The recent sentencing of seven Hong Kong police officers for the assault of an Occupy protester sparked a public backlash. While the protester remains at large, the seven officers enforcing the law at the scene have been jailed. The court ruling sent a strong message that, in such social protest movements, the presiding judge’s moral support lies with the protester, while the hands of the law enforcers are tied.
As a consequence, protesters will become even more radical. The excessive punishment for the seven officers, at a time when Hong Kong society is in chaos, has prompted a rethink of the value of the rule of law and how it can support the city. Then there are questions about the nationality of the judge, the rationale behind the ruling, impartiality, and possible political motives behind the ruling.
The case also presents a predicament for the city’s law and order: if there is another Occupy protest, would frontline officers still be reliable and dedicated enough to maintain law and order?
The court ruling was handed down according to common law methods and arguments about rights. It stresses the rights and freedoms of the protester without equal regard to the discretion which the police could exercise while enforcing the law during a protest. The judge has failed to strike a balance between freedom and order.
Police officers arrest a pro-democracy protester during the Occupy Central protests in November 2014.
Social protest movements are extraordinary events. The judge should have differentiated the powers that the police are allowed to use in such situations from those normally allowed. The Occupy protests were unprecedented in Hong Kong, and police were working in an emergency, where there were no comprehensive guidelines to follow. In such situations, frontline officers have to make decisions on the spot about what action to take and how much force is appropriate. How could a judge’s ruling override the professional judgment of officers on the job?
The judge who presided over the case of the seven officers failed to fully understand and apply the concepts of jurisprudence for law and order.
There is a need to study how the judiciary is scrutinised. In fact, a monitoring mechanism does exist under the Basic Law framework, but it does not work efficiently. First, the political appointment system for judges is a formality. Second, the dismissal system for judges has not been activated effectively. Third, the National People’s Congress’ powers of interpreting the Basic Law, a constitutional supervisory arrangement, are exercised only occasionally. Thus, the oversight mechanisms should be overhauled, so they are more open and transparent.
In addition, an independent non-governmental body should be set up to comment on and assess a court ruling and its consequences on the judicial system. The judiciary relies on public money, so the public have a right to monitor it. It has nothing to do with contempt of court. A judiciary that does not allow itself to be monitored is not a good judiciary.
Hong Kong lawyers arrive at the Court of Final Appeal after taking part in a silent march in November last year against an interpretation of the Basic Law on oath-taking by the National People’s Congress.
The case of the seven police officers reflects the multiple difficulties in the transformation of Hong Kong’s rule of law. It also brings home the tension that exists, in spirit and in implementation, between the holistic framework of the Basic Law and the local character of the judiciary. For the rule of law to work well, a political consensus must first be reached. A system of law must be bounded by a political order before it can be accepted as universal.
The extent to which Hong Kong’s common law and the city’s judicial system are compatible with the nation’s law, and problems with the mechanisms for safeguarding the system – these reflect the shortcomings of the Basic Law. They are the result of the limitations of the legal principles and system at the time the Basic Law was being drawn up, in a “face-saving project” for the handover. Today it deviates from what a modern legal system should be like. Twenty years after Hong Kong’s sovereignty returned to China, it is time to examine these problems with the Basic Law and rectify them through a “second-phase project”.
Tian Feilong is an associate professor at Beihang University’s Law School in Beijing, and a member of the One Country Two Systems Youth Forum Ltd