Be You Never so High, the Law is Above You

On 18 December 2019, the Bauhinia Foundation Research Centre published the key findings of a survey that it had commissioned to examine the trend of public opinion on the rule of law in Hong Kong. The survey was conducted on the basis of responses collected from mid-October to the beginning of November 2019 when the public had witnessed over four months of violent confrontations that showed no signs of ending.

An estimate 38 percent of the respondents in the survey agreed that people were ‘obliged to obey the law’, compared to approximately 54 percent in 2018. Further, an estimate 40 percent of the respondents agreed to the statement that ‘breaking the law for reasons of social justice is acceptable’, compared to approximately 20 percent in 2018. These responses highlight a worrying trend of a declining level of respect for the law and an increasing tolerance level of criminal acts.

The rule of law underpins Hong Kong’s way of life and success. Concerns about the rule of law being at risk or even the perception of such concerns could damage both. The findings of the survey have set alarm bells ringing and urgent actions must be done to restore respect for the law.

The development of Hong Kong has been well supported by a robust legal system over the years. The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law (subject to any amendment by the legislature of Hong Kong) continue to apply. The common law with its emphasis on fairness, justice, adherence to legal principle and the spirit of the law has served Hong Kong well reinforcing public confidence in the strength of its legal system in the fair administration of justice.

On top of a clear, publicised and well-settled legal framework, Hong Kong also has a well-established system of checks and balances that is of crucial importance in ensuring that the law applies to everyone equally.

One core principle embodied in the rule of law is equality before the law, which is expressly provided for in Art. 25 of the Basic Law. To ensure that no one is above the law, the Basic Law has delineated clearly the separate functions of those who make, those who administer and those who adjudicate upon the law.

The Government is responsible for the executive functions including the formulation and implementation of policies and the conduct of administrative affairs (Art. 62 of the Basic Law) while the power to enact, amend and repeal laws and to raise questions on the work of the Government is vested in the Legislative Council (Art. 73 of the Basic Law).

For the adjudication role, it falls on the courts of Hong Kong. Article 84 of the Basic Law provides that the courts shall adjudicate cases in accordance with the laws applicable in Hong Kong as prescribed in Art. 18 of the Basic Law and may refer to precedents of other common law jurisdictions. Article 85 provides that the Hong Kong courts shall exercise judicial power independently, free from any interference.

The system of checks and balances operates to ensure that no one can be above the law. Everyone is equally bound by and entitled to the protection of the law.

The findings of the survey however seem to suggest a phenomenon that more people tend to believe that somehow, they do not have to remain bound by the law for reasons of social justice. There is a line separating the lawful exercise of constitutional rights, as evidenced by peaceful demonstrations, from unlawful activity, which is and should be subject to sanctions and constraints. Further, the crimes that have been allegedly committed in breach of the law in the past few months (including vandalising private and public properties, arson at public and private areas including the vicinity of court buildings, violence to persons to redress personal grievances or political differences, paralysing access to the Hong Kong International Airport, blocking roads and damaging public transport and railway stations in open defiance of court injunctions) had no connection whatsoever with the pursuit of social justice. Under no circumstances can these criminal acts be tolerated in a civilized society.

The implication of the survey findings that it is acceptable to permit some people to break the law must be corrected as it goes against the very principle of equality before the law.

Chapter III of the Basic Law sets out the fundamental rights guaranteed to Hong Kong residents. While enjoying the protection of the law which gives us the comfort of security of person, property and an orderly society, we must not forget that the system only works if everyone also subscribes to the underlying spirit of the law and remains bound by it. Article 42 of the Basic Law provides that Hong Kong residents and other persons in Hong Kong shall have the obligation to abide by the laws in force in Hong Kong.

It must therefore be understood very clearly that there will be legal consequences for breaking the law and in accordance with the law, those in breach will be brought to justice through our independent legal and judicial systems.

Jurisdictions: 

President

The Law Society of Hong Kong