Originally published in The Nation. Republished with permission.
The Chinese legislature has now told Hong Kong’s courts in no uncertain terms that only Beijing can decide what’s constitutional in the territory. This could be a fatal blow to Hong Kong’s already shaky judiciary independence.
On Monday, while police laid siege to the student occupation of the campus of Hong Kong Polytechnic University, Hong Kong’s High Court struck down the ban on wearing facial coverings at public assemblies that was introduced last month by the city’s chief executive, Carrie Lam. The ban, instituted through the Emergency Regulations Ordinance (ERO), has been used by police to crack down on protesters in the longest-running uprising in the territory’s history. The court found the ban too broad and unconstitutional, noting that “its conditions for invocation [were] uncertain and subjective.” But then, on Tuesday, the Standing Committee of the National People’s Congress (NPCSC)—China’s legislature—dismissed that decision, declaring that Hong Kong courts do not actually have the power to decide the constitutionality of matters relating to the Basic Law, Hong Kong’s mini-Constitution.
A former Hong Kong chief justice called Beijing’s intervention “surprising and alarming.” But it’s just the latest symptom of how insubstantial Hong Kong’s much-vaunted rule of law really is.
When the United Kingdom handed over control of its former colony to China in 1997, it was promised that Hong Kong’s judicial system would be able to operate separately from Beijing’s until 2047—an arrangement called “One Country, Two Systems.” This was intended to guarantee that Hong Kongers (who had no say on the terms) would hold on to rights, such as freedom of speech, that residents of mainland China don’t have. But this agreement has been steadily eroded in the 22 years since; when it comes to Hong Kong law, it’s clear who holds veto power. In the last few years, the Chinese government has increasingly intervened in Hong Kong’s judiciary by issuing what it calls “interpretations,” ruling on issues ranging from the legality of flag desecration to the way in which elected politicians can be sworn in to the territory’s legislature—interpretations that Hong Kong then has to follow. In 2016, pressure from Beijing resulted in democratically elected, pro-democracy legislators’ being barred from taking office because they did not swear allegiance to Hong Kong as part of China.
As the Hong Kong protests continue to escalate and Chinese soldiers have been seen emerging from their barracks, the timing of the NPCSC’s most recent statement is cause for concern. Hong Kong courts have always been able to decide the constitutionality of laws, even while they have been bound to follow the NPCSC’s interpretations. But Tuesday’s statement about the mask ban—a direct rebuke of Hong Kong’s courts—may signal a new more interventionist approach.
Even without Beijing’s overt intervention, the Hong Kong government itself uses the law as a tool of suppression. The unconstitutional mask ban was only the most recent example; earlier this year saw the conviction of the “Occupy 9,” a group of activists who led the 2014 Umbrella movement. The decision to prosecute on newly created and dubious charges of “incitement to incite” public nuisance signaled that the Hong Kong government intended to punish activists with all the legal tools at their disposal.
The current saga exposes another crucial feature of Hong Kong politics: a limiting of the political imagination, in order to mobilize around one central cause. Hong Kong has always been stuck between a rock and a hard place, and its politics have followed suit; many Hong Kongers will defend an unsatisfactory status quo because the alternative—total rule by Beijing—seems so much worse. But the focus on maintaining what Hong Kong already has takes precious energy away from agitating for real improvements to the social and material conditions in the city.
The way that Hong Kong’s government has weaponized the rule of law reveals its precariousness. What we need is a more fundamental critique of the rule of law itself.
The linchpin of this difficult politics has always been the rule of law—the idea that laws should apply equally to everyone regardless of status or political office, exemplified in Hong Kong’s common law system and its independent judiciary. Many take this to be a central justification and benefit of the “One Country, Two Systems” policy. But as police brutality escalates and the true nature of the city’s government is revealed, Hong Kongers are right to be skeptical.
The way that Hong Kong’s government has weaponized the rule of law reveals its precariousness, and should serve as a warning against accepting the law’s totalizing logic and its narrow vision of justice. What we need is a more fundamental critique of the rule of law itself.
The emptiness of rule of law should be apparent in the fact that both sides of Hong Kong’s otherwise intractable political divide—both pro-democracy and pro-Beijing politicians—can make earnest appeals to protect it. A concept this malleable offers no road map for justice, equality, or liberation; it does not prescribe anything beyond the maintenance of the status quo’s basic ideals, resulting in conservatism and inertia. Belief in Hong Kong’s rule of law eclipses more radical possibilities.
The rule of law is the idea that the actions of individuals, institutions, and those in positions of authority are all governed by the same set of rules. But its exact nature is hard to pin down. Some legal scholars argue that the rule of law makes no prescriptions about the content of laws, only that they must be enacted and enforced by fair procedures and processes. Other scholars argue that rule of law also encompasses certain fundamental “rights,” such as equality or democracy.
One thing is certain: The rule of law, as a system of governance, presupposes the existence of fair structures and systems. And those simply do not exist in Hong Kong. The rule of law focuses on whether laws have been broken, not whether the law itself is broken. It demands no structural changes because it assumes that the rules everyone must follow are, at their root, just.
Nowhere is this more apparent than in the city’s legislature. Hong Kong’s Legislative Council is deliberately weighted in favor of pro-Beijing business interests: So-called “functional constituencies” allow professional sectors such as insurance, financial services, and real estate to elect nearly half of the city’s lawmakers, taking the absurd capitalist fiction of corporate personhood to its logical conclusion. This deficiency in representation hinders its ability to act as a check on Hong Kong’s chief executive, who is not democratically elected. What chance does an anti-capitalist politics have when Hong Kong law treats the real estate business as if it were a citizen?
The Hong Kong courts’ ruling that the ERO is unconstitutional may have been a rebuke to Carrie Lam—but Beijing’s dismissal of those courts’ power is an outright attack on judicial independence. The rule of law in Hong Kong has always relied on the goodwill of Beijing, but this makes it even more explicit. It is precisely this weakness that hollows out the rule of law as a concept in Hong Kong: Without the guarantee of an independent judiciary, the decisions of legal and political institutions become meaningless.
Despite its shortcomings, the rule of law continues to occupy precious ideological space. The pro-democracy camp in Hong Kong is forced to thread the needle: Its supporters must appeal to values already popular with Hong Kongers (rule of law, freedoms of expression and assembly) so they can agitate for one that Hong Kongers have never experienced (democracy). But this dance leaves no space for serious reconsideration of how politics, society, and life in Hong Kong are organized.
Beyond thinking about how to ‘restore’ the rule of law in Hong Kong, can we explore how to make the law serve justice, rather than limiting ‘justice’ to what the law prescribes?
At the heart of the formal conception of the rule of law is the idea that as rational actors, we deserve equal treatment and procedural regularity. Rule of law gives the illusion of fairness where there is none; it forecloses possibilities for radical, redistributive options because it insists that Hong Kong has already achieved equality. But its very existence becomes a form of control itself. It leaves the hegemony of Hong Kong’s corporate interests unchallenged because it is concerned only with procedural equality—not economic equality. For the business interests and oligarchs who elect the city’s lawmakers, this is part of what makes maintaining the status quo, including rule of law, so attractive.
The protest movement’s most popular slogan calls to “liberate Hong Kong.” But it remains unclear what a liberated Hong Kong would look like, or whether everyone agrees on what Hong Kong needs liberating from. The protesters’ “five demands” provide little guidance: the withdrawal of the Extradition Bill (which finally happened last month), an independent inquiry into police brutality, the withdrawal of police’s classification of the June 12 protests as “riots,” the release of all arrested protesters, and full universal suffrage. (Some, but not all, are also adding a sixth demand: the dissolution of the Hong Kong police.)
While these shared demands have allowed for a big-tent approach to the protests, appealing to Hong Kongers of many political persuasions, we can detect rule of law in at least one of the asks: that which demands an independent inquiry into police brutality, rather than one by the police-affiliated Independent Police Complaints Council. It assumes that if brutality can be exposed, then Hong Kong law, as it stands, can and will punish such behavior, rather than questioning whether the law is the best tool for this task. An independent inquiry into police brutality in the context of a political system that is built to maintain the interests of capital and the state will only end up scapegoating a select group of police officers, instead of holding the entire system responsible.
Beyond thinking about how to “restore” the rule of law in Hong Kong, can we explore how to make the law serve justice, rather than limiting “justice” to what the law prescribes? The emergence of the sixth, albeit unofficial, demand of the Hong Kong protesters—the abolition of the Hong Kong Police Force—is a hopeful step, indicating that many Hong Kongers have begun to transcend the rule of law in their political imagining. This opens up a possibility for abolitionist politics. We can also draw inspiration from a district court decision in Taiwan that recently granted compensation to protesters who were injured while being forcibly removed from their occupation of a legislative building; the decision recognizes the validity of protest and dissent, rather than using it as an excuse to violate protesters’ human rights.
In the wake of the latest declaration from the NPCSC, the search for alternative imaginings of autonomy in Hong Kong becomes more urgent. Beijing’s interference in Hong Kong’s supposedly independent judiciary is nothing new, as previous law “interpretations” have shown. But it has been a long summer of unprecedented developments in Hong Kong, and the end of rule of law as we know it in Hong Kong must open up other possibilities for imagining the city’s future.
We should be ambitious about the kind of society we want, and think seriously about how to ensure the radical democracy, equality, and accountability it would require. Hong Kongers must move beyond adhering to the rule of law to critique the unfairness of our institutions and the influence of capital over precious common resources, such as land. We must rethink our treatment of young people, Hong Kongers of South and South East Asian descent, the elderly, people living with disabilities, migrant workers, and those who identify as LGBTQ. If we are going to be loyal to the rule of law, it must protect the rights of the most vulnerable and marginalized in society.
Carrie Lam has said that protesters are intentionally undermining the economy and that they have “no stake” in society. But the Hong Kongers who have taken to the streets understand the precariousness of their own situations better than anyone, and they reject the encroachment on their legally guaranteed civil and political rights. Now they must begin the work of negotiating a political identity that goes beyond contrasting “their” rule of law with China’s legal system. In a city of deliberate inequality, leftist answers to these looming questions become more and more necessary. This means imagining ambitiously—beyond current concepts of justice and rights, beyond liberal democracy, and ultimately toward social and economic justice.