the media, "pan-democratic" camp and other opposition groups - for the aims and even methods of the "Occupy" protestors should not in any way deflect the judges and courts from their pursuit of justice. If the law is persistently broken or disregarded with impunity, it is not just individual victims who suffer - it is the whole fabric of society, and the whole of society. Even those in disagreement with the government in office have a common interest in maintaining the rule of law which is everyone's ultimate protection.

It is also important that justice is not only done but also seen to be done. There has been some discontent about the disproportion of the sentences handed down to the seven police officers who beat an abusive protestor during the turbulence of the "Occupy" movement, and the relatively light treatment of protestors both during the Occupy protests and the Mong Kok riots at the Lunar New Year last year.

It is of course important in any society that police, who are entrusted by society with the right to use limited force in the interests of upholding the law, are properly monitored and held to high standards when they have occasion to use the powers entrusted to them. So it is not wrong that policemen who have exceeded the limits of legal policing should be held to account and punished when proven to have abused those powers; that is a vital component of the rule of law. All the same, it sends a very negative message to those with the responsibility to enforce the law if others who exceed the bounds of the law are not given exemplary sentences as well. The Hong Kong police have an excellent reputation for doing their job without intimidating the ordinary citizen, and deserve respect for that; and it would not be unnatural for them to feel undermined, if their own are given severe sentences while those who indulge in violence to challenge the social order are preserved from the logical consequences of their actions.

As a free society, Hong Kong enjoys a broad spectrum of public opinion, and a government responsive to popular needs will obviously be influenced to a certain extent by popular opinion. But the point of an independent judiciary, as guaranteed in Hong Kong by the Basic Law, is that it should be independent not only of the influences and pressures exerted by government but also of the inconstant and unpredictable winds of public opinion. The resolution of the issues raised by the "Occupy" protests of 2014 should depend not on the acts of government nor on the pressure of noisily expressed elements of popular feeling, but on the letter and spirit of the law. That is what Hong Kong, like other jurisdictions, employs its judges for.

The events of fall 2014 created dissension, uncertainty and bad feeling in Hong Kong. Political pressures have so far delayed the resolution of these issues and it is good that authorities have signaled that this resolution will be delayed no longer. Justice delayed is justice denied and a line must be drawn under this issue without further ado. What is needed now is reconciliation, in the common interest, between differing political views and factions in Hong Kong. And this, in a stable society, can only be achieved on the firm basis of the unbending application of the rule of law.

The author is a sinologist and former British diplomat in Beijing for nine years. He now works as a freelance commentator and writer.

Firm, fair enforcement of law basis of reconciliation

(HK Edition 03/30/2017 page8)