Millions of messages and videos purporting to convey different theories, opinions, commentaries and images are being released, circulated and read via social media every second of the day. Social media is thus an extremely effective platform for the spread of information, as well as disinformation (defined as content that is deliberately false) and misinformation (content that is accidentally false).
To combat the penetrating impact of the spread of dis/mis information, hundreds of fact-checking organisations have been set up in the international arena over the past few years.
As legal practitioners, we are trained to develop critical thinking and to maintain a healthy sense of scepticism. We must beware that what we are being told may not represent the full story because many a times, clients and witnesses will leave out important details. We must always take the time to verify the information. When faced with an overload of online information, this unique training is particularly useful and we should use it not only for the benefit of ourselves, but for the benefit of the wider public.
Legal practitioners possess a deep knowledge of the substantive law and legal developments and a clear understanding of the functions of law in society. The core values embraced by the legal profession, namely, independence of the Judiciary, equality before the law and respect for fundamental human rights are intrinsic to the training of a lawyer. This enables us to fulfil a critical role in society to defend the rule of law, maintain the fair administration of justice and facilitate true access to justice.
With the increasing complex geopolitical situation, different public commentaries floating around in the media may be generated for various motives. Of particular relevance to the legal profession will be those involving discussions on the rule of law and judicial independence in Hong Kong. These core values form the cornerstone of our community and are the key to the success of our hometown. We must not allow them to be tainted in any way by misinformation. The proper way to filter information is to stay focused on the objective facts that have been verified.
Any discussion on “one country, two systems”, the rule of law and independence of the judiciary must, as a starting point, refer to the Basic Law, which is a constitutional document enacted by the National People’s Congress in accordance with the constitution of the People’s Republic of China.
The constitutional model of “one country, two systems” is embodied in the provisions of the Basic Law. Whenever an opportunity arises, it will always be helpful to remind people of some of the fundamental principles that are expressly set out in the Basic Law. Article 2 of the Basic Law provides that the National People’s Congress authorises Hong Kong to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication in accordance with the provisions of the Basic Law. We enjoy a constitutional guarantee of the principle that our judges are to exercise judicial power independently and free from any interference. Article 80 of the Basic Law provides that our courts at all levels shall be the judiciary, exercising the judicial power of Hong Kong and that such judicial power, according to Article 85, is to be exercised independently, free from any interference. Article 84 states that judges and judicial officers shall adjudicate cases in accordance with the law. The Judicial Oath taken by all judges and judicial officers requires adherence to the law and the safeguarding of the law without fear or favour. Article 35 provides that Hong Kong residents shall have the right to confidential legal advice, access to the courts and choice of lawyers for timely protection of their lawful rights and interest or for representation in the course and to judicial remedies.
All these requirements under the Basic Law are legal provisions to be followed and enforced.
Apart from looking at the source documents, i.e. the law itself, other objective information sources, for example, court judgments, should also be taken into consideration. In accordance with the principle of open justice, all court hearings, save for some very limited exceptions such as those involving children, are open to the public. Judgments and reasons for verdicts and sentencing for the District Court and above are all publicly available on the Judiciary website. Any comments alleging deviations from the law or any core principles should be critically analysed with reference to reasoned court judgments dealing with the relevant provisions or principles. For example, in considering various public comments made about bail applications under the National Security Law (“NSL”), the judgment of the Court of Final Appeal on HKSAR v Lai Chee Ying ( HKCFA 3 dated 9 February 2021), which explained in detail the court’s interpretation of Article 42(2) of the NSL should first be studied before forming an informed conclusion on any alleged “deviations”.
Change, no matter it is change arising from legal, social, economic or political developments, is constant. During this inevitable process, all sorts of theories and concepts supported by dis/misinformation may be generated to advance change in certain directions. As legal practitioners, we are in a better position to educate and cultivate a healthy sense of scepticism and to promote the importance of not losing sight of the basics - adherence to the core values of the rule of law and the independence of the judiciary in accordance with our unique constitutional model of “one country, two systems”. Let’s do our part for the benefit of the future of Hong Kong.